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Books Rehnquist leads new judicial activism
THE REHNQUIST COURT:
JUDICIAL ACTIVISM ON THE RIGHT Edited by Herman Schwartz Hill
& Wang, 276 pages, $25 |
Reviewed by ROBERT
DRINAN
In 16 essays by knowledgeable and distinguished jurists, this
informative volume demonstrates how the U.S. Supreme Court, headed by Chief
Justice William Rehnquist for 15 years, has gone against many of the teachings
of the liberal Earl Warren court.
Even liberal readers may wonder whether the chapters are too
one-sided. There are no voices that are conservative or even moderate. The
unrelenting thesis is that the Rehnquist court has come out on the wrong side
of issues like affirmative action, womens rights, the power of Congress
to impose obligations on the states and the rights of those accused of
crime.
Herman Schwartz, the editor of this collection of valuable essays,
is a highly regarded liberal professor at American University Law School in
Washington. He arranged for a version of these papers to be published in a
special issue of The Nation magazine.
The most prominent decision in this collection is the 5-4 ruling
of the Supreme Court in December 2000 that gave the presidency to George W.
Bush over Al Gore. Jurists and others will be pondering for generations to come
whether that ruling comports with the generally conservative leanings of the
Rehnquist court. The authors in this anthology seem to think that it does. For
them it is another example of judicial activism -- in open contradiction to the
battle cry of Republicans over the last 30 years that judicial activism is
wrong.
This valuable book is relentless in its insistence that the
Rehnquist court, mostly in 5-4 rulings, has reversed or qualified many of the
great victories for civil rights and equal protection of the Warren court. Some
readers will feel that this thesis is pushed too dogmatically. But the facts
gathered here are powerful reminders of how the nations highest tribunal
has altered the ideological landscape of America.
The book points out that the Republicans have won five of the last
eight presidential elections and all but two of the present judges were placed
there by Republican presidents.
It is also noted that Rehnquist has sharply curtailed the number
of decisions. In 1985-86, the court issued 159 opinions; in 2001-02 there were
only 76. The court grants review only in cases where four of the nine justices
vote for such review. The Rehnquist court appears to favor cases where they can
impose a conservative viewpoint.
For at least a century there has been an intense debate about the
role and function of the U.S. Supreme Court. Before and during the years of the
New Deal the court struck down some of the laws passed by the Con-gress to
alleviate some of the worst elements in the Great Depression. About everyone
agrees that the Supreme Court went beyond its appropriate role in striking much
of the legislation. Others say that in the era when Earl Warren was chief
justice the court went beyond its role and engaged in judicial
activism. That term has no precise or universally accepted definition.
The era of judicial activism has been curbed by those who now call
themselves strict constructionists.
The essays collected by Schwartz seem to agree that a majority of
judges of the Rehnquist court have transferred their personal conservatism into
the prevailing opinions of the Supreme Court. Clearly any observer of recent
Supreme Court jurisprudence should read some or all of the vast literature
about the decisions of the Supreme Court over the last 25 years. This
information will be very topical since there will be one or more appointments
to the Supreme Court in the near future.
Jesuit Fr. Robert F. Drinan is professor at the Georgetown
University Law Center.
National Catholic Reporter, February 7,
2003
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