Social Education 66(1), pp.34-38
©2002 National Council for the Social Studies

The Rehnquist Court

Erwin Chemerinsky

William Rehnquist became Chief Justice in 1986, replacing Warren Burger, who had served in that role since 1969. Concurrent with Rehnquist’s elevation to Chief from his prior position as Associate Justice, Antonin Scalia joined the Court. A year later, Anthony Kennedy replaced Lewis Powell after the Senate rejected Robert Bork. In 1991, Thurgood Marshall, the first African American to serve on the High Court, retired, and after an intense battle, he was replaced by Clarence Thomas. These four justices—Rehnquist, Scalia, Kennedy, and Thomas–joined Sandra Day O’Connor, who became a justice in 1981, to create a conservative majority. In countless cases, including Bush v. Gore, these five justices have formed the majority in 5-4 decisions. From a practical perspective, they are the Rehnquist Court.

In its initial years, the Rehnquist Court’s frequent dissenters were the liberal Justices William Brennan, Harry Blackmun, and Thurgood Marshall. But the current Court lacks a liberal in their mold. The other justices on the Court—John Paul Stevens, who was appointed in 1974; David Souter, who replaced Brennan in 1990; Ruth Bader Ginsburg, who succeeded Blackmun in 1993; and Stephen Breyer, who took Byron White’s place in 1994—are more moderate, though they function as a consistent dissenting block in the many 5-4 decisions. In the October term 2000, for example, the Court decided 78 cases; 26 were resolved by a 5-4 margin, and in 14 of those, the majority was held by Rehnquist, O’Connor, Scalia, Kennedy, and Thomas.

What have been the characteristics of the Rehnquist Court? How has it differed from other Courts? The following describes several important themes in the Rehnquist era.

 

Decrease in the Size of the Supreme Court’s Docket

One of the least noted characteristics of the Rehnquist Court has been its smaller annual docket. In recent years, the Court has averaged about 75 decisions a term (for example, in the October 2000 term, the Court decided 78 cases; the year before, 73 cases; and the term before that, 75 cases). This average is in sharp contrast with a decade ago, when the Court averaged more than 150 cases each term. The decrease amounts to 50 percent in the last decade and a one-third reduction over the last several years.

There has been neither public acknowledgment of this trend, nor an explanation for it by the Court. There is also no consensus as to why the change has occurred. Perhaps the Court simply wants to take fewer cases and focus on them in greater detail; the average number of pages per opinion has increased significantly during this time. But it is hard to know what is a cause or an effect: Is the Court taking fewer cases so that it can write longer opinions, or is it writing longer opinions because it has fewer cases? Whatever the explanation, the smaller docket is one of the most important characteristics of the Rehnquist Court. Important legal issues must wait longer before they are resolved, as more conflicts among the circuits and the states go unresolved for a longer period.

 

The Rise of Federalism as a Limit on the Powers of
Congress and the Federal Courts

When historians look back at the Rehnquist Court, they will undoubtedly say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, particularly the last five years, the Supreme Court has dramatically limited the scope of Congress’s powers and greatly expanded the protection of state sovereign immunity. All such recent Supreme Court cases have been 5-4 decisions, with the majority comprised of Rehnquist, O’Connor, Scalia, Kennedy, and Thomas. The major cases in which such a trend is evident follow.

 

Limiting the Scope of the Commerce Power

From 1937 until 1995, no federal law was invalidated as exceeding the scope of Congress’s commerce clause authority. But in the past several years, the Supreme Court has made it clear that the judiciary will enforce strict limits on Congress’s power under this provision.

In United States v. Lopez,1 the Supreme Court declared unconstitutional the Gun Free School Zone Act, a federal law that made it a crime to have a firearm within 1,000 feet of a school. The Court held that Congress can regulate under the commerce clause only in three circumstances: 1) the channels of interstate commerce; 2) the instrumentalities of interstate commerce and persons or things in interstate commerce; and 3) activities that have a substantial effect on interstate commerce. The Court found that the federal law prohibiting guns near schools met none of these requirements and thus was unconstitutional.

In United States v. Morrison,2 the Court declared unconstitutional the civil damages provision of the Violence Against Women Act. The provision created a federal cause of action for victims of gender-motivated violence. The United States government and the plaintiff, Christy Brzonkala, defended the law on the grounds that violence against women has a substantial effect on the national economy. The Supreme Court expressly rejected this argument as insufficient to sustain the law. Chief Justice Rehnquist emphasized that Congress was regulating non-economic activity that has been dealt with traditionally by state laws. Moreover, the Court stressed that no jurisdictional requirement in the statute necessitates proof of an effect on interstate commerce.

Unlike the law struck down in Lopez, Congress made detailed legislative findings about the economic impact of violence against women. The Supreme Court expressly found these findings to be inadequate to sustain the law under the commerce clause. The Court concluded, “We accordingly reject the argument that Congress may regulate non-economic, violent criminal conduct based solely on that conduct’s aggregated effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local.”

Lopez and Morrison open the door to constitutional challenges to countless federal laws, especially those that regulate non-economic activities. Federal environmental laws, such as the Endangered Species Act,4 are likely to be challenged on the grounds that the law regulates conduct that does not involve the channels of interstate commerce, the instrumentalities of interstate commerce, or activities with a substantial economic effect. Similarly, federal gun laws, such as those prohibiting possession of a firearm while subject to a domestic violence protection order,5 are likely to be challenged.

 

Narrowing the Scope of Congress’s Powers:
Section Five of the Fourteenth Amendment

Section Five of the Fourteenth Amendment authorizes Congress to enact laws to enforce the Fourteenth Amendment. In City of Boerne v. Flores,6 the Court imposed a significant new limit on Congress’s power under this provision. The Court held that Congress, under Section Five, may not expand the scope of rights or create new rights; Congress may only provide laws to prevent or remedy violations of rights recognized by the courts, and these laws must be narrowly tailored. In City of Boerne, the Court declared unconstitutional the Religious Freedom Restoration Act, which sought to enhance protection of the free exercise of religion. The Court, in an opinion by Justice Kennedy, ruled that Congress was impermissibly expanding the scope of rights and thus usurping the Court’s authority to determine the content of religious freedoms. This dramatic new limit on federal powers puts the constitutionality of many federal civil rights laws in doubt.

 

The Expansion of Sovereign Immunity

Another key change in the law from the Rehnquist Court has been the Supreme Court’s significant expansion in the scope of state sovereign immunity. In Alden v. Maine,7 the Court held that because of state sovereign immunity, a state government may not be sued in state court, even on a federal claim, without its consent. Additionally, in a series of cases, the Court has greatly limited the ability of Congress to authorize suits against state governments in federal courts.

In 1996, in Seminole Tribe v. Florida, the conservative majority of the Court held that Congress may authorize suits against states only pursuant to laws enacted under Section Five of the Fourteenth Amendment, which empowers Congress to adopt statutes to enforce that Amendment.8 As I described previously, in 1997, in City of Boerne v. Flores, the Court limited Congress’s Section Five powers in preventing or remedying violations of rights recognized by the Supreme Court; Congress cannot expand the scope of rights or create new rights.

The combination of Seminole Tribe and City of Boerne already has had a devastating effect on many types of claims. In Florida Prepaid v. College Savings Bank,9 in 1999, the Court held that state governments cannot be sued for patent infringement. In Kimel v. Florida Board of Regents,10 the Court decided that state governments may not be sued for violating the Age Discrimination in Employment Act. In University of Alabama v. Garrett,11 in February 2001, the Court ruled that state governments may not be sued for employment discrimination in violation of Section One of the Americans with Disabilities Act. In each case, the Court, in a 5-4 decision, concluded that Congress was expanding the scope of rights and that the laws could not be justified as narrowly tailored to prevent or remedy constitutional violations.

These decisions mean that state governments cannot be sued when they violate federal law. How can the supremacy of federal law be ensured and vindicated if states can violate the Constitution or federal laws and are not held accountable?

At oral argument in Alden, the Solicitor General of the United States Seth Waxman quoted to the Court from the supremacy clause of Article VI, contending that suits against states are essential to ensure the supremacy of federal law. Justice Kennedy’s response to this argument is astounding:

The constitutional privilege of a State to assert its sovereign immunity in its own court does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that ‘(t)his Constitution, and the Laws of the United States, which shall be made in Pursuance thereof…shall be the supreme Law of the Land.’ U.S. Const., Art. VI.12

 

What, then, ensures that state governments will comply with federal law? Trust in the “good faith” of state governments. Is it possible to imagine that thirty or forty years ago, at the height of the Civil Rights movement, the Supreme Court would have issued such a statement—that state governments simply could be trusted to voluntarily comply with federal law? Justice Kennedy’s words in Alden reflect both the Rehnquist Court’s strong faith in state governments and its desire to limit federal legislative and judicial power.

 

Revival of the Tenth Amendment

A final aspect of the Rehnquist Court’s federalism revival has been its use of the Tenth Amendment as a limit on federal power. In the first third of the twentieth century, the Supreme Court held that the Tenth Amendment reserves a zone of activities for exclusive state control. In Hammer v. Dagenhart, for example, the Court struck down a federal law prohibiting child labor on the grounds that it violated the Tenth Amendment.13 After 1937, however, the Court rejected this view; no longer was the Tenth Amendment seen as a limit on federal power. It instead became a reminder that Congress could not act without express or implied constitutional authority.

Professor Laurence Tribe remarked that “[f]or almost four decades after 1937, the conventional wisdom was that federalism in genera#151;and rights of states in particular—provided no judicially enforceable limits on congressional power.”14 In 1976, the Court appeared to revive federalism as a limit on Congressional powers in National League of Cities v. Usery, where the Court invalidated a federal law that required state and local governments to pay their employees a minimum wage.15 The Court, in an opinion by then Justice Rehnquist, held that Congress could not regulate states in areas of “traditiona#148; or “integra#148; state responsibility. But nine years later, in Garcia v. San Antonio Metropolitan Transit Authority, the Court expressly overruled National League of Cities.16 Justice Rehnquist, in a short dissent, said that he believed that his view would again triumph in the Court.

In two decisions, the Rehnquist Court has done just that and revived the Tenth Amendment as a constraint on Congress’s authority. In New York v. United States, the Court—for only the second time in 55 years and for the first since the overruled National League of Cities decision—invalidated a federal law as violating the Tenth Amendment.17 A federal law, the 1985 Low-Level Radioactive Waste Policy Amendments Act,18 required states to provide for the safe disposal of radioactive wastes generated within their borders. The act provided monetary incentives for states to comply with the law and allowed states to impose a surcharge on radioactive wastes received from other states. Additionally, and most controversially, to ensure effective state government action, the law provided that states would “take title” to any wastes within their borders that were not properly disposed of by January 1, 1996, and then would “be liable for all damages directly or indirectly incurred.”

The Supreme Court ruled that Congress, pursuant to its authority under the commerce clause, could regulate the disposal of radioactive wastes. By a 6-3 margin, however, the Court held that the “take title” provision of the law is unconstitutional because it gives state governments the choice between “either accepting ownership of waste or regulating according to the instructions of Congress.” Justice O’Connor, writing for the Court, said that it was impermissible for Congress to impose either option on the states. Forcing states to accept ownership of radioactive wastes would impermissibly “commandeer” state governments, and requiring state compliance with federal regulatory statutes would impermissibly impose on states a requirement to implement federal legislation. The Court concluded that it was “clear” that because of the Tenth Amendment, “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.”19

A few years later, in Printz v. United States,20 the Court applied and extended New York v. United States. Printz involved a challenge to the federal Brady Handgun Violence Prevention Act.21 The law required that the “chief law enforcement officer” of each local jurisdiction conduct background checks before issuing permits for firearms. The Court, in a 5-4 decision, found that the law violated the Tenth Amendment. Justice Scalia wrote for the majority and revived the phrase “dual sovereignty” to explain the structure of American government. The Court concluded that Congress violated the Tenth Amendment by compelling states to implement federal mandates.

These federalism decisions are the Rehnquist Court’s most important changes in constitutional law. They are a dramatic departure from the approach that the Court had followed for the prior half-century.

 

Following the Conservative Political Agenda

There is no doubt that in several key controversial areas, the Rehnquist Court has moved constitutional law substantially to the right. For example, the Rehnquist Court has greatly narrowed the power of the government to engage in affirmative action. In City of Richmmond v. J.A. Croson,22 the United States Supreme Court held that government affirmative action programs that use race as a factor in decision making will be allowed only if they are proven necessary to achieve a compelling government interest. In Croson, the Supreme Court invalidated a Richmond, Virginia, set-aside of 30 percent of public works monies for minority-owned businesses. The Court made it clear that such racial preferences will be allowed only if there is a compelling reason and only if the government’s interest cannot be achieved through any less restrictive alternative. The Rehnquist Court followed this several years later and in Adarand Constructors, Inc. v. Pena, the Supreme Court said, “[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.”23 Similarly, in a series of cases, the Court has held that the government may not use race as a predominant factor in drawing election districts to benefit racial minorities unless it proves that it is necessary to achieve a compelling government purpose.24

The Rehnquist Court’s conservatism also has been manifested in its allowance of more government aid to parochial schools. In Agostini v. Felton,25 the Court overruled a decade-old precedent and allowed public school teachers to provide remedial education in parochial schools. In Mitchell v. Helms,26 the Court overturned decades-old precedents and held that the Establishment Clause does not prevent the government from providing instructional equipment to religious schools. In earlier cases, the Court had ruled that the government may not give instructional equipment to parochial institutions if it is a type that likely could be used for religious instruction.27 In Mitchell, six justices rejected this limitation, though they did not agree on an alternative test.

One final area in which the Rehnquist Court’s conservatism has been manifest is the death penalty. The Court has strongly supported the government in death penalty cases. This was clearly signaled in an early Rehnquist Court decision. In McCleskey v. Kemp, the Supreme Court held that proof of discriminatory impact in the administration of the death penalty was insufficient to show an equal protection violation.28 Statistics powerfully demonstrated racial inequality in the imposition of capital punishment. A study conducted by Professor David Baldus found that the death penalty was imposed in 22 percent of the cases involving black defendants and white victims; in 8 percent of the cases involving white defendants and white victims; in 3 percent of the cases involving white defendants and black victims; and in 1 percent of the cases involving black defendants and black victims.29 Baldus found that “prosecutors sought the death penalty in 70 percent of the cases involving black defendants and white victims;15 percent of the cases involving black defendants and black victims; and 19 percent of the cases involving white defendants and black victims.”30 After adjusting for many other variables, Baldus concluded that “defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks.”31

The Supreme Court, however, said that for the defendant to demonstrate an equal protection violation, he “must prove that the decision makers in his case acted with discriminatory purpose.”32 Because the defendant could not prove that the prosecutor or jury in his case was biased, no equal protection violation existed. Moreover, the Court said that to challenge the law authorizing capital punishment, the defendant “would have to prove that the Georgia Legislature enacted or maintained the death penalty statue because of an anticipated racially discriminatory effect.”33 McCleskey has thus foreclosed constitutional challenges to the death penalty.

In some areas, though, the Rehnquist Court has been unable to muster a majority to move in a more conservative direction, even though the Chief Justice favored this move. The Court, for example, has not overruled Roe v. Wade, but instead, in Planned Parenthood v. Casey,34 reaffirmed that a woman’s right to abortion is protected by the Constitution. In Lee v. Weisman35 and Santa Fe Independent School District v. Doe,36 the Court reaffirmed the ban on prayers in public schools. Chief Justice Rehnquist dissented in all these cases.

 

A Conservative Court

These themes, of course, cover only some of the decisions from the fifteen years of the Rehnquist era. Yet they show key ways in which the Supreme Court’s direction has been changed. The Rehnquist Court undoubtedly will be remembered for moving constitutional law in a conservative direction, sometimes gradually, other times dramatically.

 

Notes

1. 514 U.S. 549 (1995).

2. 120 S.Ct. 1740 (2000).

3. Id. at 1754.

4. 16 U.S.C. at 1538(a)(1).

5. 18 U.S.C. at 922(g)(8).

6. 521 U.S. 507 (1997)

7. 119 S.Ct. 2240 (1999).

8. 527 U.S. 44 (1996).

9. 527 U.S. 627 (1999).

10. 528 U.S. 62 (2000).

11. 121 S.Ct. 955 (2001).

12. 119 S.Ct. at 2266.

13. 247 U.S. 251 (1918).

14. Laurence Tribe, American Constitutional Law 378 (2d ed. 1987).

15. 426 U.S. 833 (1976).

16. 469 U.S. 528 (1985).

17. 505 U.S. 144 (1992).

18. 42 U.S.C. at 2021e(d)(2)(C)(I).

19. 505 U.S. at 188.

20. 521 U.S. 898 (1997).

21. 18 U.S.C. at 922.

22. 488 U.S. 469 (1989).

23. 515 U.S. 200 (1995).

24. Shaw v. Reno, 505 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995); Shaw v. Hunt, 517 U.S. 899 (1996); and Bush v. Vera, 517 U.S. 952 (1996).

25. 521 U.S. 203 (1997).

26. 120 S.Ct. 2530 (2000).

27. See, e.g., Wolman v. Walter, 433 U.S. 229 (1997); Meek v. Pittinger, 421 U.S. 349 (1975).

28. 481 U.S. 279 (1987).

29. Id. at 286.

30. Id. at 287.

31. Id. at 287.

32. Id. at 292 (emphasis in original).

33. Id. at 298.

34. 505 U.S. 833 (1992).

35. 505 U.S. 577 (1992).

36. 120 S.Ct. 2266 (2000).

 

Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science, University of Southern California.