Warren and Rehnquist Courts

[Blumstein, James]

I think Doug Laycock's memory of history is not quite accurate when he
states that the Reagan Administration did not touch affirmative action
issues... The executive order (11,246) was not changed, but there was an
awful lot of debate about doing that and rumor has it that George Schulz,
under whose watch as Secretary of Labor in the Nixon Administration the
Philadelphia Plan was adopted, stepped in to save the eo (while he was in
the Reagan cabinet but as secretary of state).  Further, there was
considerable blood letting regarding reconstituting the Civil Rights
Commission and the shift in leadership there with Clarence Pendleton and
Morris Abram in control.  Mary Frances Berry, the current chair, was a
vigorous and vocal dissenter from actions of the Commission and a critic of
Pendleton, Abram, and LInda Chavez (the executive director).  As a matter of
litigation, the Civil Rights Division of USDOJ was a battleground,
particularly in voting rights but also in other areas.  The refusal to
confirm Brad Reynolds, head of Civil Rights, to Associate Attorney General,
was a precursor of the Bork Supreme Court confirmation imbroglio.  And the
1982 amendment of Section 2 of the Voting Rights Act  was a hotly contested
battle.  The issue of the affirmative use of race underlay that political
free-for-all, although proponents of revised Section 2 did deny that that
was the goal that they were pursuing because they could not command a Senate
majority for that agenda.  There are many other examples from the Reagan and
Bush years (e.g., the veto of the 1990 Civil Rights bill ultimately enacted
in revised form in 1991).  All in all, this was a very lively issue in the
1980s and did not stem from a single campaign by a single senator.  That is
just not historically accurate... Memories fade, I guess.... Jim Blumstein

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Tuesday, August 01, 2000 1:35 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Warren and Rehnquist Courts



        I usually agree with Doug on a lot of things, but I confess I'm a
bit puzzled by his characterization of the Court's race preferences cases as
"cases of capture by an intellectual fringe."  Survey after survey -- and
not just ones conduct by anti-preference partisans -- shows broad public
opposition to race preferences.  Even if one argues that all those surveys
somehow overstate the public's views, there's at the very least a solid
minority who firmly oppose preferences.  Prop. 209 in California passed by
54-46 even though it went *further* than where the Court's jurisprudence
seems to be going, in enacting a per se ban on race preferences in
government employment, education, and contracting.  In Washington state,
hardly a hotbed of the conservative frange, a similar constitutional
amendment passed by an even larger majority (about 59-41, if I recall).

        True, Congress, Republican Presidents, and the business
establishment have generally been to the left of the Court's views.  But so
what?  As Doug himself points out, the Court's decisions have "picked up
populist support" -- how then are they in any way "fringe" decisions (and
where does "capture" fit into this)?

        Now perhaps "intellectual fringe" is meant to refer to "the fringe
of the intellectual establishment," even if that represents a mainstream
position or at least a large minority position among the public at large.
But if that's so, why exactly does it matter?  Even if it is proper to
criticize the Court on the grounds that its views are out of step with the
public mainstream, does it really matter that its views are out of step with
the mainstream of the intelligentsia?  (Of course, various intellectual
establishments' views are often skewed in a wide variety of ways -- the
legal academy, as Jim Lindgren's data shows, is considerably to the left of
the public at large; members of the political establishment tends to avoid
certain issues for understandable reasons of their political self-interest;
the business establishment favors those policies that cause less trouble and
dislocation for it.)

        Returning to the original post to which I reacted:  The claim there
was that the Rehnquist Court's agenda is that of a "fringe political
minority (more or less the Gingrich-Delay-Cheney wing of the Republican
party)."  As to race preferences, I think that claim is mistaken, for all
the reasons I mention above -- unless 54% of Californians and 59% of
Washington State residents are likewise members of a "fringe political
minority."

        I also think it's mistaken as to other matters, including for
instance campaign speech restrictions, where the Court's current position is
-- as Nixon v. Shrink Missouri PAC shows -- actually very close to Buckley
v. Valeo, an opinion as to which the remaining members of the Warren Court
split 2-1-1 (Brennan/Stewart - Marshall - White); but on this I have no
quarrel with Doug, who did not include campaign speech restrictions as part
of the Court's "fringe" decisions.


Doug Laycock writes:

                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.

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