Document Type

Article

Publication Date

2003

Abstract

The Supreme Court is implicitly assumed to have a certain unity of character under each Chief Justice. Hence, we refer to the "Marshall Court," the "Warren Court," and the "Rehnquist Court." A closer look at history reveals that this assumption of a natural Court defined by the tenure of each Chief Justice is often misleading. The Marshall Court had a different character late in its life than it did in its early years.1 Similarly, the Warren Court became distinctively more liberal and activist after 1962 when Felix Frankfurter retired and was replaced by Arthur Goldberg.2

Although the Rehnquist Court is still with us, we can already perceive that there have been two Rehnquist Courts. The first Rehnquist Court lasted from October 1986 to July 1994. It featured frequent membership changes, a relatively full (but declining) calendar of argued cases, and majority coalitions that shifted from issue to issue. The questions that commanded the most attention were social issues, such as abortion (and in particular whether Roe v. Wade3 would be overruled), other privacy issues like the right to die, affirmative action, and government speech on religious topics (such as school prayer and creches in city hall). Yet, notwithstanding its attention to these issues, the Court produced relatively few important doctrinal innovations in these areas, and high-profile cases often ended up with no opinion commanding the support of five Justices.

The second Rehnquist Court started in October 1994 and is still with us. This Court has had no change in its membership, has decided just half the number of cases the Court did in 1986, and is increasingly dominated by a single bloc of five Justices. Social issues like abortion, affirmative action, and school prayer have significantly receded from the scene. Instead, the dominant theme of the second Rehnquist Court has been constitutional federalism, including the scope of federal power under the Commerce Clause and Section 5 of the Fourteenth Amendment, Tenth Amendment limitations on federal power, and state sovereign immunity from private lawsuits reflected in the Eleventh Amendment. The Court has generated a number of important innovations in the interpretation of these provisions, nearly always in decisions in which the controlling opinion garners exactly five votes. These innovations, together with other controversial 5-4 decisions like Bush v. Gore4 and Boy Scouts of America v. Dale,5 have evoked heated accusations that we have entered a new era of "judicial sovereignty." 6

Comments

Include Statement: Reprinted with permission of the Saint Louis University Law Journal © 2003

St. Louis University School of Law, St. Louis, Missouri.

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