A Branch More Dangerous

“[W]hile unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint.”

-- Furman v. Georgia, 408 U.S. 238, 467 (1972) (Rehnquist, J., dissenting) (citation omitted)

The death of Chief Justice William Rehnquist last week brings to an end an extraordinary era of change at the Supreme Court. Rehnquist leaves a Supreme Court as willing to assert its own power as any since the near-Warren-era Court he joined in 1972. That is no small statement. In 1972, when Rehnquist took the bench as an associate justice, the Supreme Court decided both Roe v. Wade (holding state laws criminalizing abortion unconstitutional) and Furman v. Georgia (imposing a moratorium on the death penalty in the United States). Rehnquist was in the minority in each of those landmark cases, cautioning in both against a failure of judicial restraint. And indeed, as one might expect from a justice concerned with incremental decision making, after Rehnquist's 33 years on the bench and a Court remade almost entirely by presidents on the political right, the substantive law on many of these key tenets of progressive constitutionalism, with the notable exception of states' rights, remains little changed.

What Rehnquist altered -- perhaps permanently -- is the idea that the United States might soon return to an age when the courts are what Alexander Bickel famously called “the least dangerous branch.” The Rehnquist Court overturned acts of Congress at a rate twice that of the Warren Court. Over the course of seven administrations, it has also vigorously policed the power of the executive branch -- insisting a sitting president could be subject to civil suit and, more recently, wading into the limits of presidential war powers at essentially the first opportunity. And with Bush v. Gore, the Rehnquist Court demonstrated itself to be eminently comfortable with resolving political questions and with replacing the judgments of otherwise sovereign state courts with its own. While Rehnquist may have come to the position of chief justice on a platform of judicial restraint, his legacy is manifestly just the opposite.

With the significant exception of states' rights, radical changes in the substance of constitutional law will not be the Rehnquist Court's primary legacy. For example, despite the enormous political attention paid to abortion during the past three decades, the law today remains much as it was after Roe was decided: Decisions about reproduction are primarily the province of the individual and may be regulated by the state only in ways carefully tailored to take account of the liberty and privacy interests at stake. While the Court has repeatedly confronted new state abortion regulations during the past 32 years, Roe's central holding recognizing a constitutional liberty interest in reproductive choices has been endorsed by all but four of the 17 justices during this time who have had occasion to consider it.

While the Court's death-penalty jurisprudence underwent a more complex constitutional evolution during Rehnquist's tenure -- the extraordinary Furman moratorium was lifted just four years after it was imposed -- the past three decades have seen a clear, if not steady, evolution of procedural protections that favor the rights of the capital defendant. In recent years, Justices Antonin Scalia and Clarence Thomas have joined Justices John Paul Stevens, Ruth Bader Ginsburg, and David Souter in insisting that juries, rather than judges, find facts that would support a sentence of death. A broad middle swath of the Court -- led by, but not limited to, Sandra Day O'Connor and Anthony Kennedy -- has concluded that the imposition of the death penalty under certain circumstances (for example, upon the mentally ill) is categorically prohibited. In 2004 alone, the Court stepped in to grant certiorari or reverse the 5th U.S. Circuit Court of Appeals four times for failures by Texas to uphold constitutional protections mandated before the imposition of death.

Beyond these, Rehnquist may have been disappointed to know that affirmative action would survive his tenure on the Court, as would the much-maligned doctrine of substantive due process (the quasi-textual hook for much of the Court's recognition of protected liberties under the Constitution) and the right to be read Miranda warnings when arrested. Indeed, when it came down to it, it was Rehnquist himself who delivered the 7-to-2 opinion reaffirming Miranda in 2000 -- after decades spent trying to limit the reach of Warren's right to remain silent. Why? Because while Congress might have wanted to reject Miranda warnings by passing a statute to that effect, in the Court's view, “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Substantive law aside, the judicial commitment to stare decisis trumped the interests of a meddlesome Congress.

The obvious exception during Rehnquist's tenure to the doctrinal stasis just described is the radical shift in the constitutional relationship between the states and the federal government. Interpreting the Constitution's 11th Amendment and commerce clause, the Rehnquist Court made enforcement of various federal laws -- from the Gun-Free School Zones Act to the Religious Freedom Restoration Act to the federal patent statute to the Age Discrimination in Employment Act -- against state governments exceedingly difficult.

But even that sea change in law may soon have run its course. The Supreme Court rejected federalism-based challenges in more cases than it upheld them in each of the terms from 2001-2004 -- a stark reversal from the decade before. Particularly noteworthy among these was the Court's 5-to-4 decision in Tennessee v. Lane concluding that Congress could indeed abrogate state sovereign immunity through the federal Americans with Disabilities Act and require states to provide their wheelchair-bound citizens ramps to get up state courthouse steps. Rehnquist naturally dissented in Lane, arguing that Congress had failed to identify a real problem with individuals being denied access to courts (George Lane's experience, as a paraplegic, crawling up two flights of steps at the county courthouse notwithstanding).

More striking, he criticized the majority's “as applied” approach to the case as a bad lesson for the Court to give Congress. Rehnquist lamented that the Court's decision “eliminates any incentive for Congress” to comport with the Court's own view of when legislation is needed to enforce equal-protection rights under the Constitution (which expressly vests Congress with the task of determining when to enact legislation enforcing those rights). Indeed, Rehnquist remarkably argued, it was a lesser exercise of judicial power for the Court to invalidate an entire federal anti-discrimination statute in one blow than it was for courts to evaluate the statute's constitutionality case by case, leaving open the chance to preserve some of what Congress was attempting to do. Either way, there was no question but that the Court should drive Congress's vision of anti-discrimination under the equal-protection clause -- not the other way around.

But even the singular doctrinal advance in the federalism cases was bent during Rehnquist's tenure to the far more consistent imperative to assert judicial power. Most notably in Bush v. Gore, the Rehnquist Court applied the equal-protection clause to engage in state election administration and based its view of the appropriate remedy for this on its interpretation of Florida election law, rejecting the Florida Supreme Court's own construction of that state's election laws.

In a thoroughly different context, Rehnquist also departed from his view of the role the courts have played in wartime -- that is, waiting until after the crisis has passed to challenge assertions of executive power. In one of the enemy-combatant cases decided during the 2003-04 term, O'Connor (joined by Rehnquist) “necessarily reject[ed] the government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.” Even if laws speak “with a different voice” in wartime, as Rehnquist had written in his 1998 book, the courts are still the primary branch to do the speaking.

The Supreme Court has hardly seen the last of these executive power cases -- or the abortion, death-penalty, affirmative-action, and federalism cases that have been its lifeblood for the past 30-plus years. With John Roberts and O'Connor's replacement on the way, the doctrine in these areas might ultimately change. Indeed, Rehnquist laid the institutional groundwork for a Court, seemingly unbound by judicial restraint, to radically reshape constitutional law in the coming years. And having tested the limits of power during the Rehnquist era, the Court seems unlikely to let something like Rehnquist's death alone alter its course.


Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and a visiting scholar at the Woodrow Wilson School for Public and International Affairs at Princeton University. She clerked for Justice John Paul Stevens during the Supreme Court's 1999-2000 term.

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