In a review< /a> of Mark Tushnet's new book on the Rehnquist Supreme Court, Cass Sunstein makes a very cogent observation about the current Court:
Tushnet does not adequately defend his central claim, which is that the division on the Rehnquist Court reflects a split between old and new Republicans. I believe that the split lies elsewhere. Tushnet thinks that the traditional Republicans favor less economic regulation without being social conservatives, whereas the new Republicans are conservative on both economic and social issues. But it is not easy to show that affirmative action, abortion, and gay rights were favored by some older generation of Republicans. Many of the current divisions in the Republican Party involve a split between the libertarians, who favor free markets and also privacy rights of various sorts, and the more powerful Reaganites, who favor free markets but also have sympathy with the religious right and hence distrust privacy rights. O'Connor and Kennedy have some libertarian inclinations, but they are hardly libertarians. In any case, many contemporary Republicans are moderate on both economic and social issues (Christine Whitman, Rudolph Giuliani, George Pataki). In short, it is not easy to map divisions in the Republican Party onto the Rehnquist Court.
My own view is that the real divisions in the Rehnquist Court involve two radically different approaches to constitutional law. In a nutshell: O'Connor and Kennedy are incrementalists, reluctant to make large-scale changes in existing understandings of the law. Scalia, Thomas, and (to a lesser extent) Rehnquist are legal fundamentalists, or "movement judges," eager to insist on the supremacy of their own view of the Constitution, whatever the precedents say.
I think that's basically right. Scalia and Thomas, in particular, are best understood as advocates of the so-called "dead constitution." Advocates of a "living Constitution" are really advocating a legal regime in which the law is whatever 5 out of 9 old men and women in robes say it is (or, in Charles Krauthammer's memorable phrase, "The Constitution is whatever Sandra Day O'Connor says it is. On any given Monday.").
I gather that Tushnet and Sunstein prefer a "living Constitution." As for me, I'm with Scalia and Thomas. I like my constitutions stone cold dead.
In any case, even though I disagree with them about most everything, both Tushnet and Sunstein are very smart guys whose analysis deserves to be read not only by their fellow leftists but also by those of us right of center. Go check them out.
