MARCI HAMILTON

Lawrence Solum objects to Marci Hamilton's characterization of the Rehnquist Court as centrist and hence non-political. Solum's analysis is interesting, I think (go read it), but both Hamilton and Solum ignore what is probably the Rehnquist Court's most important legacy at this point, though: an aggressive adherence to judicial supremacy. As Sanford Levinson put it in the Village Voice recently: the "common motif" in Rehnquist Court decisions has been "a highly self-confident group of judges unafraid to exercise their power," sometimes in a liberal direction, more often in a conservative one.

Hamilton (staggeringly) ignores the judicial supremacy dimension of Boerne v. Flores, in which the Court told Congress that congressional understandings of the meaning of Section 5 of the 14th Amendment were of no account, and that judicial understandings prevail here -- even when these understandings change because of a combination of judicial personnel turnover and political shifts, and even when Congress is objecting to this change by referrring to the Court's own precedent. Hamilton blandly lists Boerne among cases that operate "in recognition of the limited nature of federal power." She then implies that Boerne needs to be understood as part of a line of cases in which the Court was defending the powers of states against the federal government. Maybe, but it's not the real drama of the case; the real drama is that Congress tried to tell the Court how to interpret Section 5 and the Court said that Congress didn't have that authority. My lawyer friends tend to say, "of course the Court wouldn't countenance that," but I think that's a shortsighted view that is primarily a result of trends in the legal culture rather than any necessary part of the constitutional design. And especially after reading Larry Kramer again (see this post), I'm struck by how much you actually can explain with respect to the Rehnquist Court if you keep judicial supremacy in focus. On this view, for example, Bush v. Gore was primarily about "preserv[ing] the role of the Court," as Kennedy said at oral argument in Bush v. Palm Beach County Canvassing Board and as Kramer notes on p. 37 of his draft. The Court couldn't countenance the clear statutory and relatively clear constitutional framework that gave Congress the authority to decide between disputed slates of electors. And more recently, with Lawrence, the Court helped to preserve its authority by jumping on a civil rights train after the Court noted that the train was already leaving the station.

As I write this, I realize that it's important not to conflate two things: (1) the predictable attempts at institutional maintenance and (2) attempts by the Court to preserve its institutional role by claiming exclusive constitutional interpretive authority. (2) is a subset of (1), and not every instance of (1) will be an instance of (2).