Comparing Warren v. Rehnquist Court Activism

[Volokh, Eugene]

        Howard raises a very interesting and substantive point, but I'm not
sure I quite agree, on two scores.

        First, it seems to me a bit odd to assert that the Rehnquist Court's
decisions "impose much more severe limits on governing" than did the Warren
Court's.  Say what one will about the correctness of New York v. US, Printz,
Lopez, Boerne, Morrison, or the state sovereign immunity cases, but I'm a
bit skeptical that they in fact impose "severe limits on governing."
Between the still generous scope of the Commerce Clause power, plus the
Spending Clause power and a variety of other tools, Congress can still, if
it wants to, do a very great deal despite these decisions.

        Even if one throws in the Rehnquist Court's individual rights
decisions, such as its willingness to strike down some (though not all)
campaign speech regulations, its willingness to strike down many (though not
all) race preferences, its willingness to strike down many (though not all)
sex classifications, and its willingness to strike down many (though not
all) restrictions on commercial advertising speech, sexually themed speech,
and the like, I find it hard to see how its conduct "impose[s] much more
severe limits" on governing than did the Warren Court's.  Sherbert v.
Verner, Baker v. Carr, Mapp v. Ohio, Miranda v. Arizona, NYT v. Sullivan,
and the many other similar decisions of the Warren Court surely imposed
limits on governing that were at least as severe, and probably considerably
more severe, than those imposed by the Rehnquist Court.

        Second, I wonder whether calling the the Rehnquist Court's positions
"the agenda of a fringe political minority" is quite right.  I'm not sure
that the Court's positions are indeed endorsed only by "more or less the
Gingrich-Delay-Cheney wing of the Republican party"; my sense is that many
of its views, even on the federalism questions, would be shared by many
other Republicans and perhaps even quite a few Democrats (though one would
be handicapped in this analysis by the fact that most laypeople actually
don't have much by way of views on sec. 5 of the 14th Am).  But even if the
Court's views indeed mirror only the Gingrich-Delay-Cheney wing, it's hard
to describe that wing as "a fringe political minority."  It is simply the
conservative part, probably coupled with the libertarian part, of the
Republican party -- no more a "fringe" than is the liberal part of the
Democratic party.

        None of this, of course, says anything about the merits of the
Warren Court's or Rehnquist Court's decisions.  One could certainly argue
that the Rehnquist Court's decisions are an unsound accretion of power,
because they represent incorrect constitutional principles, while the Warren
Court's decisions were a sound accretion of power, because they represent
the true understanding of the Constitution.  One could likewise argue the
opposite.  My points were focused only on Howard's descriptive claims about
the comparative restraint that the decisions impose on the political
branches, and about the portion of the political spectrum to which the
decisions appeal.

Howard Gillman writes:

> This is prompted by Eugene's passing comment comparing the recent Court's
> efforts to "the Warren Court's far greater accretion of power."
>
> I wonder if we all agree.  On most issues of government regulation the
> Warren Court was quite accommodating of the political branches (some might
> say too accommodating, if one is sympathetic to the Rehnquist Court's
> federalism jurisprudence).  In many areas in which the Court developed a
> reputation for "activism" the justices seemed to be acting fairly
> cautiously, following national trends in public opinion and the urgings of
> mainstream national officeholders (note Klarman on "Rethinking the Civil
> Rights and Civil Liberties Revolutions," 82 Va. L. Rev. 1 [1996]).  Some
> of
> that Court's putative activism also faciliated more inclusive democratic
> politics (Reynolds/Baker).  The few possibly countermajoritarian rulings
> of
> that Court have mostly been sustained (school prayer, criminal procedure).
>
> Would it be misleading to distinguish the Rehnquist Court's by saying that
> its decision making represents an effort to constitutionalize the agenda
> of
> a fringe political minority (more or less the Gingrich-Delay-Cheney wing
> of
> the Republican party) and that its decisions impose much more severe
> limits
> on governing?
>
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