The Next Chief Justice

June 2005 issue -- Justice Sandra Day O’Connor’s announcement of her retirement from the Supreme Court took by surprise most Court-watchers, who expected Chief Justice William Rehnquist to be the first justice to retire during George W. Bush’s presidency.

In nominating successors to O’Connor and, eventually, Rehnquist, President Bush has the opportunity to help fulfill the pledge he took, in his oath at his second inaugural, to “preserve, protect, and defend the Constitution of the United States.” What the Constitution needs most to be protected from today, ironically, is the very institution that most Americans trust to defend it: the U.S. Supreme Court.

For most of the past one hundred years, the Court has grossly misinterpreted the Constitution, failing to enforce some of its basic provisions for limiting governmental powers—a situation that threatens to make the Constitution fail to function in the essential way intended by its framers. The next chief justice may not be able to reverse this dangerous trend—there is only so much that one justice, even the chief, can do—but the person appointed by Bush (if confirmed by the Senate) ought to be able to effectively build upon the positive precedents set by the Rehnquist Court in restoring the Constitution to its proper place in the American system of government.

THE HISTORIC ROLE OF CHIEF JUSTICE

A chief justice of the United States does more than merely preside over the Court. The chief justice must be an able administrator, because his office heads not only the nine-justice Court but also the entire federal judicial system. In heading the Court, the chief (if in the majority on any given case) determines which justice will write the opinion of the Court. And, most importantly, the chief provides intellectual leadership for the Court: he gives the Court a direction which, for better or worse, will characterize the decisions his Court makes.

Historically, chief justices have helped shape the tenor of the Courts they led. John Marshall, the third chief justice (and probably still the most famous), was a Federalist politician who led the Court in a nationalist direction consistent with his partisan views. The Marshall Court generally expanded the scope of national government powers, taking an expansive view of Congress’s powers enumerated in the Constitution; it also restricted the scope of state government powers, vigorously enforcing the limits imposed on them by the Constitution. After Marshall’s death in 1835, a president with very different political views—Andrew Jackson, a radical Jeffersonian who believed in a strict interpretation of the Constitution—appointed a new chief justice, Roger Taney, who shared Jackson’s constitutionalism. The Taney Court, without reversing any key precedents set by the Marshall Court, set a new direction by reemphasizing state autonomy—for example, with regard to the regulation of commerce. Unfortunately, the Taney Court also helped contribute to the chain of events leading to the Civil War with its controversial decision in the Dred Scott case: in an opinion written by Chief Justice Taney, the Court sided with Southern slave-owners and ruled that Congress could not exclude slavery from the western territories—which is still the most infamously activist decision the Court ever made.

The Constitution needs protection from the Supreme Court.

In the modern era, chief justices have continued to help shape the character of the Courts they led. Earl Warren, a politician with no judicial experience, acted more like a statesman than a jurist when he wrote the opinion for the Court in Brown v. Board of Education (1954). Knowing that a decision ordering racial desegregation of the nation’s public schools would be controversial and met with strident opposition, particularly in the South, Chief Justice Warren worked hard behind the scenes to obtain unanimity among the justices, in order to strengthen the decision’s credibility. His opinion for the unanimous Court, which concluded (on the basis of dubious psychological studies) that segregated schools were “inherently unequal” was short—not only in pagination but also in legal reasoning—but nevertheless sufficient to unify the justices. Warren the politician knew that a better-reasoned opinion, which would have applied the Constitution’s Equal Protection Clause to bar other forms of racial segregation, would have resulted in a divided Court.

Under Warren’s leadership, during the years 1953 to 1969, the Court broadened its interpretation of many of the Constitution’s rights provisions: among them, the First Amendment’s religion and free speech/free press clauses, the Fourth Amendment’s prohibition of unreasonable searches and seizures, the Fifth Amendment’s privilege against self-incrimination, and a criminal defendant’s right to counsel under the Sixth Amendment. The Warren Court’s broad interpretation of these provisions led it to take a jurisprudential approach that critics have called “activist.” When used disparagingly, in this sense, the term activist generally refers to judges who decide cases according to their own subjective values rather than objectively following neutral principles of law and constitutional interpretation. Activist jurisprudence is result-oriented, focused on reaching the particular results, or outcomes, that judges desire in particular cases. Critics of the Warren Court, with some justification, accused the Court of “liberal” judicial activism in its controversial decisions—for example, banning official prayers in public schools (Engel v. Vitale [1962]), insulating newspapers from defamation lawsuits (New York Times v. Sullivan [1964]), and mandating procedures police must follow when interrogating suspects under their custody (Miranda v. Arizona [1966]).

When President Richard M. Nixon nominated Warren Burger to succeed Earl Warren as chief justice in 1969, he sought to change the direction of the Court. Although President Nixon had joined the critics of the Warren Court in assailing its perceived liberal activism—particularly in its decisions like Miranda that had broadened the scope of accused criminals’ rights—he was not successful in fundamentally changing the Court, despite his opportunity to appoint three other “law and order” justices in addition to Chief Justice Burger. The Burger Court was only slightly more “conservative” than the Warren Court; although frequently divided, it generally tended to continue rather than to reverse key decisions of the Warren Court. Indeed, in some ways the Burger Court expanded upon Warren Court precedents. For example, it broadened its interpretation of the Equal Protection Clause by applying it against laws that discriminated on the basis of sex as well as race, and it extended the Court’s controversial protection of a constitutional “right to privacy” from a married couple’s right to use contraceptives (Griswold v. Connecticut [1965]) to a pregnant woman’s right to obtain an abortion (Roe v. Wade [1973]). It is telling that one of the Nixon “law and order” appointees, Justice Harry Blackmun, authored the Burger Court’s majority opinion in Roe and, by the time he retired in the 1990s, was one of the Court’s most “liberal” members.

With his appointments, President Ronald Reagan was more successful in moving the Court in a more conservative direction. On Warren Burger’s retirement in 1986, he nominated as his successor Justice William Rehnquist, the most jurisprudentially consistent conservative among the Nixon appointees; he also nominated Antonin Scalia to succeed Rehnquist as an associate justice. As discussed below, the Rehnquist Court, although frequently divided, in some ways has been a conservative antithesis to the Warren Court.

SEVENTY YEARS OF CONTEXT-DROPPING

Although most conservative critics of liberal judicial activism aim their ire at the Warren Court’s decisions broadly protecting certain individual rights, the true origins of liberal judicial activism on the Supreme Court—that is, of judicial activism influenced by left-liberal political policies—can be traced to the so-called “Progressive era” of the early twentieth century and to such “progressive” justices as Oliver Wendell Holmes Jr. and Louis Brandeis. Justices Holmes and Brandeis, who frequently joined in dissent in the Court’s decisions in the early 1900s, followed their own political views in interpreting the Constitution. For example, they would have the Court invalidate laws restricting freedom of speech, protecting the rights of anti-war protestors during World War I, but they would not have the Court invalidate laws restricting economic freedom, refusing to recognize the freedom of employers and employees to freely bargain over the terms of their contracts.

Liberal activist views were held by only a minority of the justices until the critical year 1937, when the Court underwent what most constitutional historians call the “New Deal Revolution.” Prior to 1937, the Court—rather inconsistently and often by a narrow five to four margin—struck down as unconstitutional various laws, both state and federal, that had expanded government power in unprecedented ways. When President Franklin Roosevelt was elected to a second term in 1936, he viewed his reelection as a popular sanction for his personal war against the Court, which he criticized for thwarting his so-called “New Deal” legislation.

Under FDR, the Court ceased to protect contracts.

Although Roosevelt’s plan to “pack” the Court with pro–New Deal justices failed—it was so blatantly an attempt to undermine the independence of the Court that even some of FDR’s strongest supporters were embarrassed by it—he eventually won. Starting in 1937, with Chief Justice Charles E. Hughes and Justice Owen Roberts (the two “moderate” swing votes on the Court) shifting their positions in favor of New Deal legislation, the Court seemed no longer to oppose the president. (Although many people have called the 1937 shift “the switch in time that saved nine,” suggesting that the Court responded to the political pressure of FDR’s Court-packing plan, most constitutional historians have concluded that the Court changed of its own accord: the key cases in which Hughes and Roberts had changed their votes were decided before FDR announced his plan.) Roosevelt did not have to pack the Court by adding more justices—within a few years, he was able to transform the Court through the normal process of appointing new justices as the old ones died or retired. By the time the United States entered World War II, the Court consisted almost entirely of Roosevelt appointees; and given the forgettable nature of the chief justices who succeeded Hughes (Harlan Stone and Fred Vinson), the Court in the 1940s frequently is called simply “the Roosevelt Court” by many historians.

The “New Deal Revolution” had two aspects, both involving the Court’s abdication of its historic role in enforcing constitutional limits on the powers of government. One aspect involved the Court’s abandonment of a constitutional right that it had protected as fundamental for forty years prior to 1937: liberty of contract. This was an important aspect of the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments: it protected the freedom of individuals to enter into contracts, with both sides free to bargain over the terms of the contracts. Thus, the Court had invalidated such unconstitutional abridgements of this liberty as laws that fixed the wages or hours of workers, laws that prohibited parents from having their children educated in parochial schools, and laws that prohibited homeowners from selling their houses to persons of a different race. Starting with its decision in West Coast Hotel v. Parrish (1937), however, the Court declared that it would no longer invalidate laws that deprived persons of economic liberty or property rights if the laws had any “rational basis.” The Court did not stop invalidating, under the Due Process Clauses of the Constitution, laws that interfered with liberty; however, it became selective with regard to what aspects of liberty the justices regarded as fundamental. Economic liberty and property rights generally were no longer seen by the majority of the justices as fundamental rights. In practice, this meant that the Court would uphold virtually any governmental regulation of business.

The consequence of this first aspect of the “New Deal Revolution” is that the Court is very inconsistent in its protection of individual rights. In another landmark decision from 1937, Palko v. Connecticut, the Court addressed the question whether the Fourteenth Amendment’s Due Process Clause “incorporated” the federal Bill of Rights: in other words, whether the specific rights enumerated in the first eight amendments of the Constitution as protections against the federal government also were part of the “liberty” protected against state government deprivation by the Fourteenth Amendment. The Court adopted the doctrine of “selective incorporation,” deciding that some of these rights—among them, First Amendment freedom of speech and press and some of the rights of the accused protected under the Fifth and Sixth Amendments—were so fundamental as to be incorporated into the Fourteenth, while other rights—for example, the Second Amendment right to firearms or the Seventh Amendment right to a jury trial in civil cases—were not. Needless to say, the doctrine of selective incorporation is not warranted either by the text of the Constitution or by evidence of the original meaning of the Fourteenth Amendment (which indicates it was meant to protect all of an individual’s fundamental rights, including every provision of the Bill of Rights, against the states).

The result of the Court’s inconsistent protection of individual rights is what even defenders of post-1937 jurisprudence recognize as a “double standard” in constitutional law. It is also an illustration of the judicial activism of the “Roosevelt Court”: justices sympathetic to New Deal–type government regulations of business activities—and who accordingly did not view economic liberty as an important right—invariably upheld those regulations under the West Coast Hotel minimal “rational basis” test. However, when government abridged other aspects of liberty or other rights favored by the justices, they would apply more stringent tests for the constitutionality of these laws. The Court formally adopted this double standard in its decision in United States v. Carolene Products (1938), a case famous for one footnote in Justice Stone’s opinion for the Court: while the decision upheld a federal law regulating certain food products in interstate commerce, the caveat Stone inserted in his Footnote 4 declared that the Court would follow “more exacting standards of judicial scrutiny” if the laws affected certain other rights. Following this double standard, Justice Robert Jackson (one of the Roosevelt appointees) during World War II would write opinions for the Court upholding federal agricultural regulations (Wickard v. Filburn [1942]) but striking down a state law compelling schoolchildren to salute the U.S. flag (West Virginia Board of Education v. Barnette [1943]). For Jackson, the freedom of farmers to determine the amount of crops they grew was not as fundamental as the religious freedom of Jehovah’s Witnesses and others who had conscientious objections to flag-saluting, although, objectively speaking, both aspects of freedom are equally important.

The second important aspect of the New Deal Revolution was the Court’s abandonment of any serious effort to limit the scope of Congress’s powers under the Constitution. Prior to 1937, the justices attempted to preserve federalism—the Constitution’s design of dividing governmental powers between the national government and the states—by drawing clear lines marking limits on congressional powers, particularly the Article I, Section 8 powers to levy taxes (and with it, the power to spend tax revenues) and to “regulate commerce among the several States.” The Court held, for example, that Congress did not have the power to regulate child labor (Hammer v. Dagenhart [1918] and Bailey v. Drexel Furniture Co. [1922]), to set standards for the poultry industry (Schechter v. United States [1935]), to control agricultural production (U.S. v. Butler [1936]), or to regulate wages and working conditions in the coal industry (Carter v. Carter Coal Co. [1936]). In a series of key decisions in the year 1937, however, the Court declared it would no longer try to delineate Congress’s spending or commerce powers. Upholding federal labor legislation, for example, the Court declared that Congress’s power under the Interstate Commerce Clause was not limited to regulating goods that actually crossed state lines; rather, it could extend to all activities that affected interstate commerce, however indirectly (NLRB v. Jones & Laughlin Steel Corp [1937]). And in its infamous 1942 decision in Wickard v. Filburn, the Court upheld the Agricultural Adjustment Act of 1938, affirming a penalty that the secretary of agriculture had assessed on an Ohio farmer for growing too much wheat—an amount in excess of the federal allotment—even though the wheat was grown for his own family's consumption. The Court’s theory was that the wheat farmer’s actions, when aggregated with similar actions by other wheat farmers, had a significant, albeit indirect, effect on the national market for wheat. Under this rationale, Congress had the power to regulate even non-commercial activities that might, if aggregated, have a substantial impact on interstate commerce.

Conservatives and liberals today are alike guilty of misinterpreting the Constitution.

When the Court opened the floodgates to congressional powers, it also eviscerated the Tenth Amendment. That amendment, the capstone of the Bill of Rights, was regarded by Thomas Jefferson as “the foundation of the Constitution,” for it affirmed the essential constitutional principle that the national government created by the Constitution was one of limited powers, enumerated in the text; all other powers were “reserved to the States respectively, or to the people,” as the amendment provides. In many of its pre-1937 decisions limiting federal powers, the Court cited the Tenth Amendment as its framers intended it: a rule of construction requiring judges to interpret congressional powers sufficiently strictly to reserve traditional “police powers” to the states. After 1937, however, the Court ceased trying to enforce the Tenth Amendment as a real limit on federal powers. The justices dismissed it as merely “a truism,” reserving to the states whatever powers Congress does not exercise, as the Court declared when it unanimously upheld the Federal Fair Labor Standards Act of 1938 (U.S. v. Darby [1941]).

Today, conservative critics of left-liberal judicial activism, by focusing their wrath on the Warren Court, often overlook the far more egregious judicial activism of the Roosevelt Court. Indeed, they frequently join left-liberals in decrying the Court’s pre-1937 protection of economic liberty and property rights as “activist.” Lochner v. New York (1905), for example, is frequently regarded by conservatives and liberals alike as epitomizing “laissez-faire constitutionalism,” in which the majority of the justices read into the Constitution the libertarian philosophy of classical liberal thinkers like Herbert Spencer, as Justice Holmes asserted in his dissent—notwithstanding the fact that the Court’s opinion relied on traditional constitutional principles limiting government’s “police powers” and protecting individual rights evenhandedly in all their aspects, including economic liberty and property rights. When the justices protected liberty of contract as a fundamental right prior to 1937, they neutrally applied objective principles of constitutional law; however, when they abandoned liberty of contract and instead adopted the double standard for the protection of individual rights after 1937, they tended to follow a philosophy that favored government regulation of economic activity. For example, in his opinion for the Court in West Coast Hotel, Chief Justice Hughes decided that laws setting minimum wages for female workers were “reasonable” because they protected “defenceless” workers from “exploitation” by “unscrupulous and overreaching employers”—policy assumptions belied by the actual history of such legislation, which shows that instead of “protecting” women, the laws were designed to keep them out of the workplace. Yet, unaware of this history, most scholars naively believe the pro–New Deal justices followed judicial restraint, deferring to the judgment of the legislature; in fact, they were far more truly activist than their anti–New Deal counterparts.

As a result of both sides of the New Deal Revolution—adoption of a double standard in the protection of individual rights and rejection of meaningful judicial review of congressional powers—the left-liberal constitutionalism of the modern, or post-1937, period is a hodgepodge of artificial rules, each of them peculiar to particular provisions of the Constitution. Thus, for example, not only does the First Amendment have a jurisprudence of its own, but each of its separate provisions—the free speech/free press clauses and the religion clause, which is treated as if it were two different, and often opposed, clauses, the so-called “Establishment Clause” and the “Free Exercise Clause”—has its own sets of standards, or tests, for assessing the constitutionality of laws that appear to abridge these rights. And, to cite another example, in enforcing the Equal Protection Clause of the Fourteenth Amendment, the justices follow different levels of review based on the type of discrimination they discern in the laws at question: “strict scrutiny” review for racial discrimination, “intermediate scrutiny” for sex-based discrimination, and mere “rational basis” review for other types of discrimination. These peculiar rules, wholly created by the justices themselves and not at all warranted by the text of the Constitution, are what students in modern American law schools study as “constitutional law”: not the Constitution itself, or its principles, but rather the artificial rules created by the Supreme Court.

Conservatives and liberals today are alike guilty of misinterpreting the Constitution and of following the logical fallacy that Ayn Rand identified as “context-dropping.” In a 1973 essay, “Censorship: Local and Express,” Rand criticized the Court’s decisions in the so-called “obscenity cases” by noting, among other things, that Chief Justice Burger had assumed the legitimacy of federal anti-obscenity laws by quoting from a post-1937 decision in which the Court had held, "the nature and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts have no control." As Rand observed, "This is an outrageous instance of context-dropping: the Constitution, taken as a whole, is a fundamental restriction" on government's legislative power.

In interpreting the Constitution, justices of the Supreme Court—both liberal and conservative—are guilty of “context-dropping” in two ways. First, they fail to consider the meaning of a given provision of the Constitution in the context of the document as a whole. By doing this, they fail to adhere to a basic canon of legal interpretation that instructs judges to interpret specific provisions in a way that gives meaning to the other provisions in a document. Second, by failing to consider the full context of a given provision, the justices also fail to consider the background context of the Constitution as a whole: its essential purpose, which as Rand noted, is to limit the powers of government and to protect the rights of individuals.

If the justices were to interpret the Constitution contextually, they would follow certain rules of interpretation that are quite different from the artificial rules of modern constitutional law. Among other things, they would draw a basic distinction between power-granting clauses (like the Commerce Clause) and power-limiting, or rights-guaranteeing, clauses (like the provisions of the Bill of Rights or the Fourteenth Amendment), interpreting the former rather strictly (as the Tenth Amendment commands) but the latter more broadly (as the Ninth Amendment—and the philosophy of rights understood by the Constitution’s drafters—would require). They also would take more seriously fundamental structural devices found within the Constitution for limiting governmental power, devices such as federalism and the separation of powers.

THE LEGACY OF THE REHNQUIST COURT

In making its appointments to the Supreme Court and other federal courts, the Reagan administration sought to promote what former attorney general Edwin Meese called “a jurisprudence of original intention.” Criticizing the judicial activism of the Warren and Burger Courts as “a chameleon jurisprudence” and “a jurisprudence of political results,” Meese called for judges to adopt “a jurisprudence faithful to our Constitution” by following the language of the text as closely as possible and, when the text is unclear or ambiguous, following the meaning of the Constitution’s framers, at least “where there is a demonstrable consensus among the framers and ratifiers.” The Reagan administration’s emphasis on originalism in constitutional interpretation, although controversial in the 1980s, has become part of the mainstream in the debate over constitutional interpretation today. Indeed, some scholars have argued that virtually all sides in today’s debate over interpretation accept the legitimacy of originalism, in some form: it is telling, for example, that at the height of the debate over President Bill Clinton’s impeachment in 1998–99, his left-liberal supporters cited originalist sources, including the Federalist Papers, in arguing for a narrow standard for impeachable offenses.

The Rehnquist Court has fallen short of full originalism.

Reagan’s appointees to the Court—Justices Sandra Day O’Connor, Scalia, and Anthony Kennedy, as well as Chief Justice Rehnquist himself—together with one of the elder President George Bush’s appointees, Justice Clarence Thomas (the most originalist of the justices on the Court today), have constituted a five-justice majority that has shaped the more conservative legacy of the Rehnquist Court. Although the Rehnquist Court has fallen short of a consistent application of originalist principles to constitutional law—and indeed has fallen far short of following anything like a true contextualist approach to the Constitution—it has, in many respects, reacted against the left-liberal judicial activism of its predecessors, the Warren and Burger Courts. In doing so, the Rehnquist Court has challenged both sides of the post-1937 “revolution” in constitutional law, beginning the process of restoring an older jurisprudence more faithful to the Constitution.

One of the important ways in which the Court has done this is in emphasizing certain kinds of individual rights that, although named in the Constitution, have been given short shrift under the double standard of left-liberal constitutionalism. Chief among these are property rights, protected explicitly through the Due Process Clauses of the Fifth and Fourteenth Amendments as well as the so-called “Takings Clause” of the Fifth Amendment. The latter, which had been considerably weakened by a long series of twentieth-century Court decisions, was given new life by a decision in the mid-1990s that certain forms of local government regulation of land uses constituted an uncompensated “taking” of the land, in violation of the Fifth Amendment (Dolan v. City of Tigard [1994]).

In addition to reviving judicial protection of property rights, the Rehnquist Court also has revived, at least partially, the Tenth Amendment as a limitation on federal powers. In doing so, the Court has adopted what some scholars have called the “New Federalism.” Although falling short of pre-1937 jurisprudence that relied on the Tenth Amendment as itself a general limit on the scope of Congress’s powers, the Court has applied the amendment to declare unconstitutional federal laws that coerced the states (for example, New York v. United States [1992], which struck down a federal environmental law that attempted to force the states to take certain actions with regard to low-level radioactive wastes)—thus using the Tenth Amendment to protect what O’Connor has characterized as the “residuary and inviolable sovereignty” of the states.

More significantly, in two key decisions in the past decade, the Court has declared—for the first time since 1937—that Congress exceeded the scope of its powers under the Commerce Clause. In its 1995 decision in United States v. Lopez, the Court declared unconstitutional a federal "Gun-Free School Zones" law that prohibited possession of firearms within a certain distance of school buildings. In his opinion for the Court, Rehnquist rejected the theory that Congress could regulate any activity, even non-commercial activity (such as the mere possession of a gun), which might indirectly affect national commerce. Five years later, in United States v. Morrison, the Court held unconstitutional a provision in the Violence Against Women Act that allowed women who were the victims of physical abuse a special right to sue in federal court. Again, the majority held that the activity being regulated by Congress was insufficiently related to commerce to fall under Congress's Commerce Clause power.

YET STILL A DIVIDED COURT

Both Lopez and Morrison decided by a close five to four vote, with Rehnquist and the four other “conservatives” on the Court (the three other Reagan appointees, O’Connor, Kennedy, and Scalia, together with Thomas) in the majority, but with the Court’s four “liberal” justices in dissent: Justice John Paul Stevens, appointed by President Gerald Ford, together with Justice David Souter, the other appointee of the elder President Bush, and Justices Stephen Breyer and Ruth Bader Ginsburg, the two Clinton appointees. These dissenting justices accepted the orthodoxy of post-1937 liberal constitutionalism: that Congress has plenary powers under the Commerce Clause that the Court cannot delineate. For example, in his dissenting opinion in Lopez, Souter noted that in the years since 1937 the Court’s “deference to the legislative policy judgments on commercial regulation became the powerful theme under both the Due Process and Commerce Clauses” with the Court’s adoption of the rational basis test as the standard of review. According to Souter, the majority’s attempt to limit the scope of Congress’s commerce power was a “misstep,” inconsistent with modern constitutional law.

Souter’s comments illustrate the fragility of the Rehnquist Court’s New Federalism, not only in terms of the five to four margin of the justices’ vote but also in terms of the rationale underlying the majority decision. In his opinion for the Court in both cases, Rehnquist attempted to limit Congress’s Commerce Clause powers while still adhering to the post-1937 “substantial effects” test, coupled with the aggregation principle of Wickard v. Filburn. Of all the justices on the Court today, only one—Thomas—in his separate concurring opinions in both Lopez and Morrison, has recognized that the Court needs to reconsider its entire Commerce Clause jurisprudence. "If we wish to be true to a Constitution that does not cede a police power to the Federal Government, our Commerce Clause's boundaries simply cannot be ‘defined'" as the Court has defined them, Thomas noted in his Lopez concurrence. "Such a formulation of federal power is no test at all: it is a blank check."

Thomas’s comments ten years ago were prescient, for they anticipated one of the Rehnquist Court’s most recent decisions, on June 6, 2005, in the medical marijuana case, Gonzales v. Raich. In that decision, two of the justices—Kennedy and Scalia—from the five-justice majority in Lopez and Morrison joined the four liberal dissenters from those cases in comprising a six-justice majority that upheld application of federal anti-drug laws even to persons using homegrown marijuana for medicinal purposes under the sanction of state law. Only three justices—Rehnquist, joining the dissenting opinions of O’Connor and Thomas—took the view that such medical uses of marijuana were beyond the scope of Congress’s regulatory power under the Commerce Clause. In his dissent, Thomas repeated his prior warnings that the Court’s “substantial effects” test was a “rootless and malleable standard” at odds with the constitutional design. Noting that the two California women “use marijuana that has never been bought or sold, that has never crossed state lines, and that has no demonstrable effect on the national market for marijuana,” Thomas concluded: “If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers.”

Thomas is the most jurisprudentially consistent justice.

The Rehnquist Court’s New Federalism is not the only part of its jurisprudence that is based on a slim five to four majority; so too is its revival of property rights and other aspects of its “conservative” constitutionalism, such as its decisions invalidating “affirmative action” programs that used racial preferences not justified under a strict scrutiny standard (see Richmond v. Croson [1989] and Adarand v. Pena [1995]). Moreover, the five-justice conservative majority is not a consistent one. O’Connor and Kennedy, the more moderate “swing” votes among the Court’s conservatives, frequently join, either separately or together, the Court’s liberal justices, often perpetuating liberal judicial activism. For example, both O’Connor and Kennedy have joined Souter in forming a three-justice plurality that, in abortion cases like Planned Parenthood v. Casey (1992), has kept alive Roe v. Wade’s basic holding that includes abortion among the constitutionally protected privacy rights while changing the standard for review to an “undue burden” test. O’Connor wrote the key opinions in the Court’s 2003 decisions in the University of Michigan affirmative action cases, upholding certain uses of racial preferences notwithstanding the Court’s previous decisions. Kennedy wrote the opinion for the Court in Lawrence v. Texas (2003), invalidating the Texas law criminalizing sodomy, and he also wrote the key opinion in the decision from this term invalidating application of the death penalty to juveniles, under a broad reading of the Eighth Amendment.

Thomas is the most jurisprudentially consistent justice on the Court today. His consistent devotion to originalism and to the text of the Constitution sometimes puts him on the same side as the liberals on the Court, for instance, when interpreting rights provisions such as the Eighth Amendment’s clause on excessive fines or the Fourth Amendment’s protection against unreasonable searches and seizures. When Thomas parts company with the conservative justices, especially Scalia, he reveals a jurisprudence that seems more libertarian than conservative.

BUILDING ON THE CONSTITUTIONAL REVIVAL

To help preserve the Rehnquist Court’s legacy reviving certain key constitutional principles, President Bush must do more than merely replace Chief Justice Rehnquist with another jurisprudential conservative. As a practical matter, he also will need to replace at least one other justice—preferably one of the four liberals, such as Stevens, who as the Court’s oldest justice may have health problems second only to Rehnquist’s—in order to help solidify the Court’s revival of conservative constitutionalism. Ideally, however, Bush will nominate someone who is not an ordinary conservative, in the mold of Rehnquist: someone who adheres to constitutional principles such as federalism out of mere devotion to American constitutional tradition. Rather, Bush ought to nominate someone who grounds his or her jurisprudence in something more objective: in originalism, rightly understood, or better yet, in a contextual understanding of the Constitution. In other words, the next chief justice of the Supreme Court ought to be someone capable of leading the Court in a principled reaction against the “New Deal Revolution” of 1937 and the damage it wrought on the Constitution as an effective limit on the powers of government, particularly the federal government.

If Bush looks within the Court for a new chief justice, he could do no better than choosing Clarence Thomas. More than any other justice currently on the Court—indeed, more than any justice who has sat on the Court for the past fifty years—Thomas understands the importance of interpreting power-granting clauses, such as the Commerce Clause, in a manner consistent with the full context of the Constitution, including the Tenth Amendment. Unlike other conservatives on the Court, moreover, Thomas understands that the Tenth Amendment does more than simply preserve so-called "states' rights." He correctly understands it as a rule of interpretation limiting the scope of federal powers. Admittedly, Thomas is far from perfect. He does not as fully appreciate the importance of context when it comes to interpreting the rights-guaranteeing provisions of the Constitution. Although he can be quite libertarian in his broad reading of certain enumerated rights, he shares with the other conservatives on the Court an aversion to giving broad protection to the unenumerated rights guaranteed under the Ninth Amendment and to the general right to liberty under the Due Process Clauses of the Fifth and Fourteenth Amendments, as his dissenting opinion in Lawrence v. Texas revealed. Nevertheless, Thomas is the only possible candidate for chief justice who truly understands the importance of context in constitutional interpretation—at least insofar as it applies to the Constitution’s power-granting clauses—and thus the only candidate who could help lead the Court away from its “context-dropping” errors.

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