How conservative is the Rehnquist court? Three issues, one answer

Fordham Law Review

Volumn 65, Issue 6, 1997, Pages 2685-2728

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EID: 2242428901     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (318)

1. See David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court 453 (1992) [hereinafter Savage, Turning Right] ("With the change in membership, the [liberal] old agenda has been pronounced dead."); Bernard Schwartz, A History of the Supreme Court 364 (1993) [hereinafter Schwartz, A History] ("Nor can it be doubted that the line is being drawn farther to the right by the Rehnquist Court than it was by its immediate predecessors."); Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 304 (Lee Epstein ed., 1995) (classifying the Burger and Rehnquist Courts as conservative); D.F.B. Tucker, The Rehnquist Court and Civil Rights 211 (1995) (referring to both the Burger and Rehnquist Courts as conservative); Christopher E. Smith & Avis A. Jones, The Rehnquist Court's Activism and the Risk of Injustice, 26 Conn. L. Rev. 53, 53-54 (1993) (stating that the emerging conservative majority would control the outcome of most decisions).
2. See David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court 453 (1992) [hereinafter Savage, Turning Right] ("With the change in membership, the [liberal] old agenda has been pronounced dead."); Bernard Schwartz, A History of the Supreme Court 364 (1993) [hereinafter Schwartz, A History] ("Nor can it be doubted that the line is being drawn farther to the right by the Rehnquist Court than it was by its immediate predecessors."); Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 304 (Lee Epstein ed., 1995) (classifying the Burger and Rehnquist Courts as conservative); D.F.B. Tucker, The Rehnquist Court and Civil Rights 211 (1995) (referring to both the Burger and Rehnquist Courts as conservative); Christopher E. Smith & Avis A. Jones, The Rehnquist Court's Activism and the Risk of Injustice, 26 Conn. L. Rev. 53, 53-54 (1993) (stating that the emerging conservative majority would control the outcome of most decisions).
3. See David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court 453 (1992) [hereinafter Savage, Turning Right] ("With the change in membership, the [liberal] old agenda has been pronounced dead."); Bernard Schwartz, A History of the Supreme Court 364 (1993) [hereinafter Schwartz, A History] ("Nor can it be doubted that the line is being drawn farther to the right by the Rehnquist Court than it was by its immediate predecessors."); Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 304 (Lee Epstein ed., 1995) (classifying the Burger and Rehnquist Courts as conservative); D.F.B. Tucker, The Rehnquist Court and Civil Rights 211 (1995) (referring to both the Burger and Rehnquist Courts as conservative); Christopher E. Smith & Avis A. Jones, The Rehnquist Court's Activism and the Risk of Injustice, 26 Conn. L. Rev. 53, 53-54 (1993) (stating that the emerging conservative majority would control the outcome of most decisions).
4. See David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court 453 (1992) [hereinafter Savage, Turning Right] ("With the change in membership, the [liberal] old agenda has been pronounced dead."); Bernard Schwartz, A History of the Supreme Court 364 (1993) [hereinafter Schwartz, A History] ("Nor can it be doubted that the line is being drawn farther to the right by the Rehnquist Court than it was by its immediate predecessors."); Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 304 (Lee Epstein ed., 1995) (classifying the Burger and Rehnquist Courts as conservative); D.F.B. Tucker, The Rehnquist Court and Civil Rights 211 (1995) (referring to both the Burger and Rehnquist Courts as conservative); Christopher E. Smith & Avis A. Jones, The Rehnquist Court's Activism and the Risk of Injustice, 26 Conn. L. Rev. 53, 53-54 (1993) (stating that the emerging conservative majority would control the outcome of most decisions).
5. See David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court 453 (1992) [hereinafter Savage, Turning Right] ("With the change in membership, the [liberal] old agenda has been pronounced dead."); Bernard Schwartz, A History of the Supreme Court 364 (1993) [hereinafter Schwartz, A History] ("Nor can it be doubted that the line is being drawn farther to the right by the Rehnquist Court than it was by its immediate predecessors."); Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 304 (Lee Epstein ed., 1995) (classifying the Burger and Rehnquist Courts as conservative); D.F.B. Tucker, The Rehnquist Court and Civil Rights 211 (1995) (referring to both the Burger and Rehnquist Courts as conservative); Christopher E. Smith & Avis A. Jones, The Rehnquist Court's Activism and the Risk of Injustice, 26 Conn. L. Rev. 53, 53-54 (1993) (stating that the emerging conservative majority would control the outcome of most decisions).
6. Savage, supra note 1, at 453-58.
7. Until Chief Justice Burger retired, President Reagan had appointed only one Justice, Sandra Day O'Connor. Savage, supra note 1, at 5. New Justices since Rehnquist's appointment as Chief Justice include Reagan appointees Antonin Scalia and Anthony Kennedy, Bush appointees David Souter and Clarence Thomas, and Clinton appointees Ruth Bader Ginsburg and Stephen Breyer. Notably, while the Burger Court era studied here experienced only the addition of Justice O'Connor, the Rehnquist Court underwent significant changes during the period studied here with the additions of Thomas, Ginsburg, and Breyer. But there have been no changes in membership since the period studied here.
8. Although such designations are generally used to refer to all terms during the tenure of a Chief Justice, "the Burger Court" and "the Rehnquist Court" will be used herein to refer to the two five-year periods studied in this Note.
9. See infra app. at tbl. 2-a.
10. See infra app. at tbl. 2-b.
11. See infra note 33 and accompanying text.
12. See infra app. at tbl. 2-c.
13. See infra part III.
14. See infra app. at tbl. 2-d.
15. See infra part IV.
16. The Rehnquist Court produced 448 such opinions, and the Burger Court rendered 728 such opinions. It should be noted that in the interim between the periods studied here, Congress ended the requirement that the Supreme Court automatically review a decision of the highest State court in which that court held a federal law to be invalid. See Act of June 27, 1988, Pub. L. No. 100-352, 102 Stat. 662 (1988) (codified at 28 U.S.C. § 1257 (1994)). The previously automatic appeals were converted to petitions for certiorari. H.R. Rep. No. 100-660, 2d Sess. (1988), reprinted in 1988 U.S.C.C.A.N. 776, 778. However, this change was not treated as significant for purposes of this study because the change was made to eliminate a line of cases regarding "arcane and technical provisions of its jurisdiction," the majority of which were disposed of without briefing or oral argument, and resulted in "murky precedential value." Id. at 776. The Supreme Court itself claimed that while such automatic appeals accounted for 36% of the cases it decided in the 1980 term, most were issues of little significance that resulted in summary decisions without written opinions. Id. at 781-82. Therefore, although the elimination of automatic appeal may have contributed to the reduction in the total number of decisions issued by the Court, it was unlikely to have had a significant effect on the full, signed opinions that were the focus of this study.
17. See, e.g., Richard L. Pacelle, Jr., The Transformation of the Supreme Court's Agenda from the New Deal to the Reagan Administration 203 (1991) [hereinafter Pacelle, Transformation]; Christopher E. Smith & Thomas R. Hensley, Assessing the Conservatism of the Rehnquist Court, 77 Judicature 83, 85 (1993).
18. See, e.g., Richard L. Pacelle, Jr., The Transformation of the Supreme Court's Agenda from the New Deal to the Reagan Administration 203 (1991) [hereinafter Pacelle, Transformation]; Christopher E. Smith & Thomas R. Hensley, Assessing the Conservatism of the Rehnquist Court, 77 Judicature 83, 85 (1993).
19. The beneficiary was the party whose interests were advanced by the decision, not necessarily an outright winner or loser. Where the decision favored both sides equally, the beneficiary was a split.
20. The decrease in the number of full decisions has "occurred despite increasing record numbers of case filings." Richard L. Pacelle, Jr., The Dynamics and Determinants of Agenda Change in the Rehnquist Court, in Contemplating Courts, supra note 1 at 251, 267 [hereinafter Pacelle, Dynamics].
21. The Burger Court averaged just over 145 signed decisions per term, while the Rehnquist Court averaged only 90 signed decisions per term.
22. See infra app. at tbl. 2-d.
23. These categories included federal and state law, criminal cases (composed of habeas and criminal law decisions), civil rights (including race and nationality, gender, age, disability, and other discrimination claims, § 1983 cases, and voting rights claims), First Amendment decisions, and labor decisions (including NLRA and ERISA claims).
24. Interestingly, these issues were not the anticipated focal points when this project was begun. In fact, issues concerning federalism were expected to be the eventual focus of this Note when the data were assembled. While the data did indicate a shift in decisions regarding federal, state, and local regulations, as well as in cases of conflicts between federal and state law, the categories addressed in this Note proved unexpectedly compelling.
25. For a list of all cases placed in the discrimination category, see infra app. at tbl. 1-a.
26. See infra app. at tbl. 2-a.
27. The "other" discrimination category includes claims by the disabled, homosexuals, institutionalized individuals, parents and children, and government entitlement recipients, as well as prisoners' Bivens claims, and intimidation claims.
28. See infra app. at tbl. 2-b. The apparently large decrease in support for age-based claims from 100% during the Burger Court to 66.7% during the Rehnquist Court actually only reflects a tiny number of cases: four of four decisions for the age-based plaintiff in the Burger Court, two of three decisions in the Rehnquist Court.
29. See infra app. at tbl. 2-a.
30. See id.; infra app. at tbl. 3-a.
31. See Pacelle, Transformation, supra note 13, at 203.
32. Id.; see also Stanley H. Friedelbaum, The Rehnquist Court: In Pursuit of Judicial Conservatism 119 (1994) [hereinafter Friedelbaum, The Rehnquist Court] (stating that the return to strict scrutiny for all race-based classifications "augurs a period of moderation, if not cessation, in the development of programs explicitly designed to assist minorities").
33. Haywood Burns, The Activism Is Not Affirmative, in The Burger Years 95, 107 (Herman Schwartz ed., 1987).
34. Michael Comiskey, The Rehnquist Court and American Values, 77 Judicature 261, 263 (1994).
35. See Smith & Hensley, supra note 13, at 85.
36. See Comiskey, supra note 29, at 264; Smith & Hensley, supra note 13, at 85.
37. Angela Davis, Race, Law and Justice: The Rehnquist Court and the American Dilemma, 45 Am. U. L. Rev. 567, 637 (1996) [hereinafter Davis, The American Dilemma].
38. Sameer M. Ashar & Lisa F. Opoku, Recent Developments, Justice O'Connor's Blind Rationalization of Affirmative Action Jurisprudence - Adarand Constructors, Inc. v. Pena, 115 5. Ct. 2097 (1995), 31 Harv. C.R.-C.L. L. Rev. 223, 223-24 (1996).
39. Sameer M. Ashar & Lisa F. Opoku, Recent Developments, Justice O'Connor's Blind Rationalization of Affirmative Action Jurisprudence - Adarand Constructors, Inc. v. Pena, 115 5. Ct. 2097 (1995), 31 Harv. C.R.-C.L. L. Rev. 223, 223-24 (1996).
40. Michael W. Combs, The Supreme Court and African Americans: Personnel and Policy Transformations, 36 How. L.J. 139, 182 (1993).
41. See infra app. at tbl. 2-b. Viewed another way, race-based discrimination claims dropped from 3.10% (25 cases) of the Burger Court's adjusted total decisions to 1.57% (8 cases) of the Rehnquist Court's adjusted total decisions.
42. Decisions favorable to prisoners increased from only 14% under the Burger Court to 67% under the Rehnquist Court. Compare Whitley v. Albers, 475 U.S. 312, 325-26 (1986) (holding that shooting prisoner-plaintiff during attempt to rescue prison guard in riot did not constitute cruel and unusual punishment); Daniels v. Williams, 474 U.S. 327, 332-33 (1986) (denying cause of action under § 1983 for negligence); Davidson v. Cannon, 474 U.S. 344, 347-48 (1986)(denying cause of action under § 1983 for lack of due care in injury to prisoner); Hudson v. Palmer, 468 U.S. 517, 536 (1984) (holding that because prisoner has no expectation of privacy in his cell, a shake down search did not constitute illegal search and seizure); Smith v. Wade, 461 U.S. 30, 56 (1983) (allowing punitive damages against prison found culpable for sexual assault on youth offender); Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983) (rejecting cause of action for criminal defendant against police officer who perjured himself during trial); and Hewitt v. Helms, 459 U.S. 460, 476-77 (1983) (holding that prison's evidentiary review satisfied due process for prisoner confined to administrative segregation) with Lewis v. Casey, 116 S. Ct. 2174, 2182-84 (1996) (holding that showing of isolated actual injury was insufficient to sustain class action on behalf of prisoners); Sandin v. Conner, 115 S. Ct. 2293, 2302 (1995) (holding that refusal to allow witness at a disciplinary hearing did not violate due process); Farmer v. Brennan, 511 U.S. 825, 847 (1994) (holding that prisoner-plaintiff may state a claim asserting prison liability for deliberate indifference to inmate safety); Helling v. McKinney, 509 U.S. 25, 35 (1993) (allowing claim for involuntary exposure to second-hand cigarette smoke); Hudson v. McMillan, 503 U.S. 1, 4 (1992) (holding that physical force resulting in injury may constitute a violation of inmate's rights); and McCarthy v. Madigan, 503 U.S. 140, 149 (1992) (holding that prisoner-plaintiff need not exhaust state administrative procedures before filing a Bivens Action). It is also interesting to note that prisoners are beneficiaries of favorable decisions more often than minorities in light of the current Court's unsympathetic disposition toward the rights of criminal defendants. See infra part IV.
43. Combs, supra note 34, at 182.
44. See infra app. at tbl. 3-a. The subcategories were determined by compiling the cases by type of discrimination alleged, and then grouping them based on the similarity of the claims made. For example, the racial classification subcategory encompasses both formal racial classifications and de facto classifications resulting from unequal application of the law. Therefore, Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2117 (1995), which involved a challenge to a government affirmative action program, was placed in the racial classification category. But a strikingly different case, Hunter v. Underwood, 471 U.S. 222, 232 (1985), was included in this category as an instance of de facto classification because the claimant alleged discriminatory application of a criminal statute - i.e., the law was selectively used to punish minorities. United States v. Armstrong, 116 S. Ct. 1480 (1996), was placed in this category for largely the same reasons - unequal prosecution on the basis of race. The institutional racism category is composed of discrimination claims lodged against non-governmental entities. For example, Bob Jones Univ. v. United States, 461 U.S. 574, 577, 605 (1983), concerning whether the I.R.S. could deny tax exempt status on the basis of discriminatory admission standards, was placed in this category because the alleged racial discrimination was committed by a private institution.
45. See infra text accompanying notes 43-47.
46. See infra notes 53-57 and accompanying text.
47. See infra app. at tbl. 3-a.
48. See Missouri v. Jenkins, 115 S. Ct. 2038 (1995); United States v. Fordice, 505 U.S. 717 (1992); Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982); Crawford v. Board of Educ., 458 U.S. 527 (1982).
49. 458 U.S. 457 (1982).
50. Id. at 459.
51. Id. at 461.
52. Id. at 461-63.
53. Id. at 470.
54. 458 U.S. 527 (1982).
55. Id. at 529, 545.
56. See id. at 535.
57. Id. at 537. The Court ultimately concluded: Were we to hold that the mere repeal of race-related legislation is unconstitutional, we would limit seriously the authority of States to deal with the problems of our heterogeneous population. States would be committed irrevocably to legislation that has proved unsuccessful or even harmful in practice. And certainly the purposes of the Fourteenth Amendment would not be advanced by an interpretation that discouraged the States from providing greater protection to racial minorities. Nor would the purposes of the Amendment be furthered by requiring the States to maintain legislation designed to ameliorate race relations or to protect racial minorities but which has produced just the opposite effects. Id. at 539.
58. Id. at 547 (Blackmun, J., concurring) (emphasis omitted) (quoting Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 485 (1982)). But, in his dissent, Justice Marshall countered: In their generosity, California voters have allowed those seeking racial balance to petition the very school officials who have steadfastly maintained the color line at the schoolhouse door to comply voluntarily with their continuing state constitutional duty to desegregate. At the same time, the voters have deprived minorities of the only method of redress that has proved effective - the full remedial powers of the state judiciary. Id. at 562 (Marshall, J., dissenting).
59. 505 U.S. 717 (1992).
60. Id. at 722-24.
61. 347 U.S. 483 (1954).
62. Fordice, 505 U.S. at 724-25. The Court noted: By the mid-1980's . . . more than 99 percent of Mississippi's white students were enrolled at University of Mississippi, Mississippi State, Southern Mississippi, Delta State, and Mississippi University for Women. The student bodies at these universities remained predominantly white, averaging between 80 and 91 percent white students. Seventy-one percent of the State's black students attended Jackson State, Alcorn State, and Mississippi Valley State, where the racial composition ranged from 92 to 99 percent black. Id.
63. Id. at 743.
64. 115 S. Ct. 2038 (1995).
65. Id. at 2042, 2046.
66. Id. at 2053-54 ("This conclusion follows directly from Milliken II, decided one year after Gautreaux, where we reaffirmed the bedrock principle that 'federal-court decrees exceed appropriate limits if they are aimed at eliminating a condition that does not violate the Constitution or does not flow from such a violation'" (quoting Milliken v. Bradley, 433 U.S. 267, 282 (1922)).
67. Fordice, 505 U.S. at 734 ("Obviously, this midpassage justification for perpetuating a policy enacted originally to discriminate against black students does not make the present admissions standards any less constitutionally suspect."); id. at 739 ("Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system.").
68. The Supreme Court, 1991 Term: Constitutional Law, Part I, 106 Harv. L. Rev. 163, 235 (1992).
69. Id. at 236. But see Ronald Kahn, The Supreme Court as a (Counter) Majoritarian Institution: Misperceptions of the Warren, Burger, and Rehnquist Courts, 1994 Det. C.L. Rev. 1, 42 (describing Fordice as an instance in which the Rehnquist Court strengthened key equal protection principles).
70. Six Burger Court cases were placed in the racial classification category. See Batson v. Kentucky, 476 U.S. 79 (1986); Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985); Hunter v. Underwood, 471 U.S. 222 (1985); Allen v. Wright, 468 U.S. 737 (1984); Palmore v. Sidoti, 466 U.S. 429 (1984); Plyler v. Doe, 457 U.S. 202 (1982). Four Rehnquist Court cases were placed in this category. See United States v. Armstrong, 116 S. Ct. 1480 (1996); Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995); Northeastern Fla. Chapter of the Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993); Georgia v. McCollum, 505 U.S. 42 (1992). There were three institutional racism cases under the Burger Court. See Newport News Shipbuilding & Drydock Co. v. EEOC, 462 U.S. 669 (1983); Bob Jones Univ. v. United States, 461 U.S. 574 (1983); Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).
71. 471 U.S. 222 (1985).
72. Id. at 232-33.
73. Id. at 231.
74. Id. at 232.
75. United States v. Armstrong, 116 S. Ct. 1480, 1483 (1996).
76. Id. at 1487 (stating that, in Hunter, minorities were 1.7 times more likely to suffer disenfranchisement under the law).
77. Id. at 1493 (Stevens, J., dissenting).
78. Id. at 1494 (Stevens, J., dissenting).
79. Allen v. Wright, 468 U.S. 737, 766-68 (1984) (Brennan, J., dissenting) (citations omitted).
80. Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983).
81. Id. at 595 (citations omitted).
82. 457 U.S. 202 (1982).
83. Id. at 230.
84. Id. at 215 (emphasis omitted).
85. Id. at 220.
86. 508 U.S. 656 (1993).
87. Id. at 658.
88. 468 U.S. 737 (1984).
89. Northeast Florida, 508 U.S. at 663-64, 666.
90. 115 S. Ct. 2097 (1995).
91. Id. at 2113.
92. Id. at 2117.
93. Id. at 2120 (Stevens, J., dissenting) (admonishing the court for failing to distinguish between "a decision by the majority to impose a special burden on the members of a minority race and a decision by the majority to provide a benefit to certain members of that minority notwithstanding its incidental burden on some members of the majority").
94. Id. at 2114. While the Supreme Court had previously recognized that "the level of scrutiny does not change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination," Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 273 (1986), that principle had been applied to redress discrimination against the plaintiff, not to assist a plaintiff seeking to prevent government-sponsored redress of discrimination. See, e.g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 731-33 (1982) (holding that single-sex admissions policy of a state supported university cannot be justified on the ground that it compensates for discrimination against women).
95. See David M. O'Brien, Charting the Rehnquist Court's Course: How the Center Folds, Holds, and Shifts, 40 N.Y.L. Sch. L. Rev. 981, 986 (1996) ("A majority of the Rehnquist Court turned the corner on affirmative action in Richmond v. J.A. Croson, making it much more difficult for states and localities to defend such programs, and in Northeastern Florida Contractors v. Jacksonville making it easier for white-owned businesses to attack the constitutionality of such programs." (footnotes omitted)).
96. See infra app. at tbl. 3-a.
97. Sixteen cases were included in the employment discrimination subcategory. See Rivers v. Roadway Express, Inc., 511 U.S. 298 (1994); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993); Local No. 93 v. City of Cleveland, 478 U.S. 501 (1986); Local 28 of the Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421 (1986); Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986); Burnett v. Gratton, 468 U.S. 42 (1984); Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984); EEOC v. Shell Oil Co., 466 U.S. 54 (1984); Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 56 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63 (1982); Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982); Patsy v. Board of Regents, 457 U.S. 496 (1982); Pullman-Standard v. Swint, 456 U.S. 273 (1982); United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983); General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375 (1982); Connecticut v. Teal, 457 U.S. 440 (1982).
98. 458 U.S. 375 (1982).
99. Id. at 391-97. The plaintiffs had sued under 42 U.S.C. § 1981, which the Court traced to the Civil Rights Act of 1866 in concluding that the statute was only meant to reach intentional discrimination. Id. at 396. For additional examples of the Burger Court's imposition of high evidentiary burdens on minority claimants, see Patterson, 456 U.S. at 77 (holding that a Title VII exemption for seniority systems applies to systems implemented before, as well as after, the passage of Title VII); Wygant, 476 U.S. at 283-84 (holding that a layoff policy giving preference to minority employees must be narrowly tailored).
100. 457 U.S. 440 (1982).
101. Id. at 448-49.
102. Id. at 450 (emphasis omitted).
103. 478 U.S. 421 (1986).
104. Id. at 443-44.
105. Id. at 445.
106. See, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 508-12 (1993) (holding that showing that the defendant-employer provided an untruthful explanation for its alleged discrimination was insufficient to shift the burden of proof to the employer).
107. See, e.g., Rivers v. Roadway Express, Inc., 511 U.S. 298, 313 (1994) (holding that a Congressional amendment to employment discrimination law was not retroactive).
108. 509 U.S. 502 (1993).
109. Id. at 509-10.
110. Id. at 510-11. The Court went on to say that "nothing in law would permit us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable." Id. at 514-15.
111. Id. at 525 (Souter, J., dissenting).
112. Id. at 521. In contrast, the Rehnquist Court eased the burden for gender-based employment discrimination claims in Harris v. Forklift System, Inc., 510 U.S. 17, 21-23 (1993). The Court held that demonstration of a "discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being" was sufficient to state a claim under Title VII. Id. at 22.
113. 511 U.S. 298 (1994).
114. Id. at 304, 313. In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Court had held that 42 U.S.C. § 1981 no longer applied after a contract had been formed, effectively ending the Rivers plaintiffs § 1981 claim in the lower court. Rivers, 511 U.S. at 301-03. While the Rivers plaintiffs appeal was pending, Congress amended § 1981, effectively overruling the Patterson decision. Id. at 302.
115. Id. The Court relied on a similar case in which a gender-based employment discrimination claim failed because the Court refused to retroactively apply another amendment to 42 U.S.C. § 1981. See Landgraf v. USI Film Prods., 511 U.S. 244, 286 (1994). Landgraf was the only decision of five regarding gender discrimination rendered against the plaintiff by the Rehnquist Court. See infra app. at tbl. 2-b.
116. Rivers, 511 U.S. at 315 (Blackmun, J., dissenting).
117. See Erwin Chemerinsky, The Supreme Court, 1988 Term: Foreword: The Vanishing Constitution, 103 Harv. L. Rev. 43, 96 (1989).
118. See Pacelle, Dynamics, supra note 15, at 265 (noting the Court's growing "willingness to defer to Congress and the executive branch in civil liberties and civil rights issues").
119. See infra app. at tbl. 2-a.
120. See infra note 121 and accompanying text.
121. An interesting corollary to the apparent shift in race-based claims are the tribal rights cases. Although these cases tend to focus on land disputes, tribal autonomy from state regulation, and law suit jurisdiction rather than directly addressing civil rights issues, it is interesting to note that while the Burger Court found in favor of tribes 61% of the time, the Rehnquist Court found for tribes only 25% of the time. See infra app. at tbl. 2-a. This reversal in decisions favoring tribal interests is almost exactly the same as the reversal in decisions favoring racial minorities in discrimination cases. Cf. id. at tbl. 2-a and tbl. 2-b.
122. Two Rehnquist Court voting rights cases were classified as favoring minorities. See United States v. Hays, 115 S. Ct. 2431 (1995); Morse v. Republican Party of Va., 116 S. Ct. 1186 (1996). Eight Rehnquist Court voting rights cases were decided against minority interests. See Bush v. Vera, 116 S. Ct. 1941 (1996); Shaw v. Hunt, 116 S. Ct. 1894 (1996); Miller v. Johnson, 115 S. Ct. 2475 (1995); Holder v. Hall, 512 U.S. 874 (1994); Johnson v. De Grandy, 512 U.S. 997 (1994); Shaw v. Reno, 509 U.S. 630 (1993); Growe v. Emison, 507 U.S. 25 (1993); Presley v. Etowah County Comm'n, 502 U.S. 491 (1992).
123. 116 S. Ct. 1186 (1996).
124. Id. at 1191-92, 1213. Two Justices found that the fee required preclearance and was also banned as equivalent to a poll tax. Id. at 1198-99, 1213. Three other Justices found the tax unconstitutional under the Twenty-fourth Amendment ban on poll tax. Id. at 1215.
125. 115 S. Ct. 2431 (1995).
126. Id. at 2437.
127. See Shaw v. Reno, 509 U.S. 630, 642 (1993) (holding that the plaintiff had standing to challenge the majority-minority congressional districts in North Carolina). The Court based its decision on the suspect nature of any racial classification, stating: A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group - regardless of their age, education, economic status, or the community in which the live - think alike, share the same political interests, and will prefer the same candidates at the polls. Id. at 647. The Court went on to invalidate those congressional districts in Shaw v. Hunt, 116 S. Ct. 1894, 1905 (1996). Similarly, the Court upheld a challenge to Georgia's majority-minority districts in Miller v. Johnson, 115 S. Ct. 2475, 2493-94 (1995), and held in Bush v. Vera that Texas's minority-majority congressional must be districts subject to strict scrutiny, stating that "to the extent that race is used as a proxy for political characteristics, a racial stereotype requiring strict scrutiny is in operation." 116 S. Ct. 1941, 1956 (1996).
128. See Johnson v. De Grandy, 512 U.S. 997, 1024 (1994) (rejecting Hispanic and black voter challenge to Florida redistricting plan, finding insufficient evidence of vote dilution in majority districts where minorities receive proportional representation through majority-minority voting districts); Holder v. Hall, 512 U.S. 874, 885 (1994) (rejecting black plaintiffs challenge to county's single-member board of commissioners on the basis that the number of members in the governing body is not subject to a vote dilution claim); Growe v. Emison, 507 U.S. 25, 42 (1993) (holding that the district court erred in requiring Minnesota to establish a majority-minority district because there was insufficient evidence of vote dilution); Presley v. Etowah County Comm'n, 502 U.S. 491, 509-510 (1992) (holding that county commissioners' action diluting their own power just after black resident was elected to the commission was not actionable).
129. Samuel Issacharoff, The Constitutional Contours of Race and Politics, 1995 Sup. Ct. Rev. 45, 69.
130. Ashar & Opoku, supra note 33, at 223.
131. See supra notes 65-97 and accompanying text.
132. See Burns, supra note 28, at 106-07 ("The constricted vision of the Burger Court where the rights of racial minorities are concerned has resulted in a narrower concept of what these rights are, and a restricted ability on the part of minorities to enforce them.").
133. Bush v. Vera, 116 S. Ct. 1941, 1964 (1996).
134. Combs, supra note 34, at 177. The Rehnquist Court's affirmative action decisions have also been described as obstructionist: Just as it did more than a century ago in overseeing the demise of Reconstruction, the Supreme Court is obstructing yet another national consensus supporting affirmative measures to eliminate systemic discrimination from American society. By narrow majorities, the Court has meticulously laid the groundwork for a new and untested colorblind jurisprudence, with the ultimate aim of invalidating government use of race-conscious affirmative action as an instrument of public policy in dismantling entrenched patterns of systemic discrimination against minorities and women. Brent E. Simmons, Reconsidering Strict Scrutiny of Affirmative Action, 2 Mich. J. Race & L. 51, 52-53 (1996).
135. Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995).
136. Id. at 2122 (Stevens, J., dissenting).
137. See Lynne Henderson, Note, Authoritarianism and the Rule of Law, 66 Ind. L.J. 379, 435-36 (1991) (arguing that the Rehnquist Court's majoritarian jurisprudence is actually authoritarian, serving to suppress the minority rather than defer to the majority).
138. See infra app. at tbl. 2-c.
139. See infra app. at tbl. 2-c.
140. See Mark Tushnet, The Supreme Court and Its First Amendment Constituency, 44 Hastings L.J. 881, 898-99 (1993) (indicating that the Rehnquist Court's First Amendment decisions are a logical result of its policy inclinations).
141. Thomas I. Emerson, Freedom of the Press Under the Burger Court, in The Burger Court: The Counter-Revolution That Wasn't 1, 26 (Vincent Blasi ed., 1983).
142. See Lyle Denniston, The Burger Court and the Press in The Burger Years 23, 44 (Herman Schwartz ed., 1987); Friedelbaum, supra note 27, at 64; William C. Louthan, The United States Supreme Court: Lawmaking in the Third Branch of Government 224 (1991).
143. See Lyle Denniston, The Burger Court and the Press in The Burger Years 23, 44 (Herman Schwartz ed., 1987); Friedelbaum, supra note 27, at 64; William C. Louthan, The United States Supreme Court: Lawmaking in the Third Branch of Government 224 (1991).
144. Schwartz, A History, supra note 1, at 375.
145. Denniston, supra note 136, at 44.
146. Friedelbaum, supra note 27, at 64.
147. See Emerson, supra note 135, at 24-26.
148. Louthan, supra note 136, at 224 ("Rehnquist shocked his conservative supporters off the Court with his opinion holding that the Rev. Jerry Falwell could not collect damages for emotional distress imposed on him by a parody in Larry Flynt's Hustler Magazine that portrayed Falwell as an incestuous drunk.").
149. See Tushnet, supra note 134, at 891-92.
150. Stephen Reinhardt, The First Amendment: The Supreme Court and the Left - With Friends Like These, 44 Hastings L.J. 809, 818 (1994).
151. Id.
152. Tushnet, supra note 134, at 898.
153. See infra app. at tbl. 2-c.
154. Tushnet, supra note 134, at 899.
155. See infra app. at tbl. 2-c.
156. See infra app. at tbl. 3-b. The cases were placed in a subcategory based on the type of speech restriction challenged: cable television, campaign activities, commercial speech, forum, intragovernmental restrictions, press access, protest, and content. For example, cases in which the government tried to impose restrictions on its employees or recipients of government funding were labeled intragovernmental, while cases in which a government restriction was placed on the display of certain symbols was placed in the content subcategory.
157. See Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); New York v. Ferber, 458 U.S. 747 (1982).
158. See infra app. at tbl. 3-b.
159. See infra app. at tbl. 2-c.
160. See infra app. at tbl. 3-b.
161. See Pacelle, Transformation, supra note 13, at 198-203 (discussing volitional and exigent agendas); see also infra text accompanying notes 279-73 (indicating that with regard to criminal justice cases, the Court appears to be constructing an exigent agenda, maintaining rather than expanding existing doctrine).
162. See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686-87 (1986) (limiting expression in a school setting); Cornelius v. NAACP Nat'l Defense & Educ. Fund, 473 U.S. 788, 808 (1985) (limiting access to a government charitable scheme); International Longshoremen's Ass'n v. Allied Int'l, Inc., 456 U.S. 212, 226 (1982) (holding Longshoremen liable for damages resulting from refusal to unload Russian vessel in protest of the invasion of Afghanistan).
163. See David G. Savage, Rulings Displeased Both Left and Right: Burger Court Leaves Unclear Legacy, L.A. Times, July 7, 1986, at A8 [hereinafter Savage, Legacy]. The Burger Court's First Amendment decisions led University of Chicago law professor Geoffrey Stone to denounce the Burger court, in a recent issue of the ABA Journal, for "selective activism."
164. Schwartz, A History, supra note 1, at 327.
165. See In re R.M.J., 455 U.S. 191, 206-07 (1982) (finding law restricting lawyer's non-misleading advertising in violation of the First Amendment); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 69 (1983) (holding Postal Service regulation prohibiting the unsolicited mailing of contraceptives ads to be in violation of the First Amendment); Posadas de Puerto Rico v. Tourism Co., 478 U.S. 328, 348 (1986) (holding that Puerto Rico law prohibiting advertisement of tourist casinos to residents was narrowly tailored enough to survive First Amendment challenge).
166. See supra notes 135-36 and accompanying text.
167. See 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996); Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995); Rubin v. Coors Brewing Co., 115 S. Ct. 1585 (1994); Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136 (1994); United States v. Edge Broadcasting, 509 U.S. 418 (1993); City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993); Edenfield v. Fane, 507 U.S. 761 (1993).
168. 115 S. Ct. 2371 (1995).
169. Id. at 2380-81.
170. 509 U.S. 418 (1993).
171. Id. at 436. The challenging broadcaster operated in Virginia where lotteries are legal, but 7.8% percent of its audience lived in North Carolina, which prohibits lotteries. Id. at 423-24. This decision also correlates to the Rehnquist Court's more sympathetic stance toward government regulation of cable television. See infra note 176 and accompanying text.
172. Edge Broadcasting, 509 U.S. at 435.
173. City of Cincinnati v. Discovery Network, 507 U.S. 410, 419-20 (1993).
174. Ibanez v. Florida Dep't of Bus. & Prof'l Regulation, 512 U.S. 136, 148-49 (1994).
175. Rubin v. Coors Brewing Co., 115 S. Ct. 1585, 1594 (1995).
176. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495, 1515 (1996).
177. 116 S. Ct. 1495 (1996).
178. Id. at 1507 (citations omitted) ("The special dangers that attend complete bans on truthful, non-misleading commercial speech cannot be explained away by 'common-sense distinctions' . . . between commercial and non-commercial speech.").
179. Id. at 1508. Although Justice Scalia seemed to agree in his dissent that most restrictions on truthful advertisements are "paternalistic," he seemed uncomfortable with assigning constitutional protection to commercial speech: On the other hand, it would also be paternalism for us to prevent the people of the States from enacting laws that we consider paternalistic, unless we have good reason to believe that the Constitution itself forbids them. I will take my guidance as to what the Constitution forbids, with regard to a text as indeterminate as the First Amendment's preservation of "the freedom of speech," and where the core offense of suppressing particular political ideas is not at issue, from the long accepted practices of the American people. Id. at 1515 (Scalia, J., dissenting).
180. 447 U.S. 557 (1980).
181. 44 Liquormart, 116 S. Ct. at 1509.
182. Id. at 1521. These Justices further stated that the State's regulation must represent a cost-benefit analysis that weighs the gains of such restrictions against the burden on free speech. Id.
183. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994); Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996). For example, in Turner, the Court remanded a case challenging the federal government's content-neutral regulation requiring cable companies to carry local stations, with instructions that such a restriction be subjected to intermediate rather than strict First Amendment scrutiny, but went on to say that the regulations could be sustained only if the government demonstrated that it was protecting an important interest. Turner, 512 U.S. at 664 (requiring that the government show that "the recited harms are real . . . and that the regulation will in fact alleviate these harms in a direct and material way").
184. Two decisions were classified as public forum cases. See Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (holding that a county could not charge a variable, discretionary public grounds use fee based on the content of the message of the applying organization); United States v. Grace, 461 U.S. 171 (1983) (finding a law prohibiting the display of signs, banners, or other symbols around the Supreme Court building to be unconstitutional). Four decisions were classified as nonpublic forum cases. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 115 S. Ct. 2338 (1995); International Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992); Pacific Gas & Elec. Co. v. Public Utils. Comm'n, 475 U.S. 1 (1986); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S. 788 (1985).
185. Cornelius, 473 U.S. at 868.
186. 475 U.S. 1 (1986).
187. Id. at 20-21.
188. 115 S. Ct. 2338 (1995).
189. Id. at 2343.
190. Id. at 2350.
191. 505 U.S. 672 (1992).
192. See id. at 674-77, 685.
193. See supra text accompanying note 145.
194. See infra app. at tbl. 3-b. Six Burger Court cases were placed in the content subcategory. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986); Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984); Board of Educ. v. Pico, 457 U.S. 853 (1982); New York v. Ferber, 458 U.S. 747 (1982). Seven Rehnquist Court cases were placed in this subcategory. See Capitol Square Review & Advisory Bd. v. Pinette, 115 S. Ct. 2440 (1995); City of Ladue v. Gilleo, 512 U.S. 43 (1994); Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993); Wisconsin v. Mitchell, 508 U.S. 476 (1993); Dawson v. Delaware, 503 U.S. 159 (1992); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991).
195. Pico, 457 U.S. at 856, 882.
196. Bethel Sch. Dist., 478 U.S. at 686. The Court noted that the student was informed in advance by teachers that he should not deliver his inappropriate, sexually graphic speech. Id. at 678.
197. See Arcara, 478 U.S. at 707 (holding that the First Amendment does not prohibit closing of pornographic book store on suspicion of prostitution); Playtime Theatres, 475 U.S. at 54 (finding ordinance limiting location of adult theaters did not contravene the First Amendment); Ferber, 458 U.S. at 764 (holding that child pornography does not enjoy First Amendment protection).
198. See Taxpayers for Vincent, 466 U.S. at 817 (upholding city ordinance restricting placement of signs on public property).
199. This change of policy also explains a related reversal in Court decisions: While the Burger Court rendered decisions favoring local regulations 64% of the time, the Rehnquist Court has done so only 10% of the time, due in large part to its deference to freedom of expression. See, e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 137 (1992) (striking a city ordinance which allowed the government to vary use fees for parade grounds based on the projected cost of maintaining public order in light of the content of the demonstration).
200. See Denver Area Educ. Telecommunications Consortium v. FCC, 116 S. Ct. 2374 (1996). There, the Court held that a portion of a regulation giving local cable operators the choice to prohibit leasing channels for use for broadcasting sexually explicit materials in order to protect children was constitutional as an important government interest, but that two other provisions of the law, requiring (1) that cable operators segregate and block off sexually explicit leased channels, providing those channels only to consumers who contacted the cable company and requested the channels, and (2) that they prohibit patently offensive programming on public access stations, were in violation of the First Amendment. Id. at 2381-82, 2394-97. The Court reasoned that the part of the law allowing cable companies to choose whether or not to restrict leased channels was constitutional because it was permissive, but that regulations requiring segregation and blocking of explicit channels and prohibition of sexually explicit programs on public access would "greatly increase the risk that certain categories of programming (say, borderline offensive programs) [would] not appear." Id. at 2397.
201. 505 U.S. 377 (1992).
202. Id. at 380 (citations omitted).
203. Id. at 388-90 (citations omitted).
204. Id. at 391. The Court, however, was apparently concerned with being accused of condoning a racist action: "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire." Id. at 396; see also Schwartz, A History, supra note 1, at 375 (explaining the R.A.V. decision as a result of the theory that "conservative thought encompasses a libertarian strain").
205. 503 U.S. 159 (1992).
206. Id. at 165.
207. 508 U.S. 476 (1993).
208. Id. at 479. The assailant had been watching the film "Mississippi Burning" and apparently emerged so enraged that he engaged in the attack. Id. at 479-80.
209. Id. at 483-84.
210. Id.
211. Id. at 488.
212. 512 U.S. 753 (1994).
213. The zone was approved except as to areas in which it encompassed private property which did not have to be crossed to reach the clinic. Id. at 771.
214. Id. at 774. ("Absent evidence that the protesters' speech is independently proscribable . . . or is so infused with violence as to be indistinguishable from a threat of physical harm . . . this provision cannot stand.")
215. Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 123 (1991).
216. City of Ladue v. Gilleo, 512 U.S. 43, 58-59 (1994).
217. Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 394-95 (1993).
218. Capital Square Review & Advisory Bd. v. Pinette, 115 S. Ct. 2440, 2446, 2450 (1995).
219. It should be noted, however, that a strong correlation exists between the Rehnquist Court's sympathetic freedom of speech decisions and a similar increase in the number of First Amendment Establishment Clause decisions favoring religious expression. The Burger Court found in favor of religious expression (or, in other words, found no excessive entanglement between church and state) in only 42% of its Establishment Clause cases, while the Rehnquist Court rendered decisions benefiting religious expression 71% of the time. See infra app. at tbl. 2-c. Three of the Rehnquist Court's freedom of speech decisions intersected with the Establishment Clause, and in each case, the Court upheld the right to free expression while finding no impermissible involvement between church and state. See Pinette, 115 S. Ct. at 2447; Rosenberger v. Rector & Visitors of the Univ. of Va., 115 S. Ct. 2510, 2524-25 (1995); Lambs Chapel, 508 U.S. at 394-95. Here, as in its discrimination cases, the Rehnquist Court will not defer to government regulation that might obstruct the activities of the majority.
220. R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992).
221. Pinette, 115 S. Ct. at 2446, 2450.
222. Dawson v. Delaware, 503 U.S. 159, 165 (1992).
223. Wisconsin v. Mitchell, 508 U.S. 476, 488-89 (1993).
224. Girardeau A. Spann, Color-Coded Standing, 80 Cornell L. Rev. 1422, 1484 (1995).
225. See William J. Burnett, Wisconsin v. Mitchell: First Amendment Fast-Food Style, 4 Temp. Pol. & Civ. Rts. L. Rev. 385, 386-89 (1995) (arguing that the Supreme Court had sacrificed the First Amendment in order to address hate crime).
226. See infra app. at tbl. 2-d.
227. See Yale L. Rosenberg, The Federal Habeas Corpus Custody Decisions: Liberal Oasis or Conservative Prop?, 23 Am. J. Crim. L. 99, 100-01 (1995) ("Where once the emphasis was on vindicating individual constitutional rights, [under the Rehnquist and Burger Courts] it is on federalism, finality, factual innocence, and negotiation of a dazzling and dizzying array of technical hoops."); Tom Stacy, The Search for Truth in Constitutional Criminal Procedure, 91 Colum. L. Rev. 1369, 1372 (1991) ("The theme of accurate adjudication lies at the very heart of the Burger and Rehnquist Courts' vision of constitutional criminal procedure.").
228. See Yale L. Rosenberg, The Federal Habeas Corpus Custody Decisions: Liberal Oasis or Conservative Prop?, 23 Am. J. Crim. L. 99, 100-01 (1995) ("Where once the emphasis was on vindicating individual constitutional rights, [under the Rehnquist and Burger Courts] it is on federalism, finality, factual innocence, and negotiation of a dazzling and dizzying array of technical hoops."); Tom Stacy, The Search for Truth in Constitutional Criminal Procedure, 91 Colum. L. Rev. 1369, 1372 (1991) ("The theme of accurate adjudication lies at the very heart of the Burger and Rehnquist Courts' vision of constitutional criminal procedure.").
229. See infra app. at tbl. 3-d.
230. Yale Kamisar, The "Police Practice" Phases of the Criminal Process and the Three Phases of the Burger Court, in The Burger Years 143, 144-45 (Herman Schwartz ed., 1987) ("[P]erhaps because the Court had become convinced that more law-enforcement tools were needed to combat drug traffic, during the 1982-83 term the government gained complete or partial victory in all nine search-and-seizure cases decided that term (all involving drugs).").
231. See infra app. at tbl. 3-c.
232. See Welsh v. Wisconsin, 466 U.S. 740, 754-55 (1984) (holding that warrantless night-time entry into home to arrest man suspected of a nonjailable offense was prohibited); United States v. Johnson, 457 U.S. 537, 562 (1982) (retroactively applying previous Court decision prohibiting warrantless, nonconsensual arrest in suspect's home to declare arrest illegal); see also Schwartz, A History, supra note 1, at 329 ("[T]he anticipated reversals of the key Warren Court precedents did not materialize. Instead, the essentials of the Warren jurisprudential edifice were preserved. . . . [But t]o be sure, they were modified, even narrowed and blunted in some ways."). But see United States v. Hensley, 469 U.S. 221, 232 (1985) (finding sufficient reasonable suspicion in memory of another department's wanted flyer to support stop to check identification and ensuing arrest).
233. See infra app. at tbl. 2-d; see also Pacelle, Dynamics, supra note 15, at 262-63 ("In other areas, such as criminal procedure, the Burger Court was significantly more conservative than its predecessor.").
234. Warren E. Burger, For Whom the Bell Tolls, Remarks to the Association of the Bar of the City of New York (Feb. 17, 1970), in Delivery of Justice 314, 315 (1990).
235. Id. at 316.
236. Stephen A. Saltzburg, The Flow and Ebb of Constitutional Criminal Procedure in the Warren and Burger Courts, 69 Geo. L.J. 151, 155 (1980).
237. See Edward Chase, The Burger Court, the Individual, and the Criminal Process: Directions and Misdirections, 52 N.Y.U. L. Rev. 518, 590 (1977).
238. See Rosenberg, supra note 220, at 99-100 (noting that both the Burger and Rehnquist Courts were "less than kind to Warren Court criminal procedure precedents"); Savage, Legacy, supra note 156, at 8 ("The Burger court [sic] undermined the rights of the accused."). But see Yale Kamisar, The Warren Court (Was It Really So Defense-Minded?), The Burger Court (Is It Really So Prosecution-Oriented?) and Police Investigatory Practices, in The Burger Court: The Counter-Revolution That Wasn't 62, 62-63, 90-91 (Vincent Blasi ed., 1983) (suggesting that the distinctions between the Warren and Burger Courts were based more on fear of what might happen than on the more moderate changes the Burger Court actually made).
239. Savage, Legacy, supra note 156, at 8.
240. Peter Arenella, Foreword: Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts' Competing Ideologies, 72 Geo. L.J. 185, 247 (1983).
241. See Savage, Turning Right, supra note 1, at 317-18 ("When prosecutors lost a case in the lower courts, the Rehnquist Court could be counted on to hear the appeal."); Friedelbaum, The Rehnquist Court, supra note 27, at 129 (describing the Rehnquist Court as eager to erode the value of Warren Court criminal justice precedents).
242. Stanley H. Friedelbaum, Judicial Federalism: Current Trends and Long-Term Prospects, 19 Fla. St. U. L. Rev. 1053, 1076 (1992) [hereinafter Friedelbaum, Federalism]; see Pacelle, Transformation, supra note 13, at 193 (suggesting of the Rehnquist Court in the late eighties that "conservatives on the Court are reaching a critical mass").
243. Savage, Turning Right, supra note 1, at 318.
244. See Louthan, supra note 136, at 222 (noting that the early Rehnquist Court was not "dramatically different" from the Burger Court, remaining conservative in the area of criminal justice); Stacy, supra note 220, at 1370-73 (analyzing the Burger and Rehnquist Courts' criminal justice decisions as a single, continuous jurisprudence).
245. O'Brien, supra note 89, at 995-97.
246. Pacelle, Transformation, supra note 13, at 200.
247. Louthan, supra note 136, at 230-31.
248. See id. at 231 ("The Supreme Court of the 1990s is a Court in transition."); Pacelle, Dynamics, supra note 15, at 272-73 (suggesting that the conservative bloc of the Court would have to moderate its views to woo the emerging moderate bloc). The decisions of the late eighties have been described as decidedly pro-prosecution: A solid conservative majority . . . has given constitutional endorsement to more aggressive police work against criminal suspects . . . . In limited cases . . . sanctioned admission into evidence of coerced confessions and . . . systematically blocked off the federal courts from most constitutional claims of convicted criminals in state prisons. James Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court 172 (1994).
249. See Friedelbaum, The Rehnquist Court, supra note 27, at 129 (describing the 1990 term as reflecting a conservative "activist impetus" calculated to undermine Warren Court criminal law precedents).
250. See Schwartz, A History, supra note 1, at 375.
251. See infra app. at tbl. 3-c. The cases were placed in subcategories based on the major challenge brought by the criminal defendant. The miscellaneous subcategory includes more technical questions such as joinder and evidentiary questions where such issues accounted for two or fewer cases in both eras. For a list of cases organized by subcategory, see infra app. at tbl. 1-d.
252. See infra app. at tbl. 3-c. In sentencing cases, the Rehnquist Court found for the defendant only 16.7% of the time, versus the Burger Court who found for the defendant 37.5% of the time. In search and seizure cases, the Burger Court found for defendant only six percent of the time, versus the Rehnquist Court who found for the defendant 37.5% of the time.
253. See infra app. at tbl. 3-c.
254. See infra app. at tbl. 3-c.
255. See infra app. at tbl. 3-d.
256. See infra app. at tbl. 3-d. As a percent of all criminal law cases, rules and interpretation issues accounted for 42.9% of the Rehnquist Court decisions, but only 30.4% of Burger Court decisions. See infra app. at tbl. 3-d; see also Simon, supra note 240, at 303 ("[T]he Rehnquist Court has heard progressively fewer cases, and in many of their recent decisions the language of the Court majorities has tended to be more technical and less sweeping than in the past.").
257. Id. at 195.
258. For a list of cases by category, see infra app. at tbl. 1-d.
259. Neal v. United States, 116 S. Ct. 763, 769 (1996).
260. Deal v. United States, 508 U.S. 129, 137 (1993).
261. Smith v. United States, 508 U.S. 223, 225-27 (1993).
262. United States v. Wilson, 503 U.S. 329, 334-35 (1992).
263. See infra app. at tbl. 3-c. As indicated, the Rehnquist Court rendered a judgment fully favoring the defendant in only two of fifteen decisions. See Rutledge v. United States, 116 S. Ct. 1241, 1250-51 (1996) (holding that sentence amounted to an improper, cumulative punishment for the same crime); Stinson v. United States, 508 U.S. 36, 47-48 (1993) (holding that the Sentencing Commission commentary is binding in some instances, in this case excluding the defendant's act from its definition of a "crime of violence"). In Koon v. United States, 116 S. Ct. 2035 (1996), the Court reversed in part the lower court's decision overruling downward departure for Stacy Koon, the officer convicted in the beating of Rodney King. Id. at 2054.
264. See infra app. at tbl. 3-c. But see Friedelbaum, The Rehnquist Court, supra note 27, at 141 ("Apart from capital punishment sentencing cases, the future of defendant rights appears to be bleak but not necessarily as disheartening. . . .").
265. 503 U.S. 159 (1992).
266. Id. at 160. For a full discussion of the First Amendment aspects of this case, see supra text accompanying notes 198-98.
267. Id. at 167.
268. Id. at 168-69.
269. Id. at 169 (Blackmun, J., concurring) (indicating that harmless error review would have a "potential chilling effect" on the freedom of speech).
270. 504 U.S. 719 (1992).
271. Id. at 725-26.
272. Id. at 729. Chief Justice Rehnquist and Justice Thomas joined Justice Scalia's dissent, arguing that there should be no restriction against empanelling a juror who would automatically vote for the death penalty on conviction. Id. at 740-43.
273. 512 U.S. 154 (1994).
274. Id. at 156.
275. Sochor v. Florida, 504 U.S. 527, 529 (1992).
276. Cooper v. Oklahoma, 116 S. Ct. 1373, 1384 (1996).
277. Id. at 1384; Sochor, 504 U.S. at 540-41.
278. See supra notes 250-56 and accompanying text; infra part IV.C.2.
279. See infra app. at tbl. 3-d.
280. See United States v. Gaudin, 115 S. Ct. 2310, 2313 (1995); Shannon v. United States, 512 U.S. 573, 578-79 (1994); Victor v. Nebraska, 511 U.S. 1, 5 (1994); Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).
281. See Victor, 511 U.S. at 22-23; Sullivan, 508 U.S. at 281.
282. Gaudin, 115 S. Ct. at 2310.
283. Shannon, 512 U.S. at 584-87.
284. 116 S. Ct. 501 (1995).
285. Id. at 504, 509.
286. Id.
287. See Pacelle, Dynamics, supra note 15, at 254 ("Indeed, there is widespread perception that the Rehnquist Court is interested in reversing or limiting the decisions of the Warren Court."); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197, 205-07 (1993) (arguing that with a few liberal exceptions, the Rehnquist Court will continue to follow the rational basis model established by Burger Court precedent).
288. Pacelle, Transformation, supra note 13, at 198.
289. See Pacelle, Dynamics, supra note 15, at 266 ("The raw numbers mask the substantive nature of [the decline of agenda space allocated to civil liberties], particularly in the Due Process area, in which cases concerned with the rights of prisoners have increased during the past two decades to offset partially the large-scale declines in criminal procedure cases.").
290. See Comiskey, supra note 29, at 262.
291. Smith & Hensley, supra note 13, at 87.
292. See Infra app. at tbl. 3-d. The Rehnquist Court Justices have evinced discomfort with an apparent overreaction to some of its holdings, prompting Justice O'Connor to issue a warning to lower court judges not to be "too hasty in rejecting capital cases" based on Supreme Court rulings. Similarly, Justices Scalia and Kennedy were reportedly clearly disturbed by an argument before them that the Constitution would permit state-sponsored religion as long as no one was coerced into joining. Id.
293. See, e.g., Jennifer L. Hurley, Has the Supreme Court "Wrench[ed] the Sixth Amendment from Its Proper Context?", 24 U. Tol. L. Rev. 967, 991-94 (1993) (describing one Rehnquist Court decision as "the most liberal speedy trial decision to date").
294. See Friedelbaum, The Rehnquist Court, supra note 27, at 133-37 ("Fourth Amendment rights, long objects of controversy and travail in the evolution of criminal law, have been further eroded by a [Rehnquist] Court inclined to read the rights of the accused in austere and unsympathetically literal terms.").
295. See Wilson v. Arkansas, 115 S. Ct. 1914, 1916, 1919 (1995) (requiring consideration of the "knock and announce" rule to determine the reasonableness of the police search under the Fourth Amendment); Minnesota v. Dickerson, 508 U.S. 366, 379 (1993).
296. 508 U.S. 366 (1993).
297. Id. at 379.
298. Id. at 378-79.
299. James B. Zagel, Drug Rhetoric, Courts, and the Law: A Response to Professor Rudovsky, 1994 U. Chi. Legal F. 275, 280.
300. 392 U.S. 1 (1968).
301. See Comiskey, supra note 29, at 262 (noting that there were at least 12 decisions in which the defendant prevailed in the 1991 and 1992 terms after the Rehnquist Court's conservatism "may have peaked in the 1990-91 term").
302. Arizona v. Evans, 115 S. Ct. 1185, 1194-95 (1995).
303. Whren v. United States, 116 S. Ct. 1769, 1777 (1996).
304. Davis v. United States, 512 U.S. 452, 461 (1994).
305. 469 U.S. 221 (1985).
306. Id. at 229.
307. For example, the Rehnquist Court rendered decisions favoring the Federal government in 64% of federal regulation and 69% of taxation cases, a significant decrease from the Burger Court's 78% favorable rate of decision in federal regulation cases and 88% favorable rate of decision in taxation cases. Similarly, the Rehnquist Court markedly decreased the percent of decisions favoring state and local governments, finding for state regulations of individuals only 38% of the time and for local ordinances only 10% of the time. In contrast, the Burger Court ruled in favor of state regulation of individuals 46% of the time and for in local ordinance cases 71% of the time.
308. See Friedelbaum, The Rehnquist Court, supra note 27, at 129 ("Noticeably missing was any effort to pursue a course of moderation and restraint which had served to guide many Burger Court decisions in an era when adherence to the doctrine of stare decisis generally prevailed.").
309. Sentencing cases accounted for 36% of Rehnquist Court and 13% of Burger Court total criminal law cases, while rules and interpretation cases accounted for 43% of Rehnquist Court and 31% of Burger Court total criminal law cases. See infra app. at tbl. 3-d.
310. Smith & Hensley, supra note 13, at 89.
311. Id. at 85. The Warren Court was credited with a 71.4% liberal decision rate. Id.
312. Id. at 89.
313. See supra part II.B.
314. Davis, The American Dilemma, supra note 32, at 640-41.
315. Issacharoff, supra note 123, at 53.
316. David A. Strauss, Affirmative Action and the Public Interest, 1995 Sup. Ct. Rev. 1, 42.
317. See supra parts III.C.2-3.
318. Ed Aro, Note, The Pretext Problem Revisited: A Doctrinal Exploration of Bad Faith in Search and Seizure Cases, 70 B.U. L. Rev. 111, 121 n.70 (1990).