June 21, 2005

Would a Rehnquist Retirement Make A Difference? Yes, in Some Important Areas

The common wisdom is that Chief Justice Rehnquist will retire in June, at the end of this term of the Supreme Court, and that his expected replacement wouldn’t make much difference in terms of the decisions of the Court: after all, President Bush will likely appoint another conservative to fill the seat of Rehnquist, a reliable conservative vote in the closely-divided body.

Others have explained that the first part of this common wisdom may be wrong. We have no good information beyond speculation based on the Chief’s health that he in fact will retire any time soon. But there’s reason to doubt the second part of the common wisdom too. In fact, replacing Rehnquist with even another “conservative” could make a great difference in many areas of the law. True, we likely won’t see a shift in the Court’s position on abortion, for example, an area that is likely to get a lot of attention in any confirmation hearings. Rehnquist doesn’t cast the deciding votes in those cases, and in any case anyone President Bush would appoint to replace Rehnquist is likely to have a similar view on abortion.

But we forget how important each of the nine votes on the Court is. Neither “conservatives” nor “liberals” on the Court are a monolithic bunch, and some issues transcend the conservative/liberal dichotomy.

Take the area I study, election law. Imagine if the Chief were replaced by Tenth Circuit Judge (and former law professor) Michael McConnell, the current "flavor of the month" (or not) among those who are prognosticating about a Rehnquist replacement.  McConnell is a constitutional law specialist, with an emphasis on the religion clauses of the First Amendment. McConnell has written two law review articles on election law topics (one on redistricting and one on Bush v. Gore) and two opeds on campaign finance reform. So there’s some basis to guess how he would decide future election law cases before the Court.

How might a McConnell Court differ on election law cases compared to a Rehnquist Court? First, there’s a much better chance that the Court would put limits on partisan gerrymandering, that is, the ability of legislators to draw strict lines to serve partisan purposes. Last year the Supreme Court split three ways on the topic. Four Justices (including Rehnquist) voted to keep courts out of the area. The four most liberal Justices voted to give courts a newly invigorated role in policing the most egregious partisan gerrymanders. Justice Kennedy, essentially punted, and the issue will be coming back to the Court next term now that a three-judge-court in Texas has rejected the partisan gerrymandering claim of Democrats complaining about the Texas congressional re-redistricting done for Republican advantage.

No one knows what Kennedy will do with the Texas case when it returns, but with a Chief Justice McConnell, it appears that there will be five votes to police egregious partisan gerrymanders even without Kennedy’s vote.

In a 2000 law review article, McConnell wrote that "[p]artisan gerrymandering is designed to entrench a particular political faction against effective political challenge—sometimes even to give a political minority effective control." He strongly suggested it violates a provision of the Constitution known as the "Guarantee Clause." Such a holding could open up a whole new area of election law challenges because the courts have previously treated the Guarantee Clause as a part of the Constitution not to be enforced by the courts. McConnell could similarly vote with the four most liberal judges in getting rid of the "racial gerrymandering" cause of action, which the Court recognized in the 1993 case of Shaw v. Reno. In that same law review article quoted above, McConnell offered the Guarantee Clause as a means to "put an end to the embarrassingly standardless line of cases that began with Shaw v. Reno."

In addition, a McConnell Court would be much more likely to uphold the provisions of the Voting Rights Act that come up for renewal in 2007. These provisions, which require certain states (mostly in the South) to seek "preclearance" from the government before making any changes in voting rules, have been attacked as trampling state’s rights. Since the Rehnquist Court’s federalism revolution, many have believed that these renewed Voting Rights Act provisions could be viewed by the Supreme Court as an unconstitutional exercise of Congressional power. McConnell has been critical of this line of cases, and would be much more likely than Rehnquist to uphold the provisions should the law be renewed and attacked as unconstitutional.

Finally, McConnell seems more willing than Rehnquist to consider upholding novel campaign finance arrangements.In editorials appearing in the 1990s in the Chicago Tribune and the Wall Street Journal, McConnell agreed that the First Amendment limits the ability of the state to limit spending on campaigns, but he wrote that Congress could take steps to prevent the sale of access to politicians by political parties. "Americans have a First Amendment right to do what we can to sway public opinion, but not to buy privileged access to our leaders by giving money to their campaigns." Among the steps he endorsed were time limits for spending campaign contributions and a ban on contributions after election day.

In upholding the McCain-Feingold law, the Supreme Court by a 5-4 vote agreed that Congress did not violate the First Amendment in crafting some far-reaching laws aimed at preventing the sale of access to elected officials. Rehnquist was in the minority on this point, so a switch from Rehnquist to McConnell would not change Court doctrine. But it would solidify the moderately pro-campaign finance regulation position on the Court, particularly if Justice O’Connor were the next Justice to leave the Court—she was part of the 5-Justice majority upholding the major provisions of McCain-Feingold.

This little parochial exercise in my area of the law is meant to prove a simple point: Whoever comes next on the Supreme Court will have a great deal of power, with a chance to change and influence the law in many areas that most Americans don’t even think about. That’s true even if a non-controversial candidate of the same political orientation is confirmed to replace a retiring Justice.

Posted by Rick Hasen at June 21, 2005 11:40 AM