Morality Imposed: The Rehnquist Court and Liberty in America
Stephen E. Gottlieb
Albany Law School
November 1, 2000
Stephen E. Gottlieb, MORALITY IMPOSED: THE REHNQUIST COURT AND LIBERTY IN AMERICA, New York University Press, 2000
The book examines the philosophical gulf among the members of the Court and the differing brands of liberal and conservative philosophies to which each of the justices subscribe. It is based on the conclusion that a single liberal-conservative axis is not an adequate description of the divisions on the Court.
The Court until recently was dominated by varieties of functionalists trying to improve society. Utilitarians and liberals, despite important disagreements among themselves, nevertheless share an essential functional or goal driven outlook. Their objective is a freer or happier society and they assume that where the Constitution is ambiguous it should be interpreted in a manner consistent with that premise. Utilitarian, functional, cost-benefit modes of thought are so common that the philosophical assumptions of functionalists are often seen as merely pragmatic rather than as structured modes of thought.
The Rehnquist Court shows little concern for goals and focuses instead on a variety of non-instrumental moral judgments. The conservative block has rejected two basic principles of the Anglo-American tradition: the principle that law should be guided by the objective of doing no harm and the principle of respect for individual moral autonomy where harm to others is not at stake.
The book amplifies the implications of those choices with studies of each of the nine justices on the Court. Chapter One provides background on the justices for the lay reader. Chapter Two opens the discussion of the central elements of this book, describing the gulf that separates the members of the Court's liberal and conservative wings. Chapters Three through Five explore the conservative block and the divergence between the Court's right wing and its more centrist conservatives. Chapters Six through Eight explore the more liberal justices, including the contrasts among them and the conservative elements in the thinking of the more liberal justices. Chapter Nine takes a look at Justice Souter. The final chapter returns to the central conflict among the justices.
Keywords: Constitution, elections, equality, discrimination, jurisprudence, interpretation, voting, Supreme Court, William Rehnquist, Justice John Paul Stevens, Justice Sandra Day O'Connor, Scalia, Justice Anthony Kennedy, Souter, Justice Clarence Thomas, Justice Ruth Ginsburg, Justice Stephen BreyerAccepted Paper Series
Date posted: April 9, 2009 ; Last revised: October 8, 2009
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