University of Pennsylvania Journal of Constitutional Law, Vol. 9, No. 4 (April 2007), pp. 1033-1081

Abstract

The late Chief Justice William Rehnquist presided over the U.S. Supreme Court for nineteen years, longer than any other Chief Justice in the 20th century. Despite this longevity, however, there is little consensus on just what the legacy of the Rehnquist Court is. Was the Rehnquist Court a restrained Court that embraced a limited, text-based reading of the Constitution? Or was it a much more aggressive Court, responsible for a resurgence of conservative judicial activism? Is it best epitomized by the “swaggering confidence” that put a President in office, or the cautious minimalism that disappointed its conservative supporters by failing to reverse -- and in some cases even expanding -- liberal precedents bequeathed to it by the Warren and Burger Courts?

This Paper attempts to shed light on these questions by examining the record of the Rehnquist Court “by the numbers” -- specifically, by asking how many times the Court used its power to invalidate federal legislation, how many times it did so to invalidate state legislation, and how many times it did so to overturn existing precedents? Within each of these areas, I also identify the issue areas in which the Court rendered its decisions, the ideological direction of those decisions, and the vote margins by which the decisions were reached. To contextualize this information, I compare the Rehnquist Court's record in each of these areas to the records of the Warren and Burger Courts.

I conclude that, at least as measured by these objective criteria examined here, the Rehnquist Court's record appears to be as genuinely mixed as the competing views of its legacy indicate. The Court plainly was more “activist” than its predecessor courts in its willingness to invalidate federal statutes, and to do so in a surprising range of issue areas. It also, however, invalidated notably fewer state statutes than did those earlier courts, and overturned slightly fewer precedents. Moreover, while the Rehnquist Court's proactive use of judicial power did result in predominately conservative outcomes, that Court also used its power to generate numerous liberal outcomes, particularly in cases in which it invalidated state laws. This provides some support for the claim that the Rehnquist Court continued to engage in the type of liberal adjudication more commonly associated with its predecessor Courts, although, as discussed below, that support turns out to be more limited than it first appears.

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