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Judging the Rehnquist Court

Philip Burrowes

Since the days of John Marshall, the United States Supreme Court has played the paradoxical role of a good ol’ boys club at the cutting edge of jurisprudence. Perhaps no other government institution this side of the President’s Cabinet is so rife with patronage, yet historically justices have never been quick to kowtow to popular or elite opinion. From recognizing the Cherokee Nation as sovereign way back in 1832, to the deliberately conservative Burger Court’s legitimizing of abortion in 1973, the Court has possessed an almost avant-garde morality, often to the chagrin of the rest of the government. Yet through it all -- sedition, depression, segregation, etc. -- the Court has managed to handle cases as it has wished.

That is, up until Bush v. Gore.

Both the Court’s initial request for clarification from the Florida Supreme Court and the final decision were handled extremely quickly. Cases can take months just to have their application for certiorari denied. Even if the Court chooses to hear a case, justices will normally deliberate and debate a decision for some time. It can be argued that no case has truly merited such alacrity before, but the impact of that case will be minimal compared to an even relatively obscure matter such as West Coast Hotel v. Parish. In that case, the nation’s economy and, as a result, the Court’s composition were at risk but it would have been seen as ludicrous to grant a writ, hear, and decide in a matter of days. Although it cannot be denied that the speed was helpful, it was (ironically enough) unprecedented.

Granted, the Court did not completely acquiesce to any one side. For one, it demurred at deciding the matter immediately. Second, it refused to either let television crews into the courtroom or to speak extensively to the press. Third, several justices were careful not to step on the toes, so to speak, of state sovereignty. All of this was in the face of intense, international media scrutiny of levels that the Court had not truly experienced at any point in its history. In enduring that scrutiny, the justices are commendable. At the same time, the Court betrayed the legacy of its most recent incarnations by dividing along largely partisan lines.

The Warren and Burger Courts had liberal -- some would say even radical -- decisions which belied the natures of the presidential administrations which appointed their members. This Rehnquist Court has seemed to succumb to the expectations of Reagan, Bush, and Clinton (not to discount Nixon’s eventual payoff with Rehnquist himself). That is, their appointees, despite a little fence-sitting by Kennedy and O’Connor, have decided as they had hoped; Clarence Thomas was an outright coup for Bush.

Sadly, the external effect of the media may be far more important than any of these internal changes to the Court. Many Americans are seeing the federal justice system at work for the first time. As far as many were concerned, the law, whether it be constitutional, an act of Congress, or of a state Supreme Court, had only exacerbated the madness. The Supreme Court became part of the grimy lawyer image in their minds, despite and partially because of the special measures it had taken. The multitude of cases, as well as the general obtuseness of the Court, made it all the more difficult for the masses to rationally consider.

In legal terms, this case may very well be sui generis, so its impact on future decisions would be very limited. Furthermore, it was not extremely decisive; if by some freak set of coincidences, a similar procedural question were to emerge in the near future, it would still be hotly debated. Still, this case’s impact on the image of the Court is indelible. It may well be as historically defining a moment for the Rehnquist Court as Brown v. Board of Education and Roe v. Wade were for Warren and Burger. For the present, no person in America can look at the Court as it did before.