Saturday, May 5, 2007

The Rehnquist Court by Herman Schwartz

The State’s Right Assault on Federal Authority:

The five conservative justices Rehnquist, O'Connor, Scalia, Thomas and Kennedy show a strong adherence to states rights in theory, such as when it comes to Ronald Regan’s attack on the New Deal and other efforts to help ordinary Americans. However, when it came to Bush v. Gore these ideals were abandoned.

1. The court has struck down federal legislations
a. Federal government passed Child Labor Act, which was struck down in 1918 and again four years later when the federal government tried again. The federal government passed this law because states were unable to deal with this problem.
b. The New Deal
1. resulted in a large transfer of power to the federal branch with the many federal programs and agencies that were created.
2. enraged conservatives due to higher taxes, bigger government, and redistribution of wealth. the five member conservative majority struck down his policies for stepping on states rights
3. However conservative justices started to leave the court and the commerce clause and the post- Civil war Fourteenth Amendment were applied to justify New Deal policies.

2. Rehnquist takes office 1972
a. raised in a conservative family
1. and as a clerk a strong supporter of separate but equal doctrine. However, he denied these beliefs even though there is considerable proof showing this.
2. “It is about time the court faced the fact that white people in the south don’t like the colored people; the Constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the court as a sociological watchdog to rear up every time private discrimination raised its admittedly ugly head.”
3. Upholds states rights in cases- National League of Cities v. Usery

3. 1991- 5 conservative justice majority: Thomas, Rehnquist, Kennedy, O’Connor, and Scalia.
a. delivered rulings that struck down federal gov’t from requiring that state officials implement federal law.
b. Struck down cases involving the commerce clause:
1. U.S v. Lopez- struck down federal law criminalizing possession of guns in a schools zone. Court struck it down because there was no economic transaction and there was no effect on interstate travel.

4. Broadening the Scope of the Eleventh amendment:
a. the court has developed a stated sovereignty doctrine where it allows states to prevent money damage suits against itself, even by its own citizens in state courts. This was never approved by the congress or written in the constitution.
1. Cases showing this: City of Boerne v. Flores and Employment Division v. Smith

5. The Roles, Rights, and Responsibilities of the Executive Branch:
a. The supreme court has made increasingly difficult for citizens to challenge federal authority
1. In the freedom of Information Act the court is supposed to balance privacy rights against the public’s rights. However, the court has sided with privacy rights above the public’s rights.
2. The court has given considerable authority to businesses to sue complaining about overregulation. And it has held that the government should not be favored in these lawsuits.
3. The court has sided with the business when states try to apply more stringent policies than the federal government on businesses.


A. Vick said...

I actually fear for the law now that the court is decidedly conservative. I think this will seriously endanger many freedoms that we have eventually lead to precedents usually thought of being set in stone being overturned. Althought abortion rights aren't one of them, the mere fact that it was possibly being discussed as being reviewed by the court was enought to scare Women's Rights Groups into action. Whatever happened to the idea that Justice is blind? I feel as though with this version of the Supreme Court justice can not only see, but it's seeing in HD plasma screen color :)

Anonymous said...

The Supreme Court I think is not conservative or liberal. I remember something Prof. Davis said to me the first day of class that will always stick with me even in law school. He said you have to remember that even judges are politicians. Human bias is in everything we do as well as human competition. Bill Maher is popular because he appeals to liberal, agnostic, and pro-choicers(like myself). Rush Limbaugh is popular because he appeals to conservative, christian, bring back the south and segregation, and pro lifers. Competition between both sides put the Courts in the position its in. When you do not choose people who keep an open mind or make judgements based on the facts and not on self interests.

A. Vick said...

True, the court is not supposed to be conservative nor liberal per se, but you can clearly see that with the addition of Alito and Roberts that the court is heavily leaning towards conservative views in their decisions. The law should be free of all things except reason and mercy. That is the only way it can applied justly. Not by bipartisan politics nor our own flaws as human beings.

Anglestani said...

Conservative (Republicans) are bad? Liberals (Democrats) are good? Ha!

Do any of you know the Democrats' political stance during the Civil War? It was something along the lines of...oh wait, I forgot, they were too busy committing treason!

Anglestani said...

Okay, that was a joke.

But seriously, the law doesn't occur in a vacuum, "The law should be free of all things except reason and mercy." And really a large part of it depends on human bias, and that's the way it should be since human bias generally reflects what is pertinent at the time.

I mean let's face it, the Supreme Court's so-called "precedents" are nothing but. The number of changes the Court has made in the "interpretation" of the Consitution (laissez-faire, federalism, etc), is probably second only to the interpretaiton of the Bible. Nothing is absolute, and precendents merely reflect an era's rough policy directive.

Brock said...

Anglestani just did a Limbaugh and made what is called a "grandstanding" statement. No relivance to anything in the discussion just something to draw attention to what he has written with no chance of rebuttal.

Anglestani said...

"No relivance to anything in the discussion just something to draw attention to what he has written with no chance of rebuttal."

You know Brock, this reminds me of propaghandi's ingenious reference to the British Consitution, an document, which of course, does not exist.

I find it hard to see how it is "irrelevant" since a. vick is obviously convinced anything conservative will threaten our freedoms, while anonymous has a what I would call Utopian notion of the "ideal" Supreme Court. I was simply offereing my counter to these perspectives.

A. Vick said...

I'm not saying that everything conservative is necessarily bad. What I am saying is that this particular courts conservative views are dangerous in that they are more right wing than previous conservative tenures of the Supreme Court. I believe these conservative justices are willing to go even further now that Roberts is in charge. Rehnquist, although conservative was able to keep both liberal and conservative ideals in check and I don't believe that Roberts is capable of doing that kind of balancing act as a chief justice.

Anonymous said...

The conservative views are just as dangerous as liberal ones. Just because you believe that they things conservatives stand for are not right, does not make it bad. Conservatives are just as scared and annoyed and pissed off about cases like Roe. There is nothing wrong with the court being conservative - just like there is nothing wrong with the court being liberal.