Decision-Making Trends of the Rehnquist Court Era: Civil Rights and Liberties Cases
Smith, Christopher E., Hensley, Thomas R., Judicature
Despite its conservative orientation, the Rehnquist Court did not reverse major liberal precedents of the Warren and Burger courts. It decided nearly half its civil rights and liberties cases liberally and even produced its own liberal precedents.
The announcement of Justice Sandra Day O'Connor's resignation and the death of Chief Justice William Rehnquist signalled an important transitional moment for the United States Supreme Court. After a remarkably long period of stable membership, the nation's most powerful judicial institution may be poised to move in new directions. The anticipation of changes in the justices' decision making stems not only from the replacement of two key members of the Rehnquist Court, but also from the recognition that issues of age and health may generate additional resignations in the foreseeable future.
With the chief justice's death, how do we assess the decision-making trends of the Rehnquist Court era? For several decades, common reference points have served as the basis for evaluating the Supreme Court. The Warren Court (1953-1969) transformed constitutional law with respect to civil rights and liberties. Its record provided a baseline against which subsequent eras are compared. Although it is widely praised for its role in delegitimizing racial discrimination, its decisions expanding First Amendment protections and rights for criminal suspects generated significant criticism.
Beginning with Richard Nixon, Republican presidents sought to appoint new justices who would diminish or undo many of the rights-expanding decisions of the Warren era. During the Burger Court era (1969-1986), new appointees contributed to a diminution of criminal justice rights and terminated the further expansion of other rights. However, the Burger Court never completed the constitutional "counterrevolution" anticipated by some observers. It preserved many of the Warren Court's important precedents and, indeed, contributed to an expansion of rights in areas such as abortion, affirmative action, gender discrimination, and legal protections for prisoners that the Warren Court did not address.
At the dawn of the Rehnquist Court era, Herman Schwartz asked, "How much of a repudiation of the Warren and Burger Court rulings promoting individual rights and liberties are we likely to get?"1 Over two decades, both journalistic and scholarly evaluations point to evidence that the Rehnquist Court never fulfilled conservatives' hopes for reversing many of the Warren and Burger Court's rights-expanding decisions.2 For example, journalistic reports labeled the high court as "the O'Connor Court"3 or "the Stevens Court"' to claim that specific colleagues of Chief Justice Rehnquist were exceptionally influential in steering the Court away from conservative outcomes in key cases. Scholarly analyses, for example, identified philosophical disagreements among Republican appointees5 and surprising combinations of justices comprising five-member majorities.6
Analysts of the Rehnquist Court's performance agree about "the generally conservative direction of the Court's decisions."7 Not surprisingly, many evaluations of the Rehnquist Court by scholars and journalists rely heavily on selected examples to demonstrate conservatizing trends with respect to some issues and rights-preserving decisions with respect to others. However, such analyses cannot evaluate how conservative the Rehnquist Court has been unless they rely on systematic evidence. This article relies on data concerning the Rehnquist Court's decision making in civil rights and liberties cases in order to contribute to a more comprehensive assessment of the Rehnquist Court.
Method of analysis
We assess the conservatism of the Rehnquist Court through use of quantitative data from Harold J. Spaeth's Supreme Court Judicial Database.8 Data on civil rights and liberties decisions compare the decision-making trends of the Rehnquist Court era with those of the earlier Warren and Burger eras. …