Activism and Restraint on the Rehnquist Court

This essay explains a tension on the contemporary Supreme Court that has been widely noted but not well understood. Though constitutional conservatives have long advocated judicial restraint, the Rehnquist Court has exercised its own power quite actively, going so far as to enter the "political thicket" of the 2000 presidential election. The complex pattern of conservative influence on the modern Court cannot be explained by reference to either legal or partisan factors in isolation, but only by the interaction of such factors over time. While many scholars have noted that the Court is both a legal and a political institution and that we need to understand it as such, I seek to sharpen our understanding of this dynamic by drawing on several key concepts from the literature on political development. In particular, historical institutionalist scholars have recently highlighted the importance of "conjunctures of separately determined processes" in shaping patterns of political order and change-a useful rubric for understanding the interaction between the post-New Deal entrenchment of rights-based constitutionalism and the post-1968 conservative realignment in American politics. In short, modern conservatives have sought both to abandon liberal constitutional rights and to create new conservative rights. Given the entrenchment of rights-based constitutionalism-and the path-dependent nature of constitutional development-they have been more successful at the latter

Constitutionalism · Democracy · Political science · Politics · Power (physics · Presidential system · Sociology · Supreme court · American Constitutional Law and Politics · Judicial and Constitutional Studies · Law · Legal and Constitutional Studies

• Birth Order, Preferences, and Norms on the U.S. Supreme Court

  Open Access•Kevin T Mcguire•Law & Society Review•2015

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