Law Professor Takes Serious Look At Rehnquist Court

John McGinnis

John McGinnis, a professor at Northwestern University 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 at the law school to engage with him 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 principle 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 that 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 imminent vacancies. The ultimate impact also will depend on the actions of the popularly elected branches.

“The religion clause, for example, will depend on what the states do,” he said. “Vouchers are permitted, not required, and a lot will depend on how states and private institutions exercise that option.”

The papers published in The Northwestern University Law Review were presented at the Rehnquist conference in three panels, on the structural Constitution, the Bill of Rights and administrative and civil law. 

McGinnis’ paper, written with Ilya Somin, is titled: “Federalism vs. States’ Rights: A Defense of Judicial Review in a Federal System.” In essence, he defends the Rehnquist Court’s so-called federalism revolution, concluding that it hasn’t gone far enough.

“There is no other entity besides the judiciary that is going to defend the proper distribution of power between the states and federal government in the interests of the citizens,” he said.

Federal and state officials have no systematic interest in protecting the powers distributed to them by the Constitution and often have an interest in trading away or abandoning these powers, he said. 

“Because of ignorance, citizens often are unable to monitor these federal and state failures. Thus, judicial enforcement of federalism benefits the citizens of the whole nation -- not just state governments -- and can restrict as well as protect state autonomy, depending on whether restriction or protection advances the constitutional structure of decentralized federalism.“

McGinnis argued in his paper that federalism is too often confused with state autonomy or state rights. State autonomy plays a large role in sustaining the benefits of federalism, but sometimes federalism can be protected only by restricting the power of state government, according to him.

The Northwestern University Law Review symposium on the Rehnquist Court also includes papers by Northwestern professors Steven Calabresi and Stephen Presser.

Calabresi, the George C. Dix Professor of Constitutional Law, served in the Reagan and Bush administrations from 1985 to 1990. His paper is titled “Separations of Powers and the Rehnquist Court: the Centrality of Clinton v. City of New York.”

“The highlights of the Rehnquist court have been its emphasis on federalism, its continuation of constitutional support for abortion rights, its recognition of rights for gay people, its greater skepticism about affirmative action than was shown by the Burger Court, its unbelievably strong support for the First Amendment, and, finally, its willingness to set some outer limits to punitive damages awards,” Calabresi said.

Presser, the Raoul Berger Professor of Legal History, often is an invited witness before committees of the U.S. Senate and House of Representatives. His paper is titled “Outsiders, Swing Justices and Original Understanding: Can the Religion Clause Be Saved?”

“I see the Rehnquist court as attempting to reestablish the relationship under our Constitution between the state and federal government as it was originally conceived,” Presser said. “I also see the court as deeply divided over social issues such as abortion, religion and affirmative action.”

Other papers published in the 2004 Northwestern Law Review addressed administrative law and affirmative action, First Amendment, private property and Internet censorship cases.