A True Judicial Activist

Washington is about to erupt in Fitzmas, so if I want to post on something other than the leak investigation, I feel I should do so now.

Sufficient time has passed since the death of Chief Justice Rehnquist that I feel it is appropriate to now address my central criticism of Rehnquist's tenure: that he was just as much a judicial activist as William Brennan was accused of being. Many years ago, Brennan surprised friends by telling them that Rehnquist was his best friend on the Court, yet the two may have had more in common than right-wingers are willing to admit. Brennan was famous for saying he knew how to "count to five" on the Court, meaning that he understood all he needed was five votes to be in the majority, and critics say that Brennan looked only at end results, without consistent legal reasoning or arguments. Rehnquist could "count to five" with the best of them.

Last month, the Powerline blog posted this article on Rehnquist by Harvard law professor, William Stuntz. I was a little bit surprised that a conservative blog would favorably post such an item, which seemed to confirm my thesis about Rehnquist the activist judge. But I'm grateful for them for calling it to my attention.

I had Stuntz as a law professor when I was at the University of Virginia School of Law and he is simply a brilliant man. Stuntz clerked for Justice Powell the same term that Bowers v. Hardwick came down and had some interesting comments about how he thought Powell might have come down differently in the case if presented with different arguments. But I digress.

Stuntz makes some interesting points about Rehnquist's tenure:

Rehnquist opinions have a certain casualness about both reasoning and
citation -- he was famous for misdescribing past cases to make them say what he
wanted. He was also well-known by law clerks for cutting out most of the
reasoning in their opinion drafts. The classic Rehnquist opinion would state the
facts (sparely), state the issue, and state the result, with as little
explanation as possible. With one exception: Rehnquist was an artist at laying the groundwork for some future legal development he wanted but for which he didn't yet have the votes. When reasoning was just reasoning, Rehnquist didn't much care about it. When the choice of legal arguments offered a shot at some future bottom line, he cared a lot. Reasons were mere tools. Results were the point of the exercise.

And he believed in seizing opportunities. I clerked for Lewis Powell during his next-to-last year on the Court. That year, Rehnquist was assigned the majority opinion in what looked like a not-very-important criminal case. His law clerk wrote an opinion draft; Rehnquist pared it down a little, then circulated it. Quickly, six of the other
eight Justices -- including William Brennan and Thurgood Marshall, the Court's
leading liberals -- joined. Rehnquist was appalled: if he was getting more than five votes, that meant he had left money on the table, that he could have pushed the law farther in his preferred direction without losing his majority.

Above all, he was the bottom-line Justice. Faced with a choice between theoretical consistency and a favorable outcome, he would pick the outcome every time. No judge's decisions fit any theory perfectly, but Rehnquist was clearly at one end of the spectrum in this regard. Lawyers call it "result oriented," and it's usually a pejorative. Rehnquist might have considered it a compliment. He seemed to think that law should be result-oriented: the Brennans of the world had their preferred results and he had his; the two sides should duke it out. Theoretical consistency, in his view, was overvalued. Rehnquist understood that the law is filled with compromise and conflicting principles, that without those inconsistencies the machinery can't run. And he believed in making the machinery run -- even the most liberal Justices rejoiced at how smoothly the Court functioned after he took over the
Chief's chair from Warren Burger. Just as meetings in George Bush's White House
begin when they're supposed to and end when they're supposed to.

A large and important strain in American conservatism emphasizes the power of
ideas. Twenty years ago, a favorite conservative slogan was the title of Richard
Weaver's book: "Ideas Have Consequences." But another important strain values
institutions and societies more. Theories come and go -- crucially, one can
never tell which theory will rule the roost tomorrow -- but the Court, and the
justice system, live on. Like most conservatives of his generation, Rehnquist
was always one of the institutionalists. Legal conservatives of his generation
sometimes made "original intent" arguments and sometimes not; they didn't
consistently buy any one theory. Instead, they had a general sense that
individual rights had expanded too much and federalism was protected too little.
Rehnquist agreed, and pushed against both trends, using whatever theory was most
convenient....

Something similar is true of Rehnquist's federalism cases. They are shaky
legal authority, not just because most of them received only five votes
(including both Rehnquist and O'Connor, the two Justices Bush is about to
replace), but because they contain no clearly articulated, well-defined theory
that explains why someone with a different view might want to switch
sides.

Stuntz's view of Rehnquist as a results-oriented justice screams "activist," even if Stuntz never uses that phrase. But the evidence is surely there.

Perhaps the best example of Rehnquist The Judicial Activist is Seminole Tribe of Florida v. Florida (1996). Seminole Tribe had its origins in the obscure Eleventh Amendment, but it had important, significant implications in the areas of federalism and the commerce clause.

First, Rehnquist held that the plain text of the Eleventh Amendment didn't mean what it said and imposed a broader meaning into the Amendment based upon what he claimed was the unwritten meaning of the Amendment. Even though the Amendment clearly only serves to bar suits against a state by citizens of another state, Rehnquist's opinion interpreted the Eleventh Amendment to also bar suits against a state by citizens of that same state, a restriction that appears nowhere in the Amendment's text. Stunningly, a supposed strict constructionist was claiming that this decision was founded upon the "jurisprudence in all civilized nations" and that strict devotion to only the text of the Eleventh Amendment would "strain the Constitution and the law to a construction never imagined or dreamed of." Ignore the inequivocal language of the Constitution itself, Rehnquist held -- it means something different because me and four other justices say so.

But this was a critical step to get where Rehnquist needed to go, which was to limit Congress' commerce power. You see, the law at issue in Seminole Tribe was passed pursuant to the Indian Commerce Clause and was designed to abrogate Florida's Eleventh Amendment immunity. But Rehnquist then took his next critical step -- Congress could abrogate soveign immunity based upon Section Five of the Fourteenth Amendment, but not the commerce clause. In one full swoop, Rehnquist was able to limit Congress' ability to provide individuals with private federal causes of action against states for a litany of violations.

But Rehnquist couldn't stop there. The problem he had was a mechanism had been developed pursuant to a case called Ex Parte Young that allowed individuals to sue a state by suing an official of that state in his or her "official capacity," creating a fiction that you are not suing the state and avoiding Eleventh Amendment problems. Rehnquist had to cut off this possibility or else everything else he had done in the opinion would be for naught.

So Rehnquist wrote for the Court that Ex Parte Young was not applicable to this case because Congress had created a remedial scheme under the applicable statute which did not include a private right of action, and, where Congress does so, a cause of action under Ex Parte Young should no longer exist. (Rehnquist, of course, ignored the fact that the specific remedial scheme developed by Congress that he touted could not be initiated absent a finding first by a federal judge against that state). Thus, Rehnquist's opinion meant that, although Congress had intended to abrogate state sovereign immunity, it lacked the constitutional authority to do so, and Congress had not intended to allow suit against the state official, despite the fact that it did have authority to do so. (For an excellent discussion of the Seminole Tribe opinion, I recommend this law review article.)

Such legal gymnastics are truly the mark of an legal activist. A true judicial conservative should be outraged by this piece of work by Rehnquist. But "activists" on the right were thrilled -- Rehnquist had breathed new life into a powerful conservative weapon. Make no mistake: Bill Rehnquist was no less political as Chief Justice than he was harassing minority voters for Goldwater in 1964 or when he was in Nixon's Office of Legal Counsel. He just had five votes.
- posted by Joshua @ 11:07 PM