Post-Rehnquist II

Så bliver det altså med sikkerhed John Roberts, der efterfølger Rehnquist som amerikansk forbundshøjesteretspræsident–og noget kunne tyde på, at det bliver med lidt større tilslutning, end jeg forudså tidligere på ugen.  (Tilsyneladende har mange Demokratiske senatorer fra delstater, der ved valget sidste år overvejende stemte på Bush, pudsigt nok haft en tendens til at større præsidentens kandidat …)  Men hvordan kommer den post-Rehnquistske æra til at se ud for US Supreme Court?  Det skrev vi om rent personale mæssigt forleden, men hvad med politikken?

En af de største amerikanske retsfilosoffer af en klassisk-liberal orientering, Professor Randy Barnett fra Boston University (forfatter til bl.a. “The Structure of Liberty: Justice and the Rule of Law” og “Restoring the Lost Constitution: The Presumption of Liberty”), havde i forrige uge i Wall Street Journal en kronik om netop Rehnquist.  Højesteretspræsident Rehnquist var næppe helt en, som Barnett helt “delte paraply med”, men dog én som han adskillige gange havde professionelt med at gøre—når Barnett skulle procedere for US Supreme Court (hvilket han senest gjorde i foråret, hvor Barnett talte for staternes ret til at legalisere marijuana-brug, hvilket Rehnquist støttede).  Og Barnett kunne trods andre uenigheder lide den såkaldte “New Federalism”-doktrin, som Rehnquist i praksis formulerede:

“One day soon we may mourn the death of his legacy — the jurisprudence of the Rehnquist Court.

Even before becoming chief justice, often in lonely dissents, it was William Rehnquist who was most personally responsible for what is now called “the New Federalism” — the revival of the ideas that judiciary should protect the role of the states within the federal system and enforce the textual limits on the powers of Congress. Establishing the New Federalism took enormous effort and leadership by Rehnquist over many years. Now that legacy is in jeopardy.

At the founding, and for some 150 years thereafter, the limits on congressional power provided by the Constitution of 1789 — as modified by the Fourteenth Amendment — were enforced by the Supreme Court. According to the textual plan, Congress is, with few exceptions, confined to the express powers enumerated in Article One of the Constitution. While these express powers were understood as flexible, they were nonetheless limited. When the federal government was limited to its enumerated powers, the states were left to the exercise of their police powers, subject to the limitations imposed upon them after the Civil War by the Fourteenth Amendment.

The Founders’ plan was more or less intact until the 1930s, when President Roosevelt and the New Deal Congress enacted a massive expansion of federal power. By the 1940s, the textual scheme of limited federal powers was effectively swept away by a Supreme Court dominated by appointees of President Roosevelt. In a series of landmark decisions, such as Wickard v. Filburn in 1942, the New Deal Court replaced the Constitution’s textual scheme of limited federal power with a policy of judicial deference to any claim by Congress to regulate anything and everything with even a remote connection with the national economy.

By the early 1990s, even the requirement of a remote connection was giving way, as Congress began to regulate subjects that could only be described as “interstate commerce” by Lewis Carroll’s Humpty Dumpty, who asserted (in a rather scornful tone) that: “When I use a word, it means just what I choose it to mean — neither more nor less.” With no judiciary to provide a constitutional compass, Congress passed laws reaching activities such as possessing a gun near a school without even trying to show how the regulated activity had any conceivable connection with “commerce . . . among the several states.”

Barnett slår fast, at det var Rehnquist, der standsede denne udvikling, fordi han havde et “forfatningsmæssigt kompas”, der i hvert enkelt sag styrede ham i én overordnet retning.  Dette var tydeligt allerede fra en række sager, mens han var menig dommer, men det blev især klart da han blev højesteretspræsident:

“With Justice Rehnquist’s ascension to chief justice, the Rehnquist Court cabined Garcia’s laissez-faire approach toward Congressional power with a series of “Tenth Amendment” cases that aimed at protecting state sovereignty from federal interference in a variety of ways. I put Tenth Amendment in quotes because this jurisprudence was never grounded on the original meaning of the Tenth Amendment, which merely affirms that the Federal government is one of delegated powers, and that all powers not delegated are reserved to the states or to the people. With the post-New Deal judiciary interpreting the delegated powers so as to allow the Federal government to do virtually anything it wants, federal power had completely enveloped any “reserved” powers of states. Instead of directly holding Congress to the powers enumerated in the text, these earliest New Federalism cases attempted indirectly to preserve the underlying “principle” of federalism by carving out islands of state sovereignty in a sea of federal power.

Chief Justice Rehnquist understood this, of course. In 1995, he launched a direct attack on the source of the problem in the case of U.S. v. Lopez, which held unconstitutional the Gun Free School Zone Act because it exceeded the power of Congress to “regulate commerce . . . among the several states.” There he wrote, “We start with first principles. The Constitution creates a Federal Government of enumerated powers.” For the first time in 60 years, the Court found a federal statute to have exceeded the commerce power of Congress. Rehnquist’s opinion in Lopez sent shock waves through the legal academy. …

Together with the Tenth Amendment cases, Rehnquist’s opinions in Lopez and Morrison were the keystones of the New Federalism. Had he been able to marshal a consistent majority for the constitutional “first principles” these cases represented, the Rehnquist Court might have overseen a constitutional restoration as substantial as the constitutional demolition begun by the Roosevelt Court. But both decisions were 5-4, with the five more “conservative” justices in the majority and the four more “liberal” justices in strong dissent. The four adamant dissenters have not relented in their opposition and need only pick off one of the New Federalists to uphold the constitutionality of a claim of federal power.”

Og nu er Barnett nervøs for, at flertallet vil kunne skifte på et mere permanent vis—den forkerte vej:

“[In] this the final year of the Rehnquist Court there are signs that his legacy may not endure. In Gonzales v. Raich both principles of state sovereignty and of enumerated powers were put to the test. Rehnquist was one of only three justices who were willing to say that Congress cannot magically transform the noncommercial possession of homegrown marijuana into “interstate commerce.” The Chief joined the dissenting opinion written by Justice Sandra Day O’Connor.
Many who now lionize her w
hen discussing her replacement omit mentioning her stalwart support of the New Federalism so strongly advanced by her fellow Arizonian and Stanford classmate.

Sometime this fall, two of the five votes that made up the Lopez and Morrison majorities will have been replaced. Only Justice Clarence Thomas will be left from the three Raich dissenters. As the new chief justice (assuming he is confirmed), will John Roberts assume the role of his mentor William Rehnquist — for whom he clerked — and lead the Roberts Court to enforce the Constitution’s original plan of limited federal power? Will President Bush now look for a nominee to replace Justice O’Connor who is as committed to the New Federalism as she was? Given that so many of the New Federalism cases were 5-4, if either of the new justices adopts the mantra of “judicial deference” to congressional power, then Chief Justice Rehnquist’s death, along with Justice O’Connor’s retirement, may presage the second death of federalism. A judicial withdrawal from enforcing the original limits on the powers of Congress would undo the New Federalist legacy of William Rehnquist.

As the president now decides who next to nominate, he would uphold the Constitution by selecting a person with a firm and demonstrated commitment to the Rehnquist Court’s New Federalism legacy. Only such a choice would continue the movement to restore the “first principles” of constitutionally limited government that William Rehnquist affirmed so eloquently. One can hardly imagine a sadder end to the tenure of William Rehnquist than that his most prized and important contribution to constitutional law is aborted by a conservative Republican president and a Republican-controlled Senate.”

En anden prominent amerikansk klassisk-liberal, Clint Bolick—grundlæggeren af den indflydelsesrige og nyttige organisation Institute for Justice, der hjælper borger i sager mod statsmagten, når deres ejendomsret o.l. bliver krænket—deler Barnetts ængstelser.  Han gik i sin eulogi til Rehnquist så langt som til at forudse, at Bushs udnævnelser vil komme til at repræsentere et markant ryk til “venstre”:

“To say that an era has ended is a huge understatement.
The passing of “the Chief,” as William Rehnquist affectionately was known by everyone in the U.S. Supreme Court’s circle, coupled with the retirement of Justice Sandra Day O’Connor, leaves the court without sure leadership for the first time in a generation.
Oddly, depending on President Bush’s choice to replace him, the court could be poised for a lurch to the left, rather than the right turn predicted by left-leaning special-interest groups. …

When Rehnquist joined the court in 1972, it was still in the throes of Warren court liberalism, routinely advancing causes that could not be won in the legislative arena. Though the court as a whole never fully embraced Rehnquist’s conservatism, his influence moved the court toward the center.

For instance, under Rehnquist’s stewardship, the court stopped routinely overruling criminal convictions, but retained the Miranda ruling that protects against abusive police interrogations. It strengthened state autonomy, but never overturned Roe vs. Wade. It struck down most racial preferences, but left the door open to preferences in college admissions.

As chief, Rehnquist was adroit in moderating his own views to bring in colleagues, and often appeared to switch to the winning side in order to exercise the chief’s prerogative to assign writing of key decisions to himself so as to narrow their scope.

One area of Rehnquist’s enormous influence was school choice.
In the 1960s and ’70s, the court had broadly interpreted the First Amendment’s prohibition against establishment of religion to embrace outright hostility to religion.

In 1983, Rehnquist cobbled together a 5-4 majority in Mueller vs. Allen, charting a more moderate course in upholding tuition tax credits for K-12 education, emphasizing that the choice of where to spend the education dollars was decided by parents, not the state.
That same slender majority held 19 years later in Zelman vs. Simmons-Harris, in which the court, in a landmark decision written by Rehnquist, upheld the Cleveland school-voucher program. For Rehnquist, it was a matter of state autonomy and an interpretation of the First Amendment true to its original intent.

For millions of children …, it meant the promise of precious educational opportunities.

Rehnquist’s combination of strong conservative convictions and political savvy make him a tough act to follow. …  For two decades, the court has been narrowly divided, usually (though less frequently lately) siding with individual liberty over state power, precisely the role the framers intended the federal judiciary to play. Judge John Roberts, the nominee to fill Justice O’Connor’s position, is truly an unknown quantity. If Bush nominates a Rehnquist replacement who is less committed to conservative principles than his predecessor, it could have the effect of turning the court to the left.”

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