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Spring Books

Rehnquist leads new ‘judicial activism’

Edited by Herman Schwartz
Hill & Wang, 276 pages, $25


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, women’s 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 nation’s 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