Book Excerpt: 'Supreme Conflict'


Ronald Reagan made four appointments to the Supreme Court, but he failed to reverse the legacy of the liberal Warren Court. Nor did Richard Nixon, who also nominated four justices, including Rehnquist. Nixon, like Reagan, deliberately made his nominations to reverse the Court's direction. But Nixon ended up with yet another liberal court— and he appointed a justice, Harry Blackmun, who would write Roe v. Wade, a decision that would outrage conservatives for decades to come and change forever the tenor of confirmation hearings.

Change does not come easily in an institution that, once set on its course, moves with all the speed and agility of an oil tanker. Rehnquist himself tried to explain in speeches in the mid-1980s why presidents so often fail to transform the Supreme Court. Beyond legal principles that can constrain justices from readily overturning previous decisions, Rehnquist speculated that new issues come before the Court that the justices -- and the appointing president -- simply never considered. Then there is public opinion. The justices work in an insulated atmosphere in the courthouse, but they go home and read the papers and talk about current events. Just as one planet can affect the orbit of another, public opinion "will likely have an effect upon the decision of some of the cases decided within the courthouse," Rehnquist said in a 1986 speech.

But conservative leaders, long focused on turning those tides of public opinion in their direction, have always grumbled that its influence always pulls justices one way: toward liberal elites in the media, especially the editorial pages of the New York Times, and at law schools, where most prominent academics see the Warren Court as the standard-bearer.

The Rehnquist Court had proven deeply disappointing to the Right. Justices billed as conservative proved not to be; justices who were solidly conservative shifted the court in unexpected ways. In both its reason- ing and results, the Court failed to live up to conservative expectations and at times acted directly contrary to them. With seven Republican appointed justices, the Rehnquist Court had refused to overturn Roe v. Wade, which guaranteed a woman's right to an abortion. It reaffirmed Miranda v. Arizona, a 5-4 Warren Court decision that required police to give warnings against self-incrimination to criminal suspects in custody. 12 It would not bring down the curtain on affirmative action.13 It put greater restrictions on the death penalty14 and created new rights for gays and lesbians,15 expressly overturning earlier decisions in the process. It imposed sharper limits on presidential power than ever before.16

By the end of Rehnquist's tenure as chief justice, his court was decidedly not conservative. With O'Connor and Kennedy at its center, the Court was willing to identify new rights in the Constitution and take on all those nettlesome social issues that conservatives thought should be decided by legislatures. The Rehnquist Court didn't hesitate to take on the most hotly debated public issues of the time -- abortion, gay rights, affirmative action, the death penalty, presidential power, the separation of church and state. Sometimes the decisions were narrow. Sometimes the justices split the difference between two strongly argued extremes.17 But more often than not, on the most volatile issues, the Court did not take the conservative path.

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