Progressive Political Theory and Separation of Powers on the Burger and Rehnquist Courts
Claeys, Eric R., Constitutional Commentary
The Rehnquist Court is widely believed to be the most conservative Court in recent memory. Especially in the legal academy, the Rehnquist Court has a reputation as being conservative in its politics, (1) originalist in its interpretive commitments, (2) and suspicious of the New Deal. Mark Tushnet wonders whether the Rehnquist Court has shaken the American constitutional order so profoundly that "the New Deal/Great Society political system is no longer in place." (3) Tushnet is no supporter of the Rehnquist Court, (4) but many of the Court's defenders and admirers share the same view. In the most ambitious defense of the Rehnquist Court to date, John McGinnis insists that the Court's "reflects a more skeptical view of centralized democracy in an era in which there is more elite skepticism about the prospects of nationally mandated social reform than existed in the eras of the New Deal and Great Society." (5)
As widespread as this view is, there is at least one good reason to doubt it. It treats Supreme Court Justices too much as trend setters and too little as trend followers. Most Justices get their offices by dint of distinguished practice or public service, not extensive post-graduate academic training. Quite often, they assume the truth of normative opinions that either are conventional among legal elites when they serve on the Court, or were so when they went to law school. As John Maynard Keynes once explained, public officials often write into law political philosophy they learned "from academic scribblers of a few years back." They do so not "immediately, but after a certain interval; for in the field of economic and political philosophy there are not many who are influenced by new theories after they are twenty-five or thirty years of age." (6)
Obviously, no single article could explore this doubt in any comprehensive way. Yet there is a surprisingly simple way to demonstrate that it deserves attention--to reexamine how the Rehnquist Court has treated separation of powers. Separation of powers law counts as one of the great puzzles of the Rehnquist Court. Knowing what constitutional scholars knew in 1987, (7) there was every reason to expect that the Rehnquist Court would put separation of powers front and center in its constitutional agenda. Word for word, separation of powers takes up more space in the Constitution than any other doctrine. Chief Justice Rehnquist and Justice Scalia were widely known to sympathize with "original intent" principles of interpretation. (8) More important, as this Article will show, the Burger Court had left the Rehnquist Court with several excellent originalist precedents. Later, the Rehnquist Court would change the law of constitutional federalism using the precedential equivalent of whole cloth. (9) By contrast, at the beginning of the Rehnquist Court, the Court had all the precedents it needed to launch a sweeping revolution in separation of powers.
Yet there was no revolution. (10) The Rehnquist Court has declined several invitations to breathe more life into originalism through separation of powers law. In the process, the Court has continued a trend that has frustrated constitutional scholars for years, veering erratically between originalist and non-originalist interpretive methodologies with barely any explanation. (11) Did the Justices on the Burger Court take originalism seriously from the beginning? If not, why have the Burger and Rehnquist Courts applied originalism at all? Many academics have criticized the Burger and Rehnquist Courts for their inconsistency, (12) but no one has yet explained these Courts' track records convincingly.
This Article explains that puzzle. The Burger and Rehnquist Courts have used originalism and non-originalism selectively. Both Courts have chosen one or the other depending on which better promotes a theory of government this Article calls "the Progressive theory of apolitical administration. …