The Rehnquist Court: A 'By the Numbers' Retrospective

Abstract

The late Chief Justice William Rehnquist presided over the U.S. Supreme Court for 19 years, longer than any other chief justice in the 20th century. Despite this longevity, however, there is little consensus on just what the legacy of the Rehnquist Court is. Was the Rehnquist Court a restrained court that embraced a limited, text-based reading of the Constitution? Or was it a much more aggressive court, responsible for a resurgence of conservative judicial activism? Is it best epitomized by the "swaggering confidence" that put a President in office, or the cautious minimalism that disappointed its conservative supporters by failing to reverse liberal precedents bequeathed to it by the Warren and Burger Courts? This paper attempts to shed light on these questions by examining the record of the Rehnquist Court "by the numbers". Specifically, how many times did the Court use its power of judicial review to invalidate federal legislation, how many times did it do so to invalidate state legislation, and how many times did it do so to overturn existing judicial precedent? Within each of these areas, I also identify the issue area in which the Court rendered its decision, the ideological direction of the decision, and the vote margin by which the decision was made, and compare the Rehnquist Court's record in these areas to the records of the Warren and Burger Courts. Finally, I use this numeric information to identify and discuss the issue areas in which Justice O'Connor's retirement is likely to most impact the Supreme Court's jurisprudence. By examining the legacy of the Rehnquist Court from this simple, empirical perspective, this paper contributes to a growing body of legal scholarship committed to shifting discussion about the Supreme Court away from contested theories of constitutional interpretation and toward a more factually grounded examination of the role the Supreme Court actually plays in our legal and political system. I also hope to illustrate the role that basic, easily accessible empirical information can play in that examination.

Keywords: Rehnquist, empirical, empirical legal studies, activism