I’m pleased to report that PENNumbra, the University of Pennsylvania Law Review’s new online companion journal, has been launched over at www.pennumbra.com. As I mentioned a couple weeks ago over here, I have an essay that responds to Wayne A. Logan’s Horizontal Federalism in an Age of Criminal Justice Interconnectedness. The piece, which is available
Comments
Tushnet argues: “[C]onstitutional law changed but Chief Justice Rehnquist did not change it. He … did not, by the force of his arguments or personality, change anyone’s mind. The Court moved to the right … [because] Rehnquist was joined on the Court by Justices who — antecedently, and for reasons largely independent of Rehnquist’s own articulation of a conservative view of constitutional law — agreed with him.”p.4The problem with that argument is that it assumes that the Justices are writing only to pursuade their colleagues. Tushnet seems to be arguing that Rehnquist’s success was because conservative Presidents appointed new Justices, not because of the force of Rehnquist’s own ideas. But that ignores the force of Rehnquist’s ideas beyond the court in shaping the landscape that brought him reinforcements.
I wonder if my views on Constitutional law would have been quite the same had I not read Justice Scalia’s Morrison v. Olson dissent at a time when my views on Constitutional law were forming; likewise, I can readily imagine that a person whose views on conlaw were forming in 1975 having their socks similarly blown off reading Justice Rehnquist’s Fry v. United States dissent. Rehnquist and Scalia may not have convinced a single one of their colleagues, but have both been hugely influential outside of the chambers of their collegues in laying out a vision of the law which shaped the views of a lot of law students, judges and people beyond the legal profession, and for that reason if none other, I don’t think it’s fair to say that Rehnquist’s work had nothing to do with his success. Even if it was the arrival of reinforcements that broke the liberal line, I don’t think it’s correct for Tushnet to write of Rehnquist’s influence in getting those reinforcements in the first place.
Posted by: Simon | Sep 6, 2006 5:13:28 PM
Chereminsky says: The [Rehnquist] Court did not eliminate all affirmative action, but it did adopt strict scrutiny as the test for racial classifications benefiting minoritiesp.1334. Is Chereminsky just trying to be clever, or did the Rehnquist court not adopt strict scrutiny as the test for all racial classifications, whomever they supposedly benefited?
Posted by: Simon | Sep 6, 2006 4:54:34 PM