The Meaning of Liberalism/Conservatism on the Mature Rehnquist Court: First Amendment Absolutism and a Muted Social Construction Process

I. Expectations of Constitutive, Not Instrumental, Rehnquist Court Decision-Making

I present evidence from Rehnquist Court First Amendment speech and religion cases from the 1990s to the present. I ask whether these cases of the mature Rehnquist Court support the thesis that the Supreme Court continues to be constitutive in its decision-making and innovative in doctrine as it meets the demands of our more complex and diverse society. I conclude the essay with some thoughts as to why the First Amendment jurisprudence of the mature Rehnquist Court is far more muted than its cases involving privacy, abortion choice, and homosexual rights, and I suggest what we can expect from the Supreme Court in the future.

It was not until the 1991–1992 term that it was possible to begin to decipher the direction that doctrine would take in the Rehnquist Court because it takes a few years for the justices' visions of polity and rights principles — and their application to constitutional questions — to coalesce. It was not until the 1991–1992 term that we have what I will call the mature Rehnquist Court, a Court that consisted of a majority of members representing a new era in American Politics, a post-New Deal era in which a majority of justices were selected by conservative Republican Presidents who began to question many of the assumptions about whether we should have faith in government as compared to economic and social markets as venues of political change.

The landmark decisions of the 1991–92 term of the Supreme Court included cases in which the mature Rehnquist Court did not turn its back on precedent or on the tests and principles that had been developed by the Supreme Court under Chief Justice Earl Warren (1953–1969) and Warren Burger (1969–1986).¹ Evidence from the landmark cases of the 1991–92 term of the Rehnquist Court support the view that it was "constitutive," not simply "instrumental" in its decision-making, as had been the Supreme Court under Chief Justices Warren and Burger.

The basic tenets of the constitutive approach are the following: 1) the Supreme Court does not make its choices instrumentally — that is, it does not choose an outcome and then simply use polity and rights principles to support that outcome; 2) the Supreme Court does not decide cases in ways that are similar to those used by legislative or bureaucratic policy-makers; instead, there is a "constitutive" decision-making process in which members of the Supreme Court engage in a textured and sincere debate about which polity and rights principles are applicable to a case and how to apply them; 3) the Supreme Court is aware of new ideas, scholarship, and methods of problem definition created by the interpretive community, and over time it incorporates these into its decisions; 4) polity principles, such as when to follow precedent, when to trust elected bodies or courts, and when to trust different levels and branches of government to make constitutionally important decisions are as important to Rehnquist Court decision-making in these 1991–92 landmark cases as they were in the Warren and Burger Court eras; and 5) the Rehnquist Court, now dominated by Reagan-Bush appointees, like the Court in previous eras, finds justices protecting their autonomy, and that of the Supreme Court as an institution, from the influence of the President, the majority coalition, and politics directly.²

If justices on the Rehnquist Court are simply instrumental in their decision-making, that is, if they simply follow election returns or their own policy wants or those of the president/ majority coalition that appointed them, and use principles simply to support predetermined policy wants, what might we expect from the Rehnquist Court, which consists of so many members who were selected by conservative Republican presidents? We would expect the Rehnquist Court to reject long-held polity and rights principles and precedents from the Warren and Burger Court eras. Moreover, we would expect few additions to the rights of individuals generally and, most importantly, few additions to the rights of what...