Book Excerpt: 'Supreme Conflict'

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Unmoored as the Rehnquist Court appeared to be, however, few would argue that it was more expansive in granting rights than the Burger and Warren Courts would have been -- with the possible exception, ironically, of Bush v. Gore, which ruled that the Florida recount in the disputed 2000 presidential election violated equal protection. During Rehnquist's remarkable thirty-three-year judicial career, he eventually molded other justices to his strong law enforcement views. His Court imposed limits on affirmative action and narrowed the use of redistricting designed to increase minority representation. It allowed more religious expression, including school vouchers for parochial schools. He also led a Court that was more assertive about its own authority, and more willing than any other Court in modern times to invalidate federal legislation that infringed on the states' concerns.

But the Rehnquist Court didn't dig up the foundation cemented by more left-leaning Courts and justices. Some of Rehnquist's victories, especially in scaling back congressional power over the states, had little practical impact. The way conservatives saw it, his Court did little to impede the liberal agenda, and in many cases actively furthered it. On one key social issue after another, the Rehnquist Court seemed bent on frustrating those who had long dreamed of restoring the Court to what they saw as its proper place in the system of government.

Perhaps that is why most liberal criticism of the Supreme Court focused more on fears about where the Court was headed than where it actually stood toward the end of Rehnquist's tenure.

Academics have written about the Rehnquist Court's surprising liberal legacy. Some have attributed its shift left to the Court's ruling in Bush v. Gore, which ended the bitterly contested 2000 presidential election and handed the presidency to George W. Bush.19 That decision opened the Court to withering criticism for deciding the case on politics, not law. Those denunciations may have made the Court's centrists even more wary of being cast as predictable conservatives, a concern that would push the Court even further left in the remaining years of Rehnquist's tenure. But the suggestion that O'Connor and Kennedy voted with the Court's liberals only in the years after Bush v. Gore, in order to counter allegations by the media and law professors that they had been driven by rank partisanship, ignores a decade of their earlier rulings on social issues.

Still, the 2000 election was without question a watershed event for the Court. The outcome of the race came down to fewer than a thousand votes in Florida. Al Gore initially conceded defeat on election night when it appeared that Bush had carried the state and won the presidency, but the balloting was so close, the stakes so high, that Gore withdrew his concession and decided to challenge the results and ask for a partial recount.

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