Comparing Warren v. Rehnquist Court Activism

[DAVID E. BERNSTEIN]

Well, Howard, don't polls consistently show that a pluarility of
Americans prefer a smaller federal government with fewer services to a
larger government with more services (even if the tax question is taken
out?)    And don't polls also show large majorities mistrustful of the
federal government (which they weren't in JFK's time?) which would imply
that they are skeptical of granting too much discretionary regulatory
authority to agencies. Arguably, the public wants a smaller government,
but public choice problems prevent it from happening (why should one
interest group give up its goodies if no one else will?)

That doesn't make the Rehnquist Court's jurisprudence right or wrong,
but it does put in perspective whether the Court, assuming it is trying
to limit the federal government in any meaningful way, is really out of
the mainstream.  I certainly haven't seen any public hue and cry so far
except over the possibility that the pro-choice folks may have lost
Kennedy's vote.

David E. Bernstein
Associate Professor
George Mason University
School of Law
3401 N. Fairfax Drive
Arlington, VA 22201
(703) 993-8089
dbernste at wpgate.gmu.edu
<http://members.aol.com/deliotb/home.html>

>>> Howard Gillman <gillman at RCF-FS.USC.EDU> 07/31/00 07:24PM >>>

As for whether the Rehnquist Court represents less mainstream opinion
than
the Warren Court -- Eugene suggests that our current justices reflect
simply the conservative wing of the Republican party, just as the Warren
Court represented the liberal wing of the Democratic party.  But I think
it's wrong to characterize the Warren Court as reflecting the views of
just
one wing of the Democratic party; on most issues the Court's opinions
fell
much more within mainstream opinion than is the case with this Court.
The
Rehnquist Court, by contrast, seems to have picked up an agenda that was
not even on the minds of most Republicans (certainly not those who voted
for Gun Free School Zones, RFRA, background checks on handgun owners,
ADA,
etc.).  I could be reading the politics wrong, but it's easier for me to
see tides of public opinion lending support to the Warren Court's
jurisprudence more than I can see it on the Rehnquist Court.  (But I'm
not
a disinterested observer.)

As for Richard Dougherty's query, it seems to me that Casey and Romer
represent opinions that are much closer to the views of most Americans
than
the alternative views (so they fall into the "Griswold" category of
Warren
Court opinions).  The practical consequences of these decisions is to
prevent regional outliers from passing laws that are inconsistent with
dominant opinion.  That's more or less consistent with what the Warren
Court did sometimes (with its more majoritarian activism), but it is far
different than what we're seeing from the Rehnquist conservatives, I
think.

Best, H