Comparing Warren v. Rehnquist Court Activism

[Howard Gillman]

Thanks to Earl, David, and Eugene for the additional push.

For Earl:  I'm sorry if I left the impression that I thought that the Court
should be an instrumental of leftist politics when liberals are in control
but should "take a neutral stance when conservatives are in the
majority."  It was not my intent to make that point.  I just didn't think
that was as self-evident as Eugene suggested that the Warren Court was much
more activist than this Court.  I think it's inevitable that conservative
justices will use their power to promote conservative ends; but we
shouldn't be mislead by the long-standing mantra of conservative jurists
that they are opposed to something called "judicial activism."  Just
because they talk the language of "restraint" doesn't mean that these
conservatives are, in fact, more "restrained" than the mythic Warren Court
(whose reputation for so-called activism has been overblown by liberals
interested in constructing a romantic conception of that Court and by
conservatives interested in constructing a villain).  To my mind this Court
is significantly more activist than the Warren Court on almost any
definition of activism (and it's a concept that is not well defined -- it's
use has always been more political/rhetorical than analytic).

As for David's comment:  I agree that the Reagan-Gingrich eras has created
the political context within which this jurisprudence was able to
blossom.  And I suppose that if one phrased the polling question properly
one could get "the people" to express skepticism about federal power.  But
whatever diffuse opinions you could get from people I don't think they
translate into actual opposition to the kinds of laws the Court has been
striking down.  David suggests that the mood of the country is where Scalia
and Thomas are on the scope of federal power, and that there are just some
public choice barriers to getting those sentiments expressed
politically.  It seems to me that this is precisely correct in explaining a
good number of Warren Court opinions (Brown, Baker, Griswold perhaps), but
I'm skeptical whether the same can be said for Gun Free School Zones or
RFRA or background checks for gun buyers or the application of civil rights
laws to public employees or whatever else these conservatives will go after
(the EPA?  the civil rights acts?).  Opposition to these laws (many of
which were supported by many Republicans in Congress) comes mostly from the
Delay-Cheney wing of the party.

As for Eugene's comments:  Eugene thinks that the Warren Court's Bill of
Rights decisions represented more serious constraints on federal power than
the decisions of the current conservatives.  Perhaps, although my
impression is that the Warren Court's decisions along these lines were
extremely modest and hardly had any effect on governing.  (We might have to
go case by case to be systematic about this; no space for that in this
note, but I'm happy to pursue it.)  As for the claim that the Rehnquist
Court's individual rights decisions are narrower, I don't know; the current
Court's approach to affirmative action, racial gerrymandering, money as
speech, associational rights, strike me as imposing broader limits on
issues that matter to more people than what the Warren Court did.  And
we'll have to see whether Eugene is right that we've seen the worst when it
comes to new constraints arising out of the commerce clause and federalism.

As for the countermajoritarian issue -- Eugene refers to school prayer and
Miranda, but each of these is still supported by this Court.  Eugene is
correct that this doesn't mean that it wasn't a significant constraint back
then (although I don't think Miranda was a significant constraint given the
professionalization of law enforcement in the 60s), but it does demonstrate
that on this measure the current Court is not less constraining.

One final way to put the point:  the Warren Court's model of judicial
review was premised on a belief in general government powers bounded by
discrete rights (and most of the rights protected by that Court either had
broad support or promoted democratic politics); the Rehnquist Court's model
is premised on a belief in limited government powers, even with respect to
policies that lots of people support.  And it seems to me that this
represents a much more severe set of constraints on power than were ever
imagined by the Warren justices.

Sorry for the length.  Peace!

HG