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Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush V. Gore?

17 Pages Posted: 13 Jun 2006  

John C. Eastman

Chapman University, The Dale E. Fowler School of Law; Claremont Institute Center for Constitutional Jurisprudence


The premise of the "hot topics" panel at the 2005 AALS convention was that the Rehnquist Court had in 2004 retreated from its bolder conservatism, asserting itself on the side of individual liberty against a federal government that had grown increasingly cavalier toward civil liberties during three years of a war on terror and two decades of a renewed war on crime. Proof of the premise was said to be found in a pair of Sixth Amendment cases, Crawford v. Washington and Blakely v. Washington, and also in the trilogy of terrorism cases, Rumsfeld v. Padilla, Hamdi v. Rumsfeld, and Rasul v. Bush.

This article argues that the premise of the panel was flawed, based as it was on a stereotypical yet false view of the Rehnquist Court. The Rehnquist Court's legacy was never about preferring law and order outcomes over civil liberties outcomes, or about siding with the government at the expense of individual criminal defendants. Rather, the Court's legacy - and it was only modestly and rather inconsistently successful in this - was the revival of an originalist constitutionalism that took seriously the limits on governmental power actually detailed in the text of the Constitution itself, while also preserving the textual commitment to separation of powers and federalism.

With this legacy in mind, I contend in Part II of the Article that the Sixth Amendment cases - or more precisely, the position in those cases of Justices Scalia and Thomas, the Court's two most devoted originalists - are perfectly consistent with the Rehnquist Court's broader devotion to principles of constitutionalism. In Part III, I take up the trilogy of terrorism cases and argue that, contrary to popular understanding, those cases actually reflect a proper deference to the executive branch in the exercise of its war-making powers.

Finally, I take up in Part IV what I consider to be one of the most interesting aspects of this group of cases: Justice Scalia's apparent invitation in the Hamdi case to revisit the current understanding of birthright citizenship, which has long ignored a crucial component of the Constitution's text. I contend that the subject to the jurisdiction part of the Citizenship Clause means allegiance-owing jursidiction rather than mere territorial jurisdiction, and that as a result the Constitution does not mandate citizenship for the children of temporary visitors to the United States, particularly those who are here illegally.

Keywords: Rehnquist Court, Crawford v. Washington, Blakely v. Washington, terrorism, Supreme Court, Padilla, Hamdi, Rasul, Birthright Citizenship

JEL Classification: N40,K40,K41,K14,H56,H11

Suggested Citation

Eastman, John C., Politics and the Court: Did the Supreme Court Really Move Left Because of Embarrassment Over Bush V. Gore?. Georgetown Law Journal, Vol. 94, p. 1475, 2006. Available at SSRN:

John Eastman (Contact Author)

Chapman University, The Dale E. Fowler School of Law ( email )

One University Drive
Orange, CA 92866-1099
United States
714-628-2587 (Phone)


Claremont Institute Center for Constitutional Jurisprudence

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Upland, CA 91786
United States
877-855-3330 (Phone)

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