The Rehnquist High Court?

By Wagner, David | Insight on the News, July 28, 1997 | Go to article overview

The Rehnquist High Court?

Wagner, David, Insight on the News

The Supreme Court seems to have formed a majority around Chief Justice Rehnquist's conservative views: keeping Congress within its assigned powers, and rejecting the cultural elites' attempts to create new constitutional rights. But will the center hold? Here is a look at the high court's latest rulings, with insight as to what it all means.

For liberals, something at the Supreme Court is quiet -- too quiet Another court year has ended, and there hasn't been a singe angry dissent by Justice Antonin Scalia. He actually wrote the opinion of the court in one of those late-breaking cases, and was a silent or concurring member of the majority in the rest.

In the final week of the session, the Supreme Court:

* allowed public-school teachers to give lessons in religious schools;

* upheld state laws banning assisted suicide; and

* struck down federal statutes aimed at protecting religious liberty, banning indecency on the Internet and requiring state police to help enforce a federal gun-control scheme.

"It's quite a change from last year, when it felt like the roof was caving in," notes Steven Calabresi, professor of law at Northwestern University and a former clerk to both Justice Scalia and appeals court Judge Robert H. Bork.

If there is a dominant theme in the court's recent cases, it is reining in the powers of Congress, as well as the court's own tendency to create new constitutional rights by meshing "due process" and "equal protection" with elite intellectual fashions. John Maginnis, a former assistant attorney general in the Reagan and Bush administrations and now a professor of constitutional law at the Benjamin Cardozo Law School in New York City, sees the overarching theme of the justices' work this year as "skepticism of federal institutions, including, up to a point, themselves."

"In contrast to the Warren court, which often struck down state laws," Maginnis tells Insight, "this court is protecting the states against interference either by Congress or by the Supreme Court itself. It's returning to the role that Federalist Paper #78 said it would play, of acting as a check on the federal government. Antifederalists at the time said the court would be part of the federal government, and therefore would have no interest in checking federal power. In the Warren years it looked as though they might have been right. But now, it looks like the court is stepping in to protect the states against federal aggrandizement."

In Printz v. U.S., the Supreme Court struck down a key portion of the Brady Act, a gun-control measure. State law-enforcement officers objected to being commanded by the federal government to conduct background checks on would-be gun purchasers. The court agreed, holding that this requirement violated the 10th Amendment, which protects state sovereignty. Calling Printz a "great victory" for states, Calabresi notes: "It's the first time in a federalism case that they've been specific about what Congress can't make states do. They held specifically that Congress cannot conscript state officers to enforce a federal program."

In the two cases dealing with the question of a constitutional right to physician-assisted suicide, Vacco v. Quill and Washington v. Glucksberg, the court held unanimously that no such right is implied by the Constitution. This unanimity was confined to the result; on the reasoning, there was a 7-2 split. But even that much consensus is unusual in a case dealing with issues of life, death and privacy.

While some observers think the high court finally is pulling out of the rights-creating business, others think the center-left justices merely are going along with the conservative justices for tactical effect.

"I don't think for one minute that the Supreme Court has given up on creating new rights favored by the elites," says Robert George, professor of political science at Princeton University and a former scholar-in-residence to Chief Justice William Rehnquist. …

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