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Greenhouse on the Rehnquist Court:
In today's New York Times, Linda Greenhouse points out that while many expected the last 11 years of the Rehnquist Court to produce conservative revolutions, in the end the state of the law ended up moving more to the left than to the right:
the period was dynamic, even tumultuous, but by the time it was over, the [conservative] revolutions had fizzled or run their course, and the fervor appeared to have died. To the extent that there was basic change, it was to the left rather than the right: a firmer foundation for affirmative action, a constitutional framework for gay rights.
Challenge:
"To the extent that there was basic change, it was to the left rather than the right: a firmer foundation for affirmative action, a constitutional framework for gay rights."

Well, at least until the next justice (or two) comes along. If I'd wager, I'd say affirmative action is on its way out within five years, and while gay rights won't receive a boost, they won't explicitly be rebuffed. Nobody really thinks sodomy laws are a great idea, whether or not one's reading of the Constitution says they're legalling permissable. I think Lawrence, like its cousin Griswold, is probably here to stay. Also, I see a tilt toward an originalist perspective on establishment issues as well.
7.10.2005 12:52pm
Buck Turgidson (mail):
I think, this is a common exaggeration. Those on the Left always think that judicial and legislative agenda is moving to the Right and those on the Right think that they are moving to the Left. Never mind that such a single-minded generalization is stupid in any case--unless one has a one-party autocratic society (but not necessarily totalitarian), there will always be some issues moving to the Left and some to the Right. For the general sense, you can only count on personal opinions and these, as I said above, are indicative of personal affiliations a lot more than of actual events.

I am sure, you can find it in your heart to admit that there are many items on which SCOTUS moved to the Right over the past 11 years. Surely there are some going the other way as well. If you want to make a political statement to energize the base, than the generalization makes sense. Otherwise, please refrain from such wasteful exercises--especially for a libertarian bunch that ends up to the right of Atilla the Hun on some issues and to the left of Al Sharpton on others.
7.10.2005 1:14pm
A Blogger:
Buck,

Do you really think Linda Greenhouse is "on the Right"?
7.10.2005 2:00pm
Buck Turgidson (mail):
Do you really think Linda Greenhouse is "on the Right"?

I don't have to think about it. She has consistently represented SCOTUS as moving to the Left. Just last week she commented on "Court's Term a Turn Back to the Center". She's certainly not "on the Left". I suspect that he latest trend underlines her well-nurtured biases that she's been very careful not to include in her reporting overtly.

Do you really think that everyone who writes for the NYT is a liberal? Or is this just a part of the broader liberal conspiracy to dominate the media? (If you really believe that, I have a nice bridge to sell you...)
7.10.2005 2:44pm
A Blogger:
Buck,

You're joking, right?

If not, let me point out that your argument is completely circular. Your thesis is that only conservatives think the court is moving to the left. But when it comes to Greenhouse, you say you don't need to "think" about whether she is conservative or liberal; she MUST be a conservative, because she is saying that the court is moving to the left. If you have to reinvent Linda Greenshouse as a closet conservative to make your argument, you might want to look for a new thesis.
7.10.2005 3:07pm
f8:
Greenhouse's analysis the common journalistic failure to examine nothing but the "sexy" constitutional law/civil liberties/substantive cases. When you look at the Rehnquist Court's record on the ability of plaintiffs' to enforce their rights in court -- by avoiding mandatory arbitration, by suing state governments, by suing for punitive damages, etc. etc. -- you will find that the Rehnquist Court has moved far, far in the direction that Rehnquist had always wanted when writing his lonely dissents in the Burger Court era. Procedure may not be sexy - but it's what really matters in the garden variety cases.
7.10.2005 3:26pm
frankcross (mail):
There's ample empirical evidence that the USSC during the Rehnquist era has rendered more conservative decisions than liberal ones. f8 explains the perception, I think, and why conservatives view the Court as liberal today. As for the relative importance of these decisions, that's a judgment call. But I've conducted research showing that the standing decisions have had an enormous "conservatizing" effect on the law, which supports his claim.

While I think Linda Greenhouse strives for fairness, I believe that she is more "on the left" than "on the right." But I think she is caught up in the sexy decisions, rather than the bulk of the Court's output. And I'm not sure her conclusion about affirmative action really reflects the body of recent decisions.
7.10.2005 5:18pm
Kevin L. Connors (mail) (www):
It seems to me as though the Rehnquist Court has been one of stasis, more than anything else.
7.10.2005 7:56pm
Chrisdoc (mail):
I think that this is consistent with the recent - and very peculiar - nostalgia that liberals have suddenly had for the Rehnquist Court, presumably because they assume that Bush will appoint people that are even more conservative than Rehnquist. See, e.g., this article from Slate. In essence, people are having nightmares - probably irrational - about a recomposed Court and waking up finding themselves thinking, "Maybe those old guys weren't so bad after all."
7.10.2005 8:12pm
A. Non:
I'm unaware of any rash of liberal nostalgia for the Rehnquist court. Could you point to an example? Thanks.
7.10.2005 9:29pm
Steve:
The law of habeas relief has taken a rather sharp turn to the Right during the Rehnquist Court.

In addition, while Lopez and Morrison don't exactly constitute a wholesale rewriting of Commerce Clause jurisprudence, they definitely impose federalist limits that were never found during the past several decades.

This is just cherry-picking, of course. The point that it's silly to try and deduce an overall "leftward" or "rightward" trend is quite valid, given the number and complexity of issues that come before the Court.
7.10.2005 10:33pm
Justice Fuller:
Steve,

You're right that the law of habeas has taken a turn to the Right, but how much of that in the last 11 years was the work of Congress instead of the Supreme Court?
7.10.2005 10:45pm
anothereugene:
Is conservative rancor parallel to liberal nostalgia? If so, see Krauthammer's recent column about Sandra Day's sudden lack of a judicial philosophy.

In any case, I think the liberal beatification of someone who has always and forever been known as a "moderate conservative" is fairly conclusive evidence.
7.11.2005 9:45am
Chrisdoc (mail):
A. Non - I'll just repoint you to the example I put in my original comment (just after "see, e.g.").
7.11.2005 2:07pm