Rehnquist Courts Research Articles

American indians in court: the Burger and Rehnquist years

The Supreme Court and individual justices’ treatment of American Indian interests has generated relatively little scholarly attention. To fill this void in the extant literature, this study seeks to examine how American Indian interests fared before the Supreme Court of the United States during the Burger and Rehnquist Courts (1969–1992 October terms) and attempts to discern the factors influencing their treatment. The findings indicate that while American Indian interests won 48% of their cases, the Burger Court was much more sympathetic than the Rehnquist Court to the plight of this politically disadvantaged group. The error correcting strategy, the ideological proclivities of the justices, and the issue area being litigated were all influential explanatory variables. Interestingly, the Solicitor General’s Office had an adverse influence when it opposed American Indian interests as a direct or third party, but had little impact when supporting their interests.

Norm Violation by the Lower Courts in the Treatment of Supreme Court Precedent: A Research Framework

The U.S. Supreme Court rarely overrules its own decisions, overturning fewer than three precedents per term (Brenner and Spaeth, 1995). For the most part, the Court acts instead to preserve the consistency and continuity of the law. However, there are times when the Court formally alters precedent and, in so doing, affirms the decision of a lower court. That is, the Court upholds a lower-court ruling that conflicts with, or even ignores, its past decisions, overruling itself in the process. Such a situation violates two fundamental legal norms. First, as subordinates in the judicial hierarchy, lower-court judges are expected to abide by the decisions of their superior, the Supreme Court, and second, according to the doctrine of stare decisis, the Supreme Court has a duty to follow its own precedents. In this article, we conduct a descriptive analysis of the over-ruling decisions of the Warren, Burger, and Rehnquist courts that affirmed lower-court rulings. A number of questions are relevant. Under what circumstances do lower courts perceive that a marked deviation from Supreme Court precedent is legally and politically safe? Is there evidence that the lower courts attempt to anticipate the high court’s reaction to an alteration in precedent? What role does ideology play in the lower courts’ rulings? We address these questions as we examine these unique instances in which lower courts appear to initiate the alteration of Supreme Court precedent.

THE REHNQUIST COURT, CRIMINAL PROCESS, AND THE QUEST FOR EMERGING COALITIONS

Associate Justice Sandra Day O'Connor recently observed that, “It is always true that when we lose a justice and get a new one, we have a new court” (Biskupic 1994a, 33). In light of the number of new justices added to the Supreme Court in the past few years, it may be futile to attempt generalizations concerning the ideological criminal procedure trends of “a” Rehnquist Court, and more informative to view the decisions from public policy and judicial behavior perspectives. Focusing on the criminal justice area, this article provides (1) a comparative overview of decisionmaking characteristics of the Burger and Rehnquist Courts, and (2) an analysis of Rehnquist Court decisions, highlighting specific substantive areas of conflict and noting emerging judicial coalitions as gleaned from close‐margin cases decided during the 1986–1993 Terms. If the labels “liberal” and “conservative” no longer have real value in describing distinct ideologies of blocs of sitting justices, then political scientists are urged to evaluate the Rehnquist Court as nine independent political actors in temporary and shifting coalitions formed in response to specific, factbound problems.

THE REHNQUIST COURT AND JUDICIAL ACTIVISM: THE DEVELOPMENT OF CONSERVATIVE HABEAS CORPUS POLICY

This paper links the selection of Supreme Court justices to change in federal habeas corpus policy. This change, sought by every Republican president since Richard Nixon, is strongly conservative. It restricts access to federal court by state prisoners seeking redress for alleged violation of Constitutional rights. This research analyzes the judicial selection process after Earl Warren's retirement as Chief Justice. It compares decisions of the Warren, Burger and Rehnquist Courts on habeas corpus questions using descriptive quantitative analysis and qualitative doctrinal analysis. The Burger Court was unsuccessful in bringing about conservative change, but the Rehnquist Court, by the early 1990s, had dramatically accomplished its goals. The Rehnquist Court developed much stricter standards for obtaining review in the areas of the abuse of the writ in successor petitions, procedural default and retroactivity of new constitutional rules. The Rehnquist Court's conservative policy was judicially activist in that it overturned precedent and used statutory interpretation to bring about policies rejected by Congress.

Federal Jurisdiction and the Enforcement of Federal Rights: Can Congress Bring Back the Warren Era?

The Warren Court's history of expanding constitutional rights is well known. Less familiar are the many twists of jurisdictional doctrine that accompanied its rights-expanding agenda: the Warren Court supported its innovations in constitutional rights with rules that increased access to the federal courts. Similarly, the Burger and Rehnquist Courts have taken a much more constrained view of constitutional rights, and, less noticeably, they have cut off many of the jurisdictional paths opened by the Warren Court. Those who try to keep track of changes in constitutional law but do not follow developments in the notoriously hard-to-follow field of jurisdiction can never construct a complete picture of the Court's work. Yet what does all this mean? Why is there any connection between the scope of enforceable rights and which courts enforce those rights? Courts are courts, one might think. Whether they are part of the national government or the state governments, they are all bound by the U.S. Constitution to enforce federal law and to regard federal law as hierarchically superior to any other law or policy. One might fairly wonder why we have federal courts at all. There is no obvious impediment to the state courts' handling all the judicial work that might arise in the nation. One might contend that we need some institution capable of making a decision that will bind all courts, but that argument refers only to the need for a Supreme Court. It

Explaining Congressional Attempts to Reverse Supreme Court Decisions

This research examines what factors are likely to cause the Congress to attempt to reverse Supreme Court decisions that hold federal laws unconstitutional during the Warren, Burger, and early years of the Rehnquist courts. First, we outline a general theory of congressional motivation to reverse Supreme Court decisions that looks to both electoral considerations and the need to safeguard congressional power as the primary motivating factors. Using a data set consisting of 65 Court decisions that reversed all or part of some federal statute(s), we test our hypotheses using a probit model to predict when the Congress will take counteraction. We find that the electoral considerations of public opinion and interest group pressure are likely to lead to a congressional response, while the institutional considerations of court unanimity and the age of the legislation struck down are also important. The congress, however, is most likely not to take any decision reversal action.

Symbolic versus Policy Representation on the U.S. Supreme Court

Presidents often pick Supreme Court justices at least in part for their symbolic appeal to geographic, sex, racial, religious, or partisan groups. Whether these symbolic appointees actually represent group attitudes particularly well during their tenure on the Court, however, has not yet been examined. Evidence from 107 rulings during the Warren, Burger, and Rehnquist Courts indicates that most symbolic appointees to the Courts do not vote for their own group's attitudes on specific Court cases any more often than do their remaining brethren. Symbolic appointees have not typically been faithful delegates.

U.S. Supreme Court Decision-Making and the Free Exercise Clause

The U.S. Supreme Court, at various times, has changed the constitutional tests it claimed to use in order to settle free exercise of religion disputes. These changes in official doctrine and the manner in which many cases have been decided have left the Supreme Court open to much criticism from legal scholars. This study differs substantially from previous work in this area. It uses a fact-attitudinal model to analyze the cases from the Warren, Burger, and Rehnquist Courts. Its findings indicate that these decisions are, generally, explainable and predictable.

Rehnquist and State Courts: Federalism Revisited

Rehnquist and State Courts: Federalism Revisited

Rehnquist and State Courts: Federalism Revisited

Rehnquist and State Courts: Federalism Revisited

Ideology, Status, and The Differential Success of Direct Parties Before the Supreme Court

A substantial literature on lower federal courts and state courts suggests that the “haves” usually come out ahead in litigation because they possess superior resources for it and they reap advantages from their repeat player status. We investigate the success of 10 categories of litigants before the Warren, Burger, and Rehnquist Courts to determine whether the resources or experience of litigants has effects on Supreme Court outcomes paralleling those found in the courts below. While different categories of litigants are found to have very different rates of success, those differences do not consistently favor litigants with greater resources. A time series analysis of the success of different categories of litigants over the 36 years studied suggests that the changing ideological complexion of the Court has a greater impact on the success of litigants than differences among litigants in resources and experience.

The NAACP's Legal Strategy against Segregated Education, 1925-1950.

The NAACP's fight against segregated education - the first public interest litigation campaign - culminated in the 1954 Brown decision. While touching on the general social, political, and economic climate in which the NAACP acted, Mark V. Tushnet emphasizes the internal workings of the organization as revealed in its own documents. He argues that the dedication and the political and legal skills of staff members such as Walter White, Charles Hamilton Houston, and Thurgood Marshall were responsible for the ultimate success of public interest law. This edition contains a new epilogue by the author that addresses general questions of litigation strategy, the persistent question of whether the Brown decision mattered, and the legacy of Brown through the Burger and Rehnquist courts.