Sunstein on the Rehnquist Court

Via Howard Bashman, Cass Sunstein reviews Mark Tushnet's latest book, A Court Divided: The Rehnquist Court and the Future of Constitutional Law. This passage was interesting:

Tushnet describes a court that has followed the extreme conservatives on some important issues. Under Rehnquist's leadership, the constitutional law of federalism has seen a kind of revolution. Between 1937 and 1995, the Court did exceedingly little to limit the power of the national government, failing to issue even a single ruling to the effect that Congress had exceeded its authority under the commerce clause. By contrast, the Rehnquist Court has re-invigorated limitations on congressional power, striking down provisions of both the Gun-Free School Zones Act and the Violence Against Women Act. For many decades, the Court ruled that Congress had a great deal of flexibility to protect liberty and equality under its power to "enforce" the Fourteenth Amendment. Sharply limiting these rulings, the Rehnquist Court has struck down the Religious Freedom Restoration Act and parts of the Americans With Disabilities Act and the Age Discrimination in Employment Act. Tushnet thinks that these decisions reflect "disdain for Congress."

Under the Rehnquist Court, as Tushnet explains, U.S. corporations have had many significant successes. Countless companies have been alarmed at the prospect of high punitive-damage awards, and indeed jury awards can be both huge and unpredictable. Does the Constitution stand in the way of such awards? For almost all of the nation's history, the answer was no; juries could award punitive damages without the slightest constitutional restriction. But under the Rehnquist Court, all this has changed. In two crucial decisions, the Court has required that the punitive award have some relationship to the monetary value of the harm that was done. This requirement imposes a real discipline on what juries may do.

This is very sloppy writing. The passage begins by claiming that the Court is led by "extreme conservatives on some important issues," and then offers as a second example the fact that the "Rehnquist Court" has protected corporations by limiting punitive damages.

This may leave may relatively uninformed readers with the impression that the "extreme conservatives" on the Supreme Court were protecting corporations, etc. Such an impression would be precisely false.

The "two crucial decisions" in which the "Rehnquist Court" has limited punitive damages are BMW v. Gore, and State Farm Mutual Auto. Insurance v. Campbell. In the first case, the majority was composed of Stevens (writing), Souter, Breyer, O'Connor, and Kennedy. The dissenters were Ginsburg and the three most conservative Justices -- Scalia, Thomas, and Rehnquist himself. In the second case, Rehnquist seems to have changed positions, perhaps for stare decisis reasons. Scalia, Thomas, and Ginsburg still dissented. (Scalia and Thomas, in particular, object to the sort of "substantive due process" reasoning that the Court employed here.)

So the "Rehnquist Court" was not by any means led by "the extreme conservatives" in issuing these two punitive damages decisions. The opposite is the case: The "extreme conservatives" dissented, while the Court's liberals (with the exception of Ginsburg) favored the outcomes.

Stuart Buck