POLITICS JULY 10, 2000
In the final days of a remarkable term, the Rehnquist Court reaffirmed three of the most controversial decisions of the Warren era. The justices held that the Miranda warnings are constitutionally required, struck down student-led prayer at a high school football game, and invalidated state bans on partial-birth abortion. It may seem ironic that the Republican justices, who were appointed to overturn the pillars of Warrenism, are accepting and extending them. But it is less ironic than it seems--because the defining characteristic of this Court, like that one, is hubris. Both combine haughty declarations of judicial supremacy with contempt for the competing views of the political branches. The Rehnquist Court differs from the Warren Court only in that it prefers to follow conventional opinion rather than challenge it. Today, unlike the 1960s and '70s, when they were first promulgated, Miranda, Roe v. Wade, and (more grudgingly) the school-prayer decisions are tolerated if not embraced by a majority of Americans.
Because its decisions don't provoke public outrage, the Rehnquist Court's arrogance may be harder to discern. But it is there in spades: indeed, the Court's passive-aggressive attitude toward popular opinion is part of its strategic concern for its own institutional prerogatives above all. Rehnquist's achievement as chief justice has been to reconcile his liberal and conservative colleagues to the aggrandizement of the Supreme Court's power at the expense of Congress and the state legislatures. In the process, he and his colleagues have turned themselves into the mirror images of the Warren Court justices they spent their early careers attacking.
The seven-to-two decision reaffirming Miranda offers a stark example of the Rehnquist Court's preference for broad rather than narrow pronouncements. And it undermines the claim that this Court practices judicial minimalism-- that is, a preference for saying as little as possible. As an associate justice in the '70s, Rehnquist himself insisted that the Miranda warnings were not compelled by the Constitution. But, writing for the Court last week in the Dickerson case, Rehnquist not only repudiated his former criticisms; he refused to acknowledge he had changed his mind. (This distaste for confessing error is typical; the Rehnquist Court has a habit of pretending even the most misguided Supreme Court precedents are infallible, as in Casey, when a plurality of justices held their noses and reaffirmed Roe without revealing whether or not they thought it was correctly decided.) In Dickerson, Rehnquist imperiously asserted the Court's exclusive authority to interpret the Constitution in the face of contradictory congressional judgments. " Congress may not legislatively supersede our decisions interpreting and applying the Constitution," he intoned.
A more modest decision upholding Miranda might have insisted that the Constitution requires all suspects to be informed of their right to remain silent, because an unwarned suspect might mistakenly believe he could be punished for his silence. But the ruling could have gone on to invite Congress to come up with alternative and equally effective ways of informing suspects of that right--without demanding that police recite the magic words. Instead of encouraging a constitutional dialogue with Congress, Rehnquist swatted Congress away like a pesky fly.
The Sante Fe case, which struck down a Texas ordinance authorizing student- led prayer before a high school football game, also probably reached the correct result, but, in the process, it resorted to unnecessarily sweeping reasoning that aggrandized judicial power. The Texas ordinance authorized students to vote on whether or not to include "a statement or invocation" in the pregame ceremonies; if they voted yes, a second vote would elect a student from a list of volunteers to deliver the statement or invocation. The central, and difficult, question in the Sante Fe case was whether students elected to deliver an invocation under this policy were engaging in private religious speech on public property, which the Constitution permits, or school-sponsored religious speech, which it forbids. The policy required that "any message and/or invocation delivered by a student must be nonsectarian and nonproselytizing," and the Court might simply have held that by censoring and monitoring the prayers, the school impermissibly dictated and took responsibility for their content.
Writing for a six-to-three majority, however, Justice John Paul Stevens made a broader argument. He held that the pregame speech could not be considered a public forum open to all students on equal terms: by requiring students to hold a majority vote on whether or not they wanted to hear a prayer or statement and then electing a student to deliver it, the school inevitably stifled minority viewpoints. But this isn't entirely convincing: if the students had elected an "inspirational orator" to speak about whatever he or she liked before every game, without any advance monitoring by school officials or notice to the student body, it's hard to argue that it would be unconstitutional if some of the orators chose to pray.
Perhaps aware of the flimsiness of his argument, Stevens switched gears and invoked the most extreme precedents from the era of '70s church/state separationism. He held that the pregame policy was unconstitutional because its history suggested that it was based on a "sham" rather than a "sincere" secular purpose. If the majority chose one student to pray over the public- address system, Stevens continued, other students might have to endure what he called "a personally offensive religious ritual." This reasoning is treacherous. As Stephen Carter of Yale Law School observes, some evangelical Christians regard the truth of Scripture not as a religious belief but as the divinely revealed word of God. If the speech of the majority may be restricted to avoid giving offense to the minority, these Christians might object to teaching evolution on the grounds that it offends their belief in creationism. By focusing on the law's predominant purpose rather than its actual effects, Stevens called into question moments of silence and other genuinely neutral opportunities for private rather than public religious expression.
Then there is abortion. In striking down Nebraska's partial-birth abortion law, a five-to-four majority held that the law violated the rights recognized in Roe v. Wade and reaffirmed in Casey v. Planned Parenthood: namely, the right to choose abortion before fetal viability without undue interference from the state. Because the Nebraska law was so vaguely drafted that it could be construed to forbid the most common method of second-trimester abortion and because it contained no exception for a woman's health, the Court plausibly struck it down. But it is surely significant that not a single state has passed the abortion restriction that the Casey court recognized as constitutional--a ban on third-trimester abortions that contains an exception for the woman's health. This suggests how dramatically the Roe and Casey decisions continue to polarize the abortion debate. By reaffirming Roe without justifying its reasoning, the Casey decision galvanized pro-life activists who seem less concerned with saving the lives of viable fetuses than with scoring political points by passing symbolic but emotionally inflammatory restrictions on abortion--and then waiting for judges to strike them down.
The current judicial overconfidence is hardly limited to the moderate and liberal justices. In striking down all or part of 25 federal laws since 1995, many in the name of federalism, conservative majorities on the Rehnquist Court have displayed a similar contempt for legislative prerogatives. When it invalidated the Violence Against Women Act, for instance, the five-to-four conservative majority refused to defer to extensive congressional findings that violence against women affected interstate commerce. When the Court held that the Eleventh Amendment bars Congress from authorizing age-discrimination suits against the states, the same majority ignored constitutional text and history. In the federalism decisions, Justices Antonin Scalia and Clarence Thomas displayed the same overconfidence that, in the Miranda decisions, they rightly assailed as "the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."
What explains the transformation of Rehnquist and his colleagues from advocates of judicial restraint to avatars of judicial supremacy? Perhaps the polarizing rhetoric of the campaign against Warrenism caused both sides to exaggerate their positions and to forget the most important ingredient of judicial restraint--a willingness to acknowledge uncertainty. Perhaps the fact that Congress and the president are divided emboldens the Court to flex its muscles--secure, like the Cowardly Lion, that its feints of strength will not be challenged. Perhaps the justices are so eager for consensus in controversial cases that they are papering over their differences by adopting simplistic reasons rather than grappling with complexity. Regardless of the explanation, the outcome is clear: resentment from the other branches, unconvincing law, and the unfortunate resurrection of a judicial style that liberal and conservative defenders of judicial humility had hoped was buried for good.