Warren and Rehnquist Courts

[Howard Gillman]

I fear that my "fringe" language has hit a sore spot and so allow me to
withdraw it and clarify.  First, though, I should say that I agree with
Eugene that the attitude of Court conservatives on racial preferences is
not a fringe political position (although I'm more inclined to agree with
Douglas Laycock's description of "the Court speaking for a small group of
intellectuals but picking up populist support").

When I used the word I had in mind the Court's commerce clause and
federalism jurisprudence, which strikes me as (a) quite reactionary (even
shocking, if we remember our initial reactions), (b) reflective of the
agenda of a powerful, minority, ideological wing of the Republican party
(the wing that has aligned itself as much against the party's traditional
country club establishment as against the Democrats -- and a wing that been
frustrated in its inability to accomplish as much of this agenda as it
would like, despite the 94 congressional elections), and (c) designed (I
think) to impose fairly serious burdens on national power (I'm thinking
specifically of Gingrich's expressed hope that he could rollback the
federal government to a pre-New Deal role, and I think that this
jurisprudence reflects a perhaps modified version of that agenda).  I think
Eugene might agree that it is still to be seen whether these decisions
maintain their currently "modest" character.

My buddy Mark Graber has done some of the best work ever on the
empirical-political analysis of the so-called countermajoritarian
difficulty (although some of this work ends up in prestigious political
science journals that law profs don't read -- note "The Non-Majoritarian
Difficulty:  Legislative Deference to the Judiciary," Studies in American
Political Development 7 [1993]:35-73).  He and I do not disagree on the
general point that the Supreme Court is political constrained in a way that
prevents it from aligning itself with fringe groups against an assertive
majority for any length of time.  I also agree that the collapse of a
governing consensus in favor of the New Deal regime (and the absence of a
consensus around a post-New Deal model) gives the Court conservaties the
breathing room they need to start this experiment in reactionary
structuralism.

But he has also pointed out that, sometimes, minority-ideological wings of
political parties end up with decent representation on the Supremes, and
this gives the Court opportunities to challenge dominant coalitions for
significant periods of time.  It seems to me that this analysis applies to
the current Court in a way that is not true of the Warren Court.  And if
there is any doubt about the ability of the Court to become an institution
that represents a minority-ideological position against the political
system, just wait to see what happens of GW is elected (when the
Gingrich-Delay Republicans on the Court--who are currently being kept
invisible at the Republican Convention so that GW has a chance to
win--could easily gain the critical edge over the country club Republicans).

Peace.  H