A Voice From the Past

As I read the majority opinion , I had the eerie feeling of entering a time warp, of being whisked back to an earlier era, one that preceded my own decades of close encounters with the Supreme Court. It was a time when federal judges took charge of state and local institutions — prisons, school systems, hospitals, child welfare agencies — in order to remedy grievous constitutional harms. It was an era when an assertion embedded in a Supreme Court opinion that “courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration” would scarcely have raised an eyebrow, so commonplace an observation would it have seemed.

Those were Justice Anthony M. Kennedy’s words in his majority opinion in the California case. I’ll repeat: remarkable.

By the time I began covering the court in the late 1970s, the sun was setting rapidly on the era of the “structural injunction,” the term for an order by which a court takes control of a public institution. (“[A] declaration that the judge will henceforth manage the reconstruction of an ongoing social institution,” is how Owen M. Fiss of Yale Law School defined it in a 1978 book, “The Civil Rights Injunction”).

First the Burger court, then the Rehnquist court, pedaled as fast as they could away from precedents that had endorsed judicial management of once-segregated school systems. “Local autonomy of school districts is a vital national tradition,” Justice William H. Rehnquist declared in a 1977 decision that overturned a wide-ranging desegregation order in Dayton, Ohio . Eighteen years later — as Chief Justice Rehnquist — he wrote the majority opinion overturning a judicial order that had sought to stem white flight from Kansas City, Mo. by requiring increased teacher salaries and other enhancements to the public schools there. (By the time the Roberts court came along, there were almost no structural injunctions left to dismantle, although it did manage in 2007 to declare unconstitutional school integration plans that had been adopted voluntarily by two school systems that had formerly been judicially managed.

The Rehnquist Court and the Constitution - Blogspot

At the end of the 2000 presidential election, the nation saw firsthand the power of the Rehnquist Court when, for the first time in U.S. history, the Supreme Court took a definitive role in the election process. Now, Tinsley Yarbrough provides a comprehensive look at today's Supreme Court Justices and their record. An accomplished biographer, Yarbrough offers incisive portraits of the nine justices who now sit on the high bench, and tellingly reviews their nomination hearings. But the heart of the book is a systematic exploration of the Court's record in such areas as government power, economic regulation, and criminal justice. In decision after decision, the author discusses the various justices' opinions, arguments, and legal theories; he also offers his own analysis--including a sharp critique of the decision to allow the Paula Jones lawsuit to move forward.
Thoughtful, wide-ranging, and intelligently written, this book will stand as the finest study of the Rehnquist Court for years to come.

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