May 12, 2005

Scholar looks at Rehnquist court

By Pat Vaughan Tremmel

John McGinnis, a professor at the School of Law who served as a deputy assistant general at the U.S. Department of Justice under Edward Meese and William Barr, is among the leading scholars keeping a close eye on the Rehnquist court.

His interest in the subject is especially pertinent as the U.S. Supreme Court term winds down and speculation increases about whether Chief Justice William Rehnquist will retire.  

McGinnis’ scholarship on the subject includes a conference he convened in 2004 on the Rehnquist Court. He brought together other leading scholars — professors Steven Calabresi and Stephen Presser — to engage in a sharp debate about the legacy of the court.

The scholars’ papers, published in the 2004 Northwestern University Law Review, focused on the Rehnquist Court’s principal legacies, including federalism and changing church and state law. The scholars also addressed whether the court is relegating too much power to itself.

“In terms of constitutional law, the court reflects the change in social thought at the end of the 20th century,” McGinnis concluded in an interview. “It gives less authority to centralized institutions, like the federal government, and more to local government and private institutions to create the social norms by which we live.”

In other words, the court has begun to advance federalism significantly, giving more powers to states and forcing them to compete in making social norms, he said. More power also has been given to religious organizations, contributing to the new decentralized order that the court is creating in constitutional law.

“The school vouchers case is an excellent example,” McGinnis said. “States can now give money to religious schools, both private and public, creating competition for the next generation. Nothing can be more important than the values individuals hold. Rather than giving the government the most power, the court is allowing competition.”

McGinnis believes the court made dramatic changes in a number of areas of doctrine and set the stage for further changes if more like-minded judges fill vacancies.