Book Excerpt: 'Supreme Conflict'


Like the Republicans in the political branches, who have flouted ethics laws, increased the size of government, and shown no discipline in cutting runaway spending, the Supreme Court under Rehnquist went astray from conservative legal principles. Over the years, the O'Connor Court became increasingly willing to inject the Court -- and the Constitution -- into explosive public disputes. The justices came to believe that judicial wisdom could help decide the right policy. Their opinions didn't have the aggressively progressive tone of the Warren Court's decisions, which profoundly reshaped constitutional rights and protections in criminal law, civil rights, race relations, free-speech rights, and religion, but they produced significant liberal victories.

That's not to suggest that the Court was liberal. If anything, it was jurisprudentially unmoored. During Rehnquist's reign, the justices were in a constant struggle over which of their competing legal theories was most relevant. They had their own philosophies about the law, so the Court could legitimately be characterized as liberal one day and conservative the next. They tended to think of themselves as individual justices first, and less like a court of nine working to find consensus in the law. The Court was ideologically adrift, and its course usually depended on which way O'Connor -- and to some extent, Kennedy -- chose to go.

More often than not, on the big cases involving contentious social issues, O'Connor or Kennedy -- or both of them together -- would join the four liberals to rule against conservative positions. Only two of the justices who took the liberal path were Democratic nominees. The other four were appointed by Republicans. President Ford appointed John Paul Stevens, a maverick whose vote became solidly liberal after his first decade on the Court. Reagan tapped swing justices O'Connor and Kennedy. George H.W. Bush selected David Souter, one of the Court's most predictably liberal members.

As chief justice, Rehnquist was unable to build consensus and forge coalitions on key cases, even with his old friend O'Connor. At times, the once-fiery dissenter seemed to care more about a case's outcome than about the principled legal reasoning it took to get there, disappointing conservatives like Scalia, who would bluntly note the inconsistencies. In a 1998 case, Scalia accused the Court, with Rehnquist in the majority, of taking an approach it had specifically rejected only the year before. "The changes are attributable to nothing but the passage of time (not much time, at that), plus application of the ancient maxim "That was then, this is now,' " Scalia wrote in a dissent joined by Thomas.18

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