Rehnquist Remembered 

Rehnquist Remembered

Eve Tushnet (daughter of a famous American Constitutional Law prof) said once that there was only one Supreme Court decision that made liberals as made as any of the social issues cases made conservatives: Bush v. Gore. By comparison, U.S. v. Lopez (Congress attempting to ban certain weapons from school yards) and U.S. v. Morrison (Congress attempting to provide redress of last resort for female victims of sexual assault) were small potatoes. Many liberals will say (even in the obits) the Court "pushed back" the Commerce power with these cases, or added new restrictions to it. It seems more true that Congress was trying to establish a couple of new beachheads in what had always been state and local police power, and the Court said no. Maybe the Warren Court, or a similar group, would have said yes. Who knows?

Ann Althouse has emphasized Nevada v. Hibbs as a case where Rehnquist proved to be surprisingly liberal (upholding family and medical leave established by Congress for the whole country). Now one of the pieces on Slate says Rehnquist was being strategic. The votes were in place for a 5-4 decision upholding the Act of Congress; by making it 6-3 Rehnquist got to write the decision, and restrict it. UPDATE: It was Dahlia Lithwick. (UPDATE: in support of Lithwick's view, Rehnquist wrote that if the case were based on the commerce power, Congress would have lost. Rehnquist saw it as a case of enforcing the 14th Amendment under the 5th section, as I recall, of that Amendment. Still not an argument one would expect from an enemy of the Warren Court, but consistent with Lopez and Morrison in (supposedly) holding the line on the commerce power).

In Bush v. Gore, Rehnquist led the "conservative three" who tried to say the Florida count should go back to the original totals, with no interference from the Florida courts. Article 3 of the Constitution, it would seem, protects the actions of state legislatures, not judicial review by state courts. But there were only three votes for that opinion, so they had to come up with a cocakamamie view that "equal protection" had been violated in some counties, and Florida had to have a bigger re-count, however there wasn't actually time for that. And by the way, we don't mean to apply any of this to any other state in this or any other election. Now that is arbitrary legislating by a court, making up rules that apply only to the case at hand. What would have been so bad about leaving it to Congress?

To an amazing extent, the liberals have been winning. On federalism, the Rehnquist Court did more on the 11th Amendment than on the 10th--and there was a joke a while ago that you would get a lot of blank looks from educated Americans by talking about the 11th Amendment, "state sovereign immunity." They did throw around phrases about the sovereignty of states far too easily--really building on the work of Taney, who was CJ for a long time, but is famous mostly for Dred Scott v. Sandford (in which he did not respect states' rights).

Kelo: the Court upheld the use of eminent domain not for truly public purposes, but to turn land over for development into a "higher and better use," with resulting higher tax revenues for a municipality. Conservatives and liberals are split on this decision.

The medical marijuana case [Raich]: yes, the Rehnquist Court, even O'Connor, were terriers on the War on Drugs. I have to look up Thomas v. Ginsberg again on drug testing high school kids in extramural activities.

UPDATE: Here's what I said before, referring to my class:

On search and seizure, I drew a kind of crude continuum: at one (left) extreme, courts are trying to prevent police from taking too many liberties; one's home is pretty well safe from a warrantless search, exlusionary rule applies, etc. But as you move to the right, there are exceptions: your car much less protected than your home; a "container" such as a purse much less protected in a car than it is elsewhere; searches can be done as part of an arrest, and even on the basis of a suspicion; arrests can be made even for a ticket-only misdemeanour. And finally, the piece de resistance, high school students who take part in extra-curricular activies can be searched without their consent on a regular basis--specifically, they can be forced to take drug tests.

The first "right-wing" case on high school teams concerned a football team. We didn't read this case, but there are plent of references to it in Bd of Education v. Earls, which we did read. The football team in Vernonia was in a school with a particularly bad drug problem; there was reasonable evidence or suspicion that some football players were in the middle of the drug scene; and athletes on a team have substantially given up their privacy, above all by agreeing to "communal undress."

Somehow, Justice Thomas in Earls persuades a majority to permit drug-testing once again, even though the high school in question is not known to have a particular problem, there are no specific students who are known as problem cases, and it is hard to argue that the chess club or the choir ever agreed to communal undress.

I read quite a bit of this in class, and got some laughs. I'm not inclined to say Thomas is crazy--I like his opinions on affirmative action, charter schools and free speech. But here he does seem absolutely crazy. Given the controversy about his confirmation--which still seems able to put him on the boil at any time--is he the right person to keep referring to the "communal undress" of a high-school choir, presumably mostly female? Thomas even describes in great detail the procedure to make the kids urinate, in order to confirm that it is not "intrusive". (The kid can have the privacy of a cubicle--even a male! that's more than we said before, says Thomas--but the adult monitor must be able to hear the tinkle. Didn't that Irish track star manage to hand over a urine sample that had whisky in it? Pouring whisky might make a tinkle, I guess).

Ginsburg for the minority has great fun with this, and rightly so. Dahlia Lithwick also wrote about it at the time.

UPDATE: Another difference between the football team and the marching band: football players who are high are more of a risk for injury, including serious injury, both to themselves and others. As Ginsburg says, there are no reports of flying tubas.

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