Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush v. Gore?

Georgetown Law Journal, Jun 2006 by Eastman, John C

I. INTRODUCTION

The premise of the "hot topics" panel1 at which this series of Articles was first presented was that the Rehnquist Court had, in 2004, retreated from its bolder conservatism, asserting itself on the side of individual liberty against a federal government that had grown increasingly cavalier toward civil liberties during three years of a war on terror and two decades of a renewed war on crime. Proof of the premise was said to be found in a pair of Sixth Amendment cases, Crawford v. Washington2 and Blakely v. Washington,3 and also in the trilogy of terrorism cases, Rumsfeld v. Padilla,4 Humdi v. Rumsfeld5 and Raaul v. Bush? Professor Erwin Chemerinsky argued that these cases collectively represented a repudiation of the Rehnquist Court's conservative activism phase and a return to the more moderate, deferential jurisprudence of the early years of the Rehnquist Court.7 Professor David Cole went even further, contending that the Court's new outlook in defense of liberty was designed to rehabilitate the Court after its "lawless" decision in Bush v. Gore.8

With all due respect to Professor Joseph Kennedy, who organized and moderated a terrific panel, the premise of the panel was flawed, based on a stereotypical yet false view of the Rehnquist Court. The legacy of the Rehnquist Court-and by that I mean the five-Justice voting block most frequently voting together in the landmark cases that define the legacy: Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas-was never about preferring "law and order" outcomes over civil liberties outcomes or about siding with the government at the expense of individual criminal defendants. Rather, the Court's legacy-and it was only modestly and rather inconsistently successful-was the revival of an originalist constitutionalism that took seriously the limits on governmental power actually detailed in the text of the Constitution itself, while also preserving the textual commitment to separation of powers and federalism. With this legacy in mind, I argue below in Part II of this Article that the Sixth Amendment cases-or more precisely, the position in those cases of Justices Scalia and Thomas, the Court's two most devoted originalists-are perfectly consistent with the Rehnquist Court's broader devotion to principles of constitutionalism. In Part HI, I take up the trilogy of terrorism cases and argue that, contrary to popular understanding, those cases actually reflect a proper deference to the Executive Branch in the exercise of its warmaking powers. Finally, I take up in Part IV what I consider to be one of the most interesting aspects of this group of cases: Justice Scalia's apparent invitation in the Hamdi case to revisit the current understanding of birthright citizenship, which has long ignored a crucial component of the Constitution's text.

II. SIXTH AMENDMENT CASES

The Rehnquist Court has frequently been characterized as a "law and order" Court, accused of rolling back the clock on the constitutional protections afforded to criminal defendants by the Warren Court in favor of greater deference to government.9 Seen in this light, the decisions in Crawford and Blakely, which sided with criminal defendants rather than prosecutors, can be viewed as a repudiation of the Rehnquist Court's legacy. But I believe this view of the Rehnquist Court's legacy is far too simplistic. The principled objection to the activism of the Warren Court was not that it favored criminal defendants over prosecutors, but that it did so without textual support in the Constitution, thereby substituting its judgment for that of the people. Seen in this more nuanced, but I believe more accurate, light, Crawford and Blakely simply cannot be considered uncharacteristic decisions by those who understood the true, constitutionalist legacy of the Rehnquist Court. Both cases represent a fairly faithful adherence to the Constitution's text. It should therefore come as no surprise that the Court's two staunchest devotees to the constitutional revival enterprise-Justice Scalia with his devotion to constitutional textualism and Justice Thomas with his nearly parallel devotion to constitutional principle-were in the majority, following the path commanded by the actual text of the Constitution rather than ruling in favor of some supposed "law and order'/anticriminal-defendant predisposition. If there is a surprise in the line-up of this case on the "embarrassment" theory propounded by Professor David Cole, it is that Justices Scalia and Thomas were joined not by Chief Justice Rehnquist and Justices O'Connor and Kennedy, but by Justices Stevens, Souter, and Ginsburg, who are not known for their devotion to the originalism enterprise.10 If these cases were outcome-driven by Justices embarrassed by the decision in Bush v. Gore or the supposed overreaches of the Bush Administration's war on terror, one would have expected to see Justices O'Connor and Kennedy in the majority rather than in dissent. Justices Scalia and Thomas, who were in the majority, have a reputation of priding themselves for not being swayed by such extrajudicial concerns. Thus, something else must have been driving their decision-perhaps even the text of the Constitution itself.