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The Rehnquist Court's Pragmatic Approach to Civil Rights


Nelson Lund


George Mason University School of Law


Northwestern University Law Review, Vol. 99, No. 1, pp. 249-288, 2004
George Mason Law & Economics Research Paper No. 04-26

Abstract:     
This contribution to Northwestern Law School's symposium on the Rehnquist Court focuses on cases involving laws meant to limit or forbid discrimination on the basis of relatively fixed characteristics like race, sex, and disability. Within this field, I find a fairly consistent pattern of decisions since 1986, when William H. Rehnquist became Chief Justice, and I also see a fairly obvious explanation. Throughout this period, Justice Sandra Day O'Connor has frequently been the swing voter in the most important cases. She has consistently sought to move the law toward what she sees as a practical balance among competing goals reflected in the enactments the Court is called on to interpret, and her particular pragmatic vision has largely dominated the Court's decisions throughout this period.

A large number of antidiscrimination laws (both statutes and constitutional provisions) have been enacted, and these laws have generated a very large number of interpretive judicial decisions. Space constraints in this symposium preclude anything like a comprehensive survey. Accordingly, I limit myself to three lines of case law, which I believe are representative of the Rehnquist Court's approach to antidiscrimination law, and which illuminate Justice O'Connor's preeminent role in fashioning that approach.

Part I looks at the Court's decisions interpreting the Americans with Disabilities Act (ADA). Enacted in 1990, this is a mature statute in the sense that Congress and the contending interest groups that took an interest in its drafting had access to a great deal of information about how similar statutes had operated and been interpreted in the past. One should therefore expect the ADA to contain relatively few examples of language with inadvertent implications: to the extent that this statute contains language that is vague or ambiguous, or startling in its apparent effects, it is reasonable to presume that this was deliberately done or the result of deliberate compromises. The ADA was also a new statute, which means that the Rehnquist Court has been unconstrained by prior interpretive decisions that might have come out differently if this Court were considering them as an original matter. Together, these two features of the ADA suggest that we will get to see the Rehnquist Court operating in a relatively pure interpretive mode.

Part II examines cases dealing with the related issues of disparate impact doctrine and affirmative action under Title VII of the Civil Rights Act of 1964. These cases illustrate the Rehnquist Court's approach to managing tensions between interpretive fidelity and the precedential effect of highly questionable decisions inherited from the Burger Court.

Part III considers the application of equal protection doctrine to affirmative action programs. Here, in contrast to what we will see in the ADA and Title VII cases, the Rehnquist Court for a long time followed a tentative and wavering course. Last year, however, saw a bold and decisive ruling in Grutter v. Bollinger. With that decision, the nature of the Rehnquist Court's pragmatic approach to civil rights stands fully revealed.

Number of Pages in PDF File: 41

Keywords: civil rights, judicial pragmatism

JEL Classification: K19, K39

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Date posted: June 29, 2004 ; Last revised: December 4, 2007

Suggested Citation

Lund, Nelson, The Rehnquist Court's Pragmatic Approach to Civil Rights. Northwestern University Law Review, Vol. 99, No. 1, pp. 249-288, 2004; George Mason Law & Economics Research Paper No. 04-26. Available at SSRN: http://ssrn.com/abstract=559982

Contact Information

Nelson Robert Lund (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8045 (Phone)
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