Editor’s note: This piece was originally headlined, “The New Chief, the New Justice, and the New Court,” with the subhead: “Liberals are right to worry.” It ran as the cover story of our October 1986 issue.
Say this, at least, for Chief Justice Burger: Nothing so became his office as the leaving of it. By resigning when he did and allowing President Reagan to appoint the successors that he did, Burger has already done more to revive the reputation of the Supreme Court and more to restore the health of the Constitution than anything he can do hereafter as chief cheerleader for the Constitution’s Bicentennial.
The Court over which Chief Justice Burger presided these past seventeen years became far and away the most divided Supreme Court in American history, if one judges by the number of 5-4 or 6-3 decisions, the number of distrustful concurring opinions, or by the number of shrill and indignant dissents each year. The Burger Court also leaves behind more muddled constitutional doctrine than any Supreme Court in our history. The new appointments are not going to cure the Court’s divisions — not at least while the Court’s irascible octogenarians cling to their posts. But the new appointments should have an immediate and highly salutary effect on the muddle.
Senator Edward Kennedy, one of William Rehnquist’s severest critics, was animated by an essentially correct perception — even if drawn to a wrongheaded conclusion — when he denounced Rehnquist as “too extreme” to be Chief Justice. Rehnquist is not just a little more sympathetic to conservative public policy views, he really is different from most of his colleagues in his outlook and assumptions as a judge. He is far more of a threat to the political vision cherished by congressional liberals than Chief Justice Burger ever was or than President Reagan’s first nominee, Sandra Day O’Connor, has turned out to be.
Rehnquist has firmly and persistently resisted the notion that the Supreme Court has a residual authority to redress all the unfairness in American public life. This notion, first popularized by the Warren Court, has beguiled virtually all of Rehnquist’s colleagues to a greater or lesser degree. And it is a beguiling notion, because fairness seems such an indisputably worthy goal. The problem with “fairness” as an overriding goal is well illustrated by the current political plight of the Democratic party: people too preoccupied with fairness have a hard time saying no and they often end up, pushed and pulled by conflicting entreaties, as the active instruments of new kinds of unfairness. Worse, they often become so taken with their own good intentions that they fail even to notice the new harms they are inflicting. For courts, the preoccupation with fairness involves a more immediate problem: It undermines the judge’s obligation to established law and leaves everyone else in confusion about what the law is supposed to be.
This problem has not, of course, prevented the Supreme Court from serving as a very convenient partner for liberal politicians. In recent decades, the Court has acted as the bold point-man for liberal policies — like busing for integration or abortion on demand — which liberals were afraid to advocate directly on the merits (but could afterwards support as “the law of the land”). And the Court has served as a compliant cleanup squad, compensating for liberal legislative weakness or oversight by reinterpreting statutes to meet the needs of changing fashion (as in Justice Brennan’s convenient finding that the Civil Rights Act of 1964 does not prohibit racial favoritism toward minorities because a law “triggered by a Nation’s concern over centuries of racial injustice” could not possibly have meant what it said).
But in the end, it is true, the Burger Court was not determinedly liberal in its policies. It was not really determinedly anything. The Burger Court endorsed busing for school integration but then stymied the integration advocates by refusing to pursue busing into the suburbs, where it might have made more sense. The Court struck down a whole series of state residency requirements for “burdening” the right to travel but drew the line at requiring government funding of the new right to abortion. The Court demanded that laws provide equal treatment for citizens and noncitizens, except when this didn’t seem proper to the Court — or when it didn’t seem proper to Congress. Quick to launch new doctrinal programs, the Court was then often reluctant to pay the bills. Its zigzagging course often provoked stinging dissents from the more liberal justices, but the dissenters frequently derided the Court’s baroque doctrinal camouflage only to urge even more evasive alternatives — as when Justice Marshall, in several passionate dissents, insisted that the Court was wrong to adopt a “two- and-a-half tier” system of scrutiny for “equal protection” claims under the Fourteenth Amendment and should instead embrace a “sliding scale” incorporating a “spectrum of standards.”
What has distinguished Justice Rehnquist above all has been his willingness to draw clear lines and stick with them. Or to put it more directly, his willingness to say no. And it is this temper, more than his stand on any particular issue, that most outrages Rehnquist’s liberal critics. The particular constitutional interpretations he advocates would rarely raise insuperable barriers to particular liberal policy measures. But they undermine the moralism on which successive extensions of federal power have thrived.
Despite what some of his critics charge, Rehnquist’s aversion to exotic constitutional claims does not make him a doctrinaire “majoritarian.” Rehnquist has been perfectly willing to overturn legislative judgments when they violate some clear constitutional prohibition: he has voted (over the screaming dissents of Justices Marshall and Brennan), for example, to overturn several state laws violating the constitutional prohibition against “impairing the obligation of contracts.” But the larger point is that, as Rehnquist’s critics emphasize, the Constitution indeed is not a majoritarian document. It is just because the Constitution does not allow the majority to get its way very directly that appeals to the Court to save “minorities” from the oppressions of the majority usually have a rather hollow ring. Where laws must get through two legislative chambers and survive an executive veto power, there is bound to be an ongoing scramble for political allies and legislative coalition partners, and “discrete and insular minorities” — ostensibly in need of special judicial solicitude — often have the most political leverage because they have the most political cohesion.
More than any of his colleagues, Rehnquist is comfortable with the notion that the Constitution cannot offer solutions to every conflict and satisfaction to every claim, and this makes it easier for him to formulate and to stick with general rules. Where every one of his colleagues has by now expressed concern about the dangers of benign quota schemes and struggled to articulate some limitations on affirmative action, Rehnquist has been the most consistent champion of the simplest solution — a blanket prohibition on racial favoritism of any kind. Rather than a moral majoritarian, he might be described as the judicial equivalent of a fiscal conservative, anxious to avoid overdrawing on the Constitution and vigilant against exaggerated expectations for the Court. In this sense, Rehnquist might indeed be described as “insensitive to minorities.” He has resisted the sort of special claims on the Constitution that drag the law — and the Court — into endless refined wrangling to accommodate this or that new claim and then to make adjustments for the inevitable counterclaims.
Rehnquist’s well-argued dissents from the Court’s most controversial activist ventures are well known. But he has often been equally pungent and clear-headed in knocking down less notorious judicial ventures (and has often carried the Court along with him in these assaults). In the mid-1970s, for example, the Court toyed with the doctrine that restrictions embodying “irrebuttable presumptions” should not be imposed without “individualized hearings.” Thus it held in one case that a school district could not require pregnant teachers to withdraw after the fifth month of pregnancy without allowing individual teachers an opportunity to show why the rationale for the law would not hold in their own particular cases. Rehnquist’s dissent was devastating:
Hundreds of years ago … controversies were determined on an individualized basis without benefit of any general law. Most students of government consider the shift … to a relatively uniform body of rules … to have been a significant step forward in the achievement of a civilized political society. It seems to me a little late in the day for this court to weigh in against this consensus.
In the next case on the subject, Justice Rehnquist wrote for a new majority now prepared to wash its hands of “irrebuttable presumption” pleas.
If this outlook has often made Rehnquist a vigorous dissenter, it has in fact made him in other ways a more accommodating colleague. Of all the justices, Rehnquist least often resorts to separate concurring opinions — those weasel statements allowing justices to endorse a decision while distancing themselves from its logic and preserving their future options. Rehnquist’s view of law does not leave much concern for fastidious distinctions or for preserving future options.
As Chief Justice, it is true, Rehnquist will not be able to compel any other justice to change his vote. Still, a forceful Chief Justice can be a moral influence and an institutional conscience for the Court, whether or not he gets his way on every particular issue. And there are some signs that many members of the current Court are growing tired of petty squabbles over doctrinal adjustments and may be increasingly receptive to the kind of intellectual and moral discipline Rehnquist has offered in his own opinions. If so, the Georgia sodomy case decided this past spring may be a herald of things to come. The Court did not take the easy step of announcing a constitutional right to engage in homosexual acts in the privacy of the home, while reserving its options on the degree of constitutional protection available for homosexual bathhouses or gay bars. It refused to make even a down payment on this venture but rather affirmed, in an uncompromising and unapologetic way, that the Constitution had nothing to say about the matter.
It is possible that Judge Antonin Scalia was given an easier time in his confirmation proceedings because Senate liberals did not have the nerve to mount another ad hominem assault on a Reagan appointee so soon after the attacks on Justice Rehnquist. Or it is possible that the relatively brief service of Judge Scalia on the D.C. Court of Appeals did not provide enough opinions on agitated constitutional topics for his critics to take his measure. If they think Scalia will prove more “flexible” or less “extreme” than Rehnquist, however, they are most likely deceiving themselves.
I had the chance to get to know Nino Scalia in the last years of the Carter Administration, when I worked for Regulation, a journal published by the American Enterprise Institute for which Scalia served as a part-time editor. Scalia was then a law professor at the University of Chicago, but he had none of the typical law professor’s disdain for mere politics. He was gregarious and amusing, and he clearly relished a good fight. At a time when AEI was trying to cultivate a respectable, bipartisan image, Scalia was described — with a mixture of envy and awe — as “a real partisan.” He liked to quote the dictum of his former boss, Attorney General William Saxbe, who observed that the problem with Republicans was that “the Democrats want to govern the country and the Republicans simply don’t want them to.” An advocate of free market policies but by no means a libertarian, Scalia wanted to see his party take responsibility for governing.
Scalia was exasperated by the use of high-sounding legalistic flimflam to intimidate people from advancing respectable political agendas. And he did not go in for exaggerated solemnity about the majesty of “the law” or the heavy burdens of the judge. In 1979, when more than thirty states had passed resolutions calling for a constitutional convention to draft a balanced budget amendment, AEI sponsored a panel discussion on the issue, bringing Scalia together with several law professors who were then far better known. All the others pulled their chins, puffed on their pipes, and harrumphed about the danger that such a convention would “run wild” and propose constitutional amendments on a range of other issues quite unrelated to the balanced budget proposal. Uncowed by all these solemn warnings (and still a cigarette smoker), Scalia cheerily observed that the country might well benefit from a half-dozen constitutional amendments and proceeded to suggest a half-dozen controversial Supreme Court rulings as prime candidates for popular overruling.
Scalia served as Assistant Attorney General for Legal Counsel at the outset of the Ford Administration — which is to say, in the immediate aftermath of the Watergate scandals and the resignation of President Nixon — making him the official legal adviser for the presidency at a time when it had reached a particularly low ebb in public esteem. The experience seems to have strengthened his disdain for the moralistic cant that had emerged as one of the main props of Democratic politics in the 1970s. In his subsequent academic career, Scalia wrote relatively little about fashionable constitutional questions of equality or freedom of expression but concentrated instead on his original field, the gritty arrangements of administrative law. It is a good field for stiffening legal backbone, because the “minorities” pleading for special judicial concern in this area are usually middle-class environmentalists or consumer advocates, hardly abandoned orphans in the political process.
In his academic writings Scalia frequently criticized regulatory statutes that were declarations of good intentions rather than clear formulations of policy. He was also a frequent critic of elaborate procedural requirements in administrative rule-making, which he saw as naive or hypocritical contrivances concealing the irreducibly political nature of administrative policy-making. Most of all, he criticized the expansion of judicial review over regulatory policy-making during the 1970s, when courts began to take up the claims of environmental groups, consumer groups, and others complaining not about regulatory excesses threatening their own property or liberty but about the overall implementation of public policy. By allowing standing — that is, access to the courts — to challengers with no personal rights of their own at stake, the new judicial role has, in Scalia’s view, threatened the separation of powers and the political accountability of the executive. More particularly he has characterized the pattern as an alliance against the executive between activist judges and enterprising factions of Congress — political factions, like the special patrons of the environmental movement, who lacked the strength to get their views enacted into actual statutes but were sufficiently well placed to leave helpful policy cues in committee reports for their allies on the bench.
In 1981 President Reagan appointed Antonin Scalia to the D.C. Court of Appeals, the court most preoccupied with suits against federal administrative agencies and the very court most notable for the kind of judicial activism in administrative law that Professor Scalia had been criticizing in the late 1970s. The opinions he has written since then certainly display clarity and craftsmanship, and it is noteworthy that his fellow judges on that court (many of them targets of his academic critiques in earlier years) all seem to have spoken well of his professional manner when questioned about his Supreme Court nomination by investigators for the American Bar Association. Still, I don’t think Senator Hatch quite captured Scalia’s quality when he praised him during the confirmation proceedings as a “judge’s judge.” Scalia might be better described as an “executive’s judge.”
It is not that he is a slavish supporter of anything done by the executive branch of the government. In 1982, to cite only one example, Scalia wrote an opinion insisting that American property holders in Honduras could pursue a claim against the government for damage done to their property by American military maneuvers there. But he is a judge who sees his role as delineating and enforcing clear limits and then leaving executive officials to make the tough choices they must make within those limits. Thus in a 1984 opinion he chastised his colleagues on the D.C. Court of Appeals for according standing to individual congressmen to challenge executive policies and then holding that the courts could exercise “the ad-hoceryof remedial discretion” to withhold intervention when they deemed such restraint to be in the public interest. Scalia’s dissent, invoking the logic of Chief Justice Marshall, insisted that the court’s role was to enforce personal rights, not to exercise discretion in the public interest:
Any scientific theory which required this kind of adjustment would be pronounced useless and discarded. What does it take, one wonders, to arouse judicial suspicions that a legal theory is wrong?
Scalia’s view of the proper judicial role seems to be very close to the Rehnquist view. Both men envisage a role for courts that is limited but hardly passive and feeble. It requires a good deal of intellectual agility to draw clear and compelling doctrinal lines and then a good deal of moral discipline for judges to stick with these lines. It may not be a heroic role, but it is one with great constitutional dignity. Far better, in the end, an “executive’s judge” — one who enforces the basic ground rules, recognizing that he cannot be one of the players — than a judicial executive who wants to manage political conflicts.
The Rehnquist-Scalia perspective is likely to prove increasingly influential on the Supreme Court and throughout the federal judiciary. Partly it will prove increasingly influential because two of the most able and articulate advocates of that view have now been raised to positions of greater prominence, while a very large number of bright and thoughtful lawyers of similar views have also been appointed to lower court positions in recent years. But I also think this view will exercise increasing influence and discipline because it is, in itself, a view in keeping with the times. The country seems to have wearied of moral hysteria and factional intransigence. We are not so dangerously divided that we need to have our public policy managed from above by benevolent judges. The Rehnquist Court, in embracing this perception, may be launching a new era in constitutional jurisprudence. But in some ways the Court may simply be catching up to the rest of the country.
(In 1986, Jeremy Rabkin was assistant professor of government at Cornell University.)
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