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.


During last year's presidential election, Republicans and Democrats alike stoked party stalwarts by declaring that the race between George W. Bush and John F. Kerry was not simply about winning the White House for the next four years. With as many as three appointments to the nation's top bench going to the victor, it was also about whether conservatives or liberals would control the United States Supreme Court for the next quarter century or more. Abortion rights, affirmative action, gay marriage, and much, much more supposedly hung in the balance.

But does the Supreme Court really matter that much? In his provocative new book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (W.W. Norton), Mark Tushnet of Georgetown University Law Center suggests that the High Court's influence on American life is generally overstated. He also sketches the legacy of William Rehnquist as chief justice, declares that Antonin Scalia "isn't as smart as he thinks he is," and argues that the often dismissed Clarence Thomas is philosophically the most interesting sitting justice.

Reason Editor-in-Chief Nick Gillespie spoke with Tushnet in April.

Reason: Is the Supreme Court a major factor in changing American society?

Mark Tushnet: If you're trying to chart the direction of the country–and I'll make up a number here–95 percent of it is due to changes in culture and politics. The Court can have some influence on the margins, pushing things a little further in the direction that they're already moving or sometimes retarding the direction. But 10 years down the line, the society's going to be pretty much where it would've been even if the courts hadn't said a word about it. I've used a metaphor from sound engineering. It's "noise around zero." It sort of fluctuates up and down around the trends, so sometimes they're ahead of the trend. Sometimes they're behind the trend. The reason why the Rehnquist Court's economic conservatives won and its social conservatives lost is because that's what was generally happening in American politics.

Reason: Let's talk about this in relation to two controversial cases that seemingly had a massive impact on the country: Roe v. Wade [1973], which legalized abortion, and Plessy v. Ferguson [1896], which ratified de jure segregation.

Tushnet: The Court was a little ahead of society with regard to what we now describe as the core holding of Roe v. Wade–that is, that it's impermissible to criminalize [all] abortions. But that was where the country pretty clearly was trending. I should add that the Court formulated a legal doctrine that pushed them quite a bit ahead of where the country was. That's why the anti-abortion response has had legs over the years.

Reason: What about Plessy v. Ferguson? The Court stepped in to say that a law barring a railroad from selling first-class tickets to blacks was constitutional. Isn't the fact that the railroad wanted to sell tickets to blacks a sign that the country was trending toward integration?

Tushnet: When you get into details, it always gets complicated. On the issue of race, the Court was where the society was at the time. On the issue of economic regulation, it was pretty much where the society was, too, in allowing the state to regulate economic activity.

Reason: Because, contrary to the received wisdom, the so-called Gilded Age was hardly a time of runaway laissez-faire. You actually had the courts supporting all sorts of state regulation of economic activity.

Tushnet: Right. A decade later, in Lochner v. New York, the Court said, no, you have an almost absolute right to contract. And that in the end got washed away [during the New Deal years]. So the Court is a factor in where society's going, but it generally reflects our ambivalence more than it directs us.

Reason: As we're talking, we're waiting on a decision in the medical marijuana case Ashcroft v. Raich. Medical marijuana is legal under California law and illegal under federal law, and basically everyone agrees that there is no interstate commerce dimension to the case. Most legal observers, including yourself, say one of the main thrusts of Rehnquist as chief justice has been his emphasis on federalism, on devolving power back to the states. From a federalist perspective, there's really no good legal argument against Angel Raich and her fellow defendants. Yet no one seems to expect Rehnquist–or the Court–to rule against the feds' position.

Tushnet: With Rehnquist and, I think, the Republican Congress and president in general, federalism is instrumental to a deregulatory program. Where it seems as if leaving stuff to the states will produce less economic regulation, that's where the Court will go. If it seems that letting the states do things will produce more regulation, then the Court will place limits. The real issue is actually economic regulation. They see federalism as a means, not an end.

Reason: What is Rehnquist's legacy as chief justice?

Tushnet: I think he's likely to be regarded historically as an extremely influential and significant chief justice. Partly that's because he was there for so long, but it's also because he adhered to a consistent philosophy from the beginning to the end and he hung in there and waited for the world to change around him. I don't think he changed the world a whole lot, but as the world changed, he was able to accomplish things that he couldn't have accomplished at the beginning.

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?