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High Stakes Don’t Ensure the Minimum Blues

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I have a discussion of Jan Crawford Greenburg’s new book up at TAP. The most valuable part of the book, I argue, is that it emphasizes how contingent the (relative) moderation of the late Rehnquist Court was. To excerpt one point:

The most sophisticated denial strategy is to point out that the Court rarely stays outside of the bounds established by political pressures for long. Long-established by the political science literature, this claim actually has considerable merit, and it is true that worries about the return of a “Constitution in Exile” are overblown. (It is highly unlikely that anything like a radical, pre-New Deal vision of federalism will ever command five votes in the Supreme Court. Even if it happened, the effects would be temporary, as the Republican Party would essentially be finished as a political force in its current form.)

Still, it’s important not to overstate the restrictions on the Court’s autonomy, or to assume that justices will always act in the strategic interests of the party that appointed them. In retrospect, it may seem inevitable that the Court has failed to take the highly unpopular step of overturning Roe v. Wade, but as Greenburg reminds us, Roe’s survival (in diluted form) was highly contingent. Had Ronald Reagan nominated Robert Bork when the GOP still controlled the Senate and saved Scalia to replace Lewis Powell, for example, he almost certainly would have gotten both confirmed. Similarly, Souter’s nomination by George H.W. Bush was a fluke based on the influence of John Sununu and Warren Rudman in the White House and strange internal machinations in the Department of Justice; without those things, Kenneth Starr would have been the likely nominee. Either result would have ended in Roe being overturned, and would have had a considerable impact in many other areas of law as well (most notably affirmative action and church and state issues). The Rehnquist Court could have been much more conservative than it was. Liberals shouldn’t get too complacent about the consequences should a Republican president get to appoint the replacement for John Paul Stevens or Ruth Bader Ginsburg.

As I say, it’s true that the Court–in general–tends to gravitate towards the political center. But there are also any number of exceptions to this rule, and (particularly during times of closely divided government) the Court often has considerable discretion about individual issues. The fact that overturning Roe might not be optimal for the Republican Party doesn’t ensure its survival by any means, and in fields where a great deal of rollback can be done outside the public eye the potential damage of making Roberts or Scalia the median vote on the Court is even greater.

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