It's the O'connor Court: A Brief Discussion of Some Critiques of the Rehnquist Court and Their Implications for Administrative Law
Rappaport, Michael B., Northwestern University Law Review
Michael Herz's article1 makes an important contribution to our understanding of both administrative law and the Rehnquist Court. Noting that nothing too significant has happened in the Supreme Court's administrative law jurisprudence under Chief Justice Rehnquist, Herz attempts to use the Court's administrative law decisions as a means of understanding the Court more generally and of assessing whether the leading critiques of the Court as a judicially supremacist, conservative institution are accurate. Herz's conclusion is important. After reviewing the Rehnquist Court's administrative law decisions, he finds that these opinions largely do not fit the portrayal in the leading critiques.2 In particular, in the two most important areas where one might expect to find evidence of the Court substituting its judgment for that of another branch-the Chevron and the hard look doctrines-Herz finds little.3 Herz's article thus poses a challenge to the critics to explain why the Court allegedly behaves one way regarding constitutional law, but another way concerning administrative law.
This Comment adopts the reverse strategy of Herz's paper. Instead of using the administrative law cases to illuminate the leading critiques of the Rehnquist Court, I want to briefly examine these critiques, draw a different picture of the Court, and then see what light that picture sheds on the administrative law cases. I argue that these critiques of the Rehnquist Court are seriously flawed. First, criticisms, such as Larry Kramer's,4 that view the Court as pursuing an excessive or even unprecedented agenda of judicial supremacy are problematic because they rest largely on the controversial premise that individual rights cases should be treated differently than structural cases.5 Without that premise, the critique falls apart. Second, criticisms that view the Court as unduly conservative are mistaken because they exaggerate the conservative cases and neglect the liberal ones.
Instead of viewing the Rehnquist Court as a judicially supremacist, conservative body, I argue that the Court should actually be viewed as politically moderate and as sensitive to its public reputation-in other words, as the O'Connor Court. Like Justice O'Connor herself, the O'Connor Court sometimes imposes its views on other branches, sometimes not; sometimes it is conservative, sometimes not. It is not a very principled institution, but it is also not extreme. The O'Connor Court is, however, especially concerned about its political capital. Indeed, I argue that some of the cases that critics have seen as arrogant are better understood as unprincipled decisions undertaken to protect the Court's reputation.
This view of the Supreme Court has significant implications for one's assessment of the Court's administrative law decisions. First, it suggests that we should not be surprised by Herz's results. His description of the administrative law cases is consistent with my picture of the O'Connor Court. Second, it suggests a moderate revision in Herz's overall description of the Court's administrative law jurisprudence. My view of the O'Connor Court allows me to interpret some cases differently than Herz does and to find other cases that Herz does not discuss. These cases and interpretations support a view of administrative law that is less supremacist and less conservative than even Herz suggests.
II. THE CRITIQUE OF THE REHNQUIST COURT
Although various articles have criticized the Rehnquist Court, I understand there to be two leading complementary critiques. First, one group of commentators argues that the Rehnquist Court has strongly asserted a largely unprecedented power of judicial supremacy. Associated most clearly with Larry Kramer, this "We the Court Critique" maintains that the Court has refused to seriously consider the constitutional interpretations of the political branches.6 Second, another group of commentators holds that the Rehnquist Court has mainly pursued an agenda of conservative judicial activism. …