The Rehnquist Court: Judicial Activism on the Right
by Herman Schwartz
Publisher: Hill & Wang, 2002

book reviewed by Scott Christianson

William H. Rehnquist has been around almost as long as Strom Thurmond, his kindred spirit. Nixon appointed him associate justice in 1971 and Reagan anointed him as chief justice in 1986. (Remember how both of those presidents ranted and raved about "activist" judges and the need for "strict constructionists"?)

Today it's rumored that Rehnquist, 78, may finally retire at the end of the Supreme Court's current term, which normally would be cause for celebration, except that President George W. Bush will be the one selecting what comes next. God help us all.

Prof. Herman Schwartz of American University Law School has been one of the nation's top constitutional law authorities even longer than Rehnquist (although as an advocate in behalf of civil rights and human rights, not as their foe).

Many legal readers know him for his book, The Burger Years (1987), his successful campaign against Robert Bork, and his commentaries for liberal journals such as The Nation. Some even remember him from his involvement as an observer at the 1971 Attica prison riot and his brief service in Albany as acting chairman of the State Commission of Correction. He's brilliant and sharp.

With a good sense of timing, Schwartz has now produced a powerful collection of incisive commentaries about the Rehnquist Court, which includes essays by 17 leading legal scholars and the journalist Tom Wicker, assessing just how much Rehnquist has jerked the Court to the right on a host of pressing social issues.

It's a shocking picture when seen in its totality.

Too often we've gasped and grumbled about one decision or another, such as the actions of the Court in the 2000 Election. Yet, as this collection shows, the real damage has been very deep and extremely widespread. What's more, the activism of the Court under Rehnquist's influence really has been breathtaking when you take into account the alleged shift away from activism that he and other conservatives were supposed to embody.

Indeed, as this book shows, under Rehnquist's reign, and often by a series of 5-4 decisions, the Court has dramatically moved to the right, which means that it has moved the country to the right, exhibiting a judicial activism that has not been seen since at least the 1930s. And it/Rehnquist/they have gotten away with it!

Indeed, Tom Wicker rightly wonders whether it's not fair to question if "virtually anything the Supreme Court does-short of ordering surrender in a time of war-is now acceptable to the American people?" Wicker also reminds us that the Court has become a coequal branch of government, right up there with Congress and the executive.

This isn't a book about Rehnquist's racist history, or a psychological analysis of his psyche. But Schwartz has gathered many of the leading experts in various areas of law to recap what has happened under Rehnquist, and in that sense, it represents a valuable contribution.

Stephen B. Bright documents how the Court has whittled away the rights of persons facing capital punishment. Charles Ogletree recounts how it has narrowed the rights of the accused and William Hellerstein points to the wholesale overturning of decisions favorable to prisoners-at a time when the U.S. has become the biggest jailer.

With speech, abortion, gay rights and religion enjoying the area of greatest solicitude (relatively speaking) from the Rehnquist Court, the commentators wonder how that might change. And Norman Redlich offers a comprehensive essay on church-state separation and the free exercise of religion that reviews a number of important actions.

How the Court has dealt with the environment and civil rights is sufficient to curl your hair. We also learn how the tilt toward business interests and the retreat from corporate and securities regulation has opened the door to global abuses such as Enron and you-name-it.

In the process, we get to see how internal inconsistencies and contradictions pop up between one area of law and another.

Ultimately, the politics of it all obliterates any pretense of judicial independence, fairness or justness.

It's all there, folks-cogently presented and catalogued. If you read anything about the actions of the Supreme Court, read this primer. And cringe.

*******

Scott Christianson is an ancient Albany writer and the author of several books including With Liberty for Some.

01/14/2003