Abstract: Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.1 I raise three questions about his analysis, two of which take off from phrasing of his title. First, calling present Rehnquist is obviously easy, and I do it myself in subtitle of my forthcoming book.2 Professor Lund has of course taken his charge from conveners of this Symposium, and I do not mean to criticize him for doing so. Still, it may be worth pointing out that convening a symposium that encourages people to think in terms of the Rehnquist Court might not be most intellectually productive approach to understanding contemporary Supreme Court. Describing periods by Justices is entirely conventional. The Chief Justice synthesis is as pervasive in constitutional law as presidential synthesis is in studies of presidency.3 Yet, I think, Chief Justice synthesis is often inaccurate. It is reasonably clear now that there is something askew in describing Burger as fundamentally distinct from Warren Court. From a time shortly after William Brennan arrived at Court, it was more a Brennan than a Warren Court, and throughout Warren Burger's tenure was certainly more a Brennan than a Burger Court. What of present Court? I think there are several candidates for alternative labels. Taking up a widely noted point that emerges as well in Professor Lund's discussion, we might refer to present as O'Connor Court, reflecting Justice Sandra Day O'Connor's position as median Justice, person whose position on issues is more likely to determine outcome than anyone else's. In addition, Professor Lund's presentation provocatively suggests a great deal of continuity between so-called Burger and Rehnquist Court. One can read his argument to be that Burger Court-or, pretty clearly in this context, Brennan Court-adopted approaches to nation's civil rights laws that a truly conservative would have rejected, and that Rehnquist did not do an entirely satisfactory job of cleaning up mess that it inherited.4 Labeling a with a Justice's name requires that Justice actually be on Court, of course, and Justice Brennan himself departed long ago. There is, though, another candidate. Justice John Paul Stevens served on Burger (Brennan) and on present Court. Thinking of present as Stevens might capture some of continuity suggested in Professor Lund's article. That might seem odd at first because Justice John Paul Stevens is conventionally described as a member of Court's liberal wing, and because is commonly described as a conservative Court.5 Those descriptions are largely accurate, although as Professor Lund and I both suggest not completely accurate. Why might it make sense to identify with a member of its minority faction? The reason is this: The Court's conservatives have been notably fractured, for reasons I discuss later in this comment.6 Put another way, no Justice on conservative side has been able to provide leadership that would hold conservatives together. It has gone largely unremarked, though, that Court's liberals have presented a far more united front.7 But there is little reason to think that this liberal unity is a natural phenomenon.8 Rather, it is an accomplishment, facilitated by someone's leadership. We will not know for sure until historians are able to examine Justices' papers, but I think there is good reason to conclude, even now, that Justice Stevens has provided that leadership notwithstanding his sometimes idiosyncratic positions on important matters. Second, I wonder about describing present as pragmatic. The term seems to me to have become an all-purpose and almost meaningless label for quite traditional judicial decisions. …
Publication Year: 2004
Publication Date: 2004-10-01
Language: en
Type: article
Access and Citation
Cited By Count: 2
AI Researcher Chatbot
Get quick answers to your questions about the article from our AI researcher chatbot