Warren and Rehnquist Courts

[Douglas Laycock]

        The individual rights cases mostly seem to me to operate at the margin and
have little impact on governance.  Abortion is the great exception, because
the stakes are so huge for both sides.  That is an individual rights
controversy that goes to the heart of decisions about governance.

        The Warren Court's great interferences with how we govern ourselves were
racial desegregation and reapportionment.  These were more intrusive than
anything the Rehnquist Court has done, but they righted great wrongs and
soon gained majority support (even in the South), so they no longer seem
examples of judges misbehaving.  The busing cases were structural, a big
interference with governance, and a failure, but they were the product of
the Burger Court.

        The criminal procedure cases cured the most egregious abuses without
affecting the rate of conviction.  They failed in their structural
asirations; they did not solve the basic problem of unreliable convictions
resulting from too few resources invested in fact finding.

        The great structural decisions of the Rehnquist Court are campaign
finance, affirmative action, and federalism.  Campaign finance and
affirmative action have a clear individual rights base, but are heavily
structural in their consequences.  They interfere with solutions to
practical problems.  People obviously disagree about whether the Court is
right great wrongs, or even little wrongs.

        The federalism cases are structural all the way, and they have already
changed the way the federal government works.  At the very least, vast
amounts of effort are expended in the other two branches trying to figure
out the limits of these cases and how to work within them or around them.
Boerne, Morrison, and College Prepaid largely remove a structural element
of the Civil War settlement -- Congressional power to enforce the
Constitution is now a derivative of judicial power to enforce the
Constitution.  Printz and the commerce clause cases have not yet gone so
far, although there is no stopping point in sight for either.

        The campaign finance decisions have a huge constitutency in the big donors
and in the Republican Party.  But affirmative action and federalism seem to
me to be cases of capture by an intellectual fringe.  The Court's
conservatives have been consistently to the right of Congressional and
Presidential Republicans on these two issues (with the possible exception
of 994-96).

        The right wing did not organize around affirmative action until the
success of Jesse Helms's ads in what was it -- 1990?  The Court was just
ahead of that curve, starting in the late 80s.  The Reagan Administration
had not touched affirmative action.  The issue was kept alive by a small
set of intellectuals, although at least in the abstract, it plainly has
voter appeal now.  The conservative business establishment has long found
it a valuable safe harbor and essential to good business.  So here we have
the Court speaking for a small group of intellectuals but picking up
populist support.

        There is no principled commitment to federalism in either political party;
they both want to do everything at whichever level they can win at.  Most
of the popular resentment of federal regulation is resentment of regulation
simpliciter.  And the Court's federalism decisions will not do anything
about the general level of regulation that people resent unless they go
vastly further than anything we have seen so far.  There is a constituency
for deregulation, but there is no constituency for sorting out state crimes
from federal crimes.  If there were a constituency for striking down
feel-good legislation, it wouldn't be feel-good legislation in the first
place.




Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
        512-232-1341 (phone)
        512-471-6988 (fax)
        dlaycock at mail.law.utexas.edu