It's the O'connor Court: A Brief Discussion of Some Critiques of the Rehnquist Court and Their Implications for Administrative Law

By Rappaport, Michael B. | Northwestern University Law Review, Fall 2004 | Go to article overview

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


I. INTRODUCTION

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. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • A full archive of books and articles related to this one
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

It's the O'connor Court: A Brief Discussion of Some Critiques of the Rehnquist Court and Their Implications for Administrative Law
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

    Already a member? Log in now.