The Majoritarian Rehnquist Court

I INTRODUCTION Recent (1995-2002) Rehnquist Court decisions striking down federal laws can be tied to "majoritarian" social and political forces. (1) In explaining why I think this is so, I will not defend these decisions. It may be, for example, that these decisions were wrongly decided, or inconsistent with what the Justices have said in other decisions, or both. Moreover, these decisions may well reflect the personal preferences of the Justices voting to invalidate these laws. Instead, my point is that majoritarian forces help explain why the Rehnquist Court seemed so willing to strike down federal laws. Before turning to the Rehnquist Court and to the social and political forces that impact its decision-making, it is useful to provide some background to my project. Having spent much of the past sixteen years examining how constitutional law is shaped by both judicial and nonjudicial actors, I am quite convinced--as Robert Dahl put it in 1957--that the Court's constitutional decisions "are never for long out of line with the policy views dominant among the lawmaking majorities of the United States." (2) This does not mean that the Court never falls out of step with lawmakers or U.S. citizens. Court-curbing proposals, for example, are often a byproduct of shifting alignments within Congress--so that a majority with constitutional views that differ from the Court's views replaces a majority that generally accepts the Court's decisionmaking. (3) While these proposals are often prompted by Court rulings that strike down federal or state laws, it would nevertheless be wrong to measure whether the Court is countermajoritarian by looking at the frequency with which it strikes down legislation. (4) It may be, for example, that lawmakers delegate power to the courts either because the issue (abortion, slavery) threatens to disrupt existing political coalitions or because they want to cast a vote for something that is politically popular (flag burning, internet decency). (5) Also, what if the laws the Court invalidates are unpopular either with lawmakers or with the American people? If the law is truly outdated, its invalidation may well seem majoritarian. (6) On the other hand, a law may be unpopular with the people but not with lawmakers. This was true with Lochner Court invalidations of first New Deal legislation. (7) What then of the Rehnquist Court? By invalidating all or parts of thirty-one laws between 1995 and 2002, (8) the Court has been characterized as "arrogant, self-aggrandizing, and unduly activist" by "giving insufficient deference--or even a modicum of respect--to Congress." (9) Whatever one thinks of this characterization, there is little reason to think that Congress and U.S. citizens will soon countermand Rehnquist Court overreaching. Instead, the Rehnquist Court seems to be paying close attention to signals that Congress and U.S. citizens have sent it. In this way, Rehnquist Court decisions striking down federal laws do not frustrate majoritarian preferences and, as such, follow the historical pattern. (10) In advancing this claim, I do not argue that the federal statutes invalidated by the Court were unpopular. Instead, I call attention to why neither lawmakers nor the people cared passionately about the fate of these statutes. Moreover, I suggest that citizens and lawmakers look especially to the Court to check Congress. Because the people turn to the Court to check Congress, rather than trust Congress to responsibly utilize its enumerated powers, Court decisions striking down federal statutes look more like exercises of delegated authority than like countermajoritarian judicial review. What follows is a laundry list of factors supporting this conclusion. These factors are broken down into sections on public opinion, Congress, and the Rehnquist Court's sensitivity to signals sent by Congress and the American people. II THE AMERICAN PEOPLE SUPPORT BOTH THE COURT'S STRIKING DOWN FEDERAL LAWS AND ITS TURN TO FEDERALISM. …