Naming and Blaming: The Case of "The Rehnquist Court"

Abstract

Naming and Blaming:The Case of "The Rehnquist Court" Edward A. Purcell Jr. (bio) Nancy Maveety . Queen's Court: Judicial Power in the Rehnquist Era. Lawrence: University of Kansas Press, 2008. ix + 194 pp. Notes, bibliography, and index. $29.95. Using the names of chief justices to demarcate periods in the history of the United States Supreme Court is as common as it is misleading. The label "Warren Court" seems etched in stone, for example, even though the Court went through two, if not three, quite distinct phases between 1953 and 1969 when the eponymous Earl Warren was chief. The last phase, moreover, arguably continued for almost a decade after Warren left the bench, and might—at least after the early 1960s—have more accurately been termed the "Brennan Court." Applying the chief justice's name to the recently terminated "Rehnquist Court" is particularly inapt, Professor Nancy Maveety argues in her new book, Queen's Court, a title that readily captures her thesis. Seeking "to assign a definitive meaning to the 'Rehnquist Court'" and "identify its historical importance," Maveety concludes that the Court under Chief Justice William Rehnquist "should be remembered legitimately as Justice O'Connor's." Both its long-term significance and the "real difficulties—jurisprudential and systemic" that it created—flowed from the "judicial O'Connorism" that characterized its work (p. 4). A specialist in the Court's history and the author of Justice Sandra Day O'Connor: Strategist on the Supreme Court (1996), Maveety is well positioned to evaluate the contributions of the Court's first female member during her twenty-five-year tenure from 1981 to 2006. Few, of course, would dispute the author's general premise that O'Connor "sat, figuratively if not literally," at the center of the Rehnquist Court (p. 4). Indeed, her pivotal role has long been recognized. Edward Lazarus, who clerked for Justice Harry Blackmun in the late 1980s, concluded a decade later that the Court "remains, as it was in my day, a creature of Justices O'Connor and Kennedy." The two "swing" conservatives controlled. "In case after case," Lazarus explained, "these swing-vote justices write separate concurrences, usually modulating the conservative insurgency, [End Page 440] but always bending the Court and the law to their will."1 Subsequently, surveying O'Connor's tenure after her retirement, Jeffrey Toobin portrayed her position similarly if more dramatically. "The way to win a majority in the Rehnquist Court was to earn O'Connor's support," he wrote, "so her colleagues invariably came to her as supplicants."2 Thus, the importance of Maveety's book lies neither in its identification of O'Connor's pivotal position on the Rehnquist Court nor in its description of her "as a centrist conservative on a sharply divided and jurisprudentially polarized Supreme Court" (p. 3). Rather, its importance lies in its more specific argument that O'Connor used her key position not just to swing cases her way but also to reshape the Court's inner workings. Largely assuming, rather than examining, issues of political context, judicial values, and substantive doctrine, Maveety concentrates on the Court's evolving institutional norms and de facto decision-making process, and it is in those areas that she locates O'Connor's principal significance. O'Connor was "the crucial contributor to each of the several legacies of the Supreme Court during the Rehnquist era" she concludes, and the Rehnquist Court's primary legacy was its normative and behavioral acceptance of a distinctive "judicial O'Connorism" (p. 4, italics in original). Queen's Court builds its argument in a series of steps. Chapter one, based largely on the papers of Justice Harry Blackmun covering three early terms (1986, 1991, and 1993), argues that "individuated judicial behavior defined the Rehnquist Court" (p. 5). The chief ran a "nondeliberative conference" (p. 14) that fostered a norm of "judicial individualism" (p. 35) as well as a practice of informal bargaining in which the justices strove to pull together majority coalitions to support specific results in individual cases. "O'Connor and her colleagues," Maveety explains, "behaved as if the circulation of conditional join memos and concurrence drafts was the duty of all justices in their individual...