Not So Supreme

A Court Divided author Mark Tushnet explains William Rehnquist's legal legacy--and why the nation's top court matters less than you think.

Nick Gillespie from the July 2005 issue

(Page 2 of 2)

He was also extremely effective as a chief justice in terms of administering the Court. He is extremely well liked by his colleagues, all of them, and he transformed the Court's operations and made it much more efficient. He succeeded Warren Burger, who was essentially uniformly disliked by his colleagues and couldn't run the Court.

Reason: In A Court Divided, you write that Rehnquist and Justice Clarence Thomas in particular have laid the groundwork for a revolution that would truly reconstruct constitutional law. What would the revolution look like?

Tushnet: The easiest way to describe it would be to say that privatization of Social Security was constitutionally required, not just permitted. [A full-blown Rehnquist-Thomas revolution] would develop restrictions on the scope of Congress' power to tax for redistributive purposes and limit what could be done under the rubric of "general welfare." That kind of thing.

Reason: The Court would also severely limit Congress' use of the Constitution's Commerce Clause, which allows the federal government to regulate trade among the states. At least since the New Deal, this has been the legal justification for virtually every law the federal government passes.

Tushnet: Yes. Thomas really has articulated this. His interpretation of the Commerce Clause would be that it only applies to the regulation of stuff as it crosses state lines. Period. Not manufacturing and not agriculture. That means the occupational safety and health laws are unconstitutional and probably, though this is a little trickier, federal anti-discrimination laws might be unconstitutional.

Reason: You don't share Thomas' politics, but you find him interesting.

Tushnet: He has the most consistent conservative ideology on the Court. He is working out a jurisprudence that combines elements of originalism, natural law, and conservatism. There are places where I think he's philosophically quite confused. For instance, he remains a deep admirer of Ayn Rand, who was very anti-religion, and yet is also very committed to the importance of religion in public life. But I don't expect Supreme Court justices to be deep philosophizers. They're interesting when they have interesting sets of ideas.

Reason: Over the next three years, George Bush will almost certainly get to appoint two and maybe as many as three new justices, including a new chief justice. How is that likely to play out?

Tushnet: The first step is replacing Rehnquist as chief justice. He will be replaced by a younger conservative [who is ideologically similar]. The three most prominent candidates are J. Harvey Wilkinson and Michael Luttig of the U.S. Court of Appeals for the 4th Circuit and Mike McConnell of the 10th Circuit. The Democrats are not in a position to stop that, though they'll put up a fuss to satisfy the constituencies that they have to satisfy.

The second appointment, if it's to replace John Paul Stevens or Sandra O'Connor, would be much more consequential. If you're replacing Rehnquist, you're not really going to get much further to the right, whereas with Stevens or O'Connor, there's a lot more at play and the Democrats will probably be more able to temper the selection.

The problem is that we have no idea what the president's political standing will be when the second --or third, if there is one--pick happens. The relevant story here is that Antonin Scalia was appointed with no controversy in 1986. Yet a year or so later, Robert Bork was not able to be appointed. The primary reason was not the difference in their views, but that when Bork was nominated, President Reagan was suffering the effects of the Iran-Contra Affair. Who knows where George W. Bush is going to be at the time a really consequential appointment comes up?

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