REHNQUIST COURT

The Rehnquist Court began its reign in September of 1986 when President ronald reagan appointed william h. rehnquist Chief Justice to replace retiring Chief Justice warren e. burger. This article reviews the first four years of the Rehnquist Court. Before his appointment as Chief Justice, however, Rehnquist had served as an Associate Justice on the burger court for almost fifteen years. Like Burger, he was originally appointed by President richard m. nixon to redeem a specific campaign promise to promote law and order through Court appointments that would stem the tide of warren court decisions protecting the rights of the criminally accused and to pursue his more general philosophical commitment to appoint "strict constructionists … to interpret the law, not to make law."

The Burger Court itself made a fairly quick start in redeeming Mr. Nixon's law-and-order pledge, although the Rehnquist Court has continued and in some ways even accelerated this redemption. It seems highly likely that the elevation of Rehnquist, in conjunction with two subsequent appointments by President Reagan and one by President george bush, will complete the more general transformation of the Court contemplated by President Nixon's commitment to strict construction.

This broader transformation has been steady but slow. It has been steady because Republican Presidents holding the conservative values associated with "strict construction" have controlled the White House continuously since Nixon's election, except for the four-year interlude of President jimmy carter, who did not have the opportunity to appoint a single Justice. It has been slow partly because some of the appointees did not turn out as conservative as expected and partly because some of the conservatives replaced other conservatives rather than liberals. Of President Nixon's four appointments, only one, Chief Justice Burger, remained consistently faithful to the conservative cause, whereas Justice lewis f. powell proved to be a moderate and Justice harry a. blackmun became increasingly liberal. Justice john paul stevens, appointed by President gerald ford, has also proved to be a moderate; one of President Reagan's first two appointments replaced a moderate, Justice sandra day o'connor replacing Justice potter j. stewart, and the other, Justice antonin scalia, replaced conservative Justice Burger.

The key appointment giving the conservatives on the Rehnquist Court a clear majority on most if not all issues did not come until President Reagan's 1988 appointment of Justice anthony m. kennedy to replace retiring Justice Powell. Ironically, this appointment was made only after the Senate, following a historic controversy, had rejected Mr. Reagan's first candidate to replace Powell, Judge Robert Bork, on the ground that he was too conservative. Kennedy, during his first two terms in office, has proved to be as conservative as many expected Bork might have been, and the principal effect of the Senate's rejection of Bork appears to have been that President Bush in nominating his first Court appointee, david h. souter, to replace liberal stalwart william j. brennan searched for a conservative who, unlike Bork, had published nothing indicating his views on any important constitutional questions.

"Strict construction" is sometimes equated with a strategy of interpreting the Constitution according to the "plain meaning" of the text or the intention of its Framers. In fact, however, this interpretive strategy had not proved so far to be of great importance, except with regard to the methodology used by the Court to decide whether rights not expressly mentioned in the text are impliedly protected, where a variation of it has gained prominence. The form of strict construction, or conservatism, that has gradually come to dominate the Court, however, has been based more on institutional and political than on historical or textual commitments.

Institutionally, most of the Republican appointees have been inclined to resolve any doubts about how the Constitution should be interpreted by upholding actions of other agencies of government. This inclination probably rests mainly on three interconnected institutional commitments: a vision of democracy that pictures majoritarian-responsive institutions as its centerpiece and the life-tenured Court as antidemocratic; a vision of the management of society as a complex matter best delegated to various experts and professionals, like school boards and other administrative agencies; and a vision of federalism that views with suspicion the intrusion of federal power including the judicial power, into areas of decision making traditionally left to state and local government.

Politically, most of the Republican appointees have been guided or at least disciplined by the values associated with the constituency of the Republican party in late twentieth-century America. The Burger Court sat and the Rehnquist Court is sitting in an era when the historically dispossessed are actively seeking possession: blacks and other racial minorities; the poor and the homeless; women; gays; and other groups, like the handicapped, who have in different ways been marginalized in our society.

The Republican party has sought in a variety of ways to accommodate the interests of these groups, but it has been the party of mainstream America, not the party of the dispossessed. While Republicans and Democrats have vied for the "law and order" vote, the Republican party has been the more consistently and vocally anticriminal. The party has sought a moderate, compromising posture on the matters touching the protection of minority groups, women, and the handicapped. It has generally aligned itself at least rhetorically with traditional and to some extent religiously inspired moral views on controversial social questions such as abortion and homosexuality. While it has often conformed to the realities of interest-group politics, it has tended to resist governmental redistributive programs that would tax or otherwise interfere with property interests, preferring to rely instead on a relatively unregulated market to provide full employment and thus help the poor.

The behavior of the Rehnquist Court has been quite consistent with these political commitments, although at the same time, it is worthy of emphasis that a consistent and cohesive "Rehnquist Court" does not yet exist in one important sense. Even the conservative Justices sometimes disagree over outcomes and often, in important ways, over the rationale for decisions. As a result, the Court is often at least doctrinally splintered.

The Supreme Court, like the Republican party, has often sought what might be characterized as compromises; but on the whole, it is the Court of mainstream America, not the dispossessed. In a high percentage of important constitutional cases, its institutional and political commitments have pointed in the same direction. When these commitments have conflicted, it has to this point usually refrained from imposing its values, instead deferring to the governmental agencies whose decisions are challenged. There are some important exceptions, most notably in its resistance to affirmative action programs, but these have been few and on the whole restrained. For example, although it has sometimes protected property rights against governmental regulation, its rulings to this point do not remotely promise a return to pre-new deal ideology. Occasionally, chiefly in freedom of speech cases, it has acted in ways that might be interpreted as neither institutionally nor politically conservative, as in upholding against regulation the speech rights of flag burners, but such cases are also rare. The Rehnquist Court has been, largely but not completely, a passively rather than an actively conservative court.

In one view the Court's overall performance shows only that the system is working as it is supposed to work: the presidential appointment power is the main effective check on these nine Justices who are accountable to no electorate, and twenty years of Republican Presidents has had an effect on the Supreme Court.

The Rehnquist Court has continued the Burger Court's contraction of the rights of the criminally accused and convicted, in general subordinating these rights to lawand-order concerns, except in a subclass of cases in which the prosecution behaved outrageously in a way that might have tainted the guilt determination. Both courts have restricted the application of the fourth amendment's prohibition of unreasonable searches and seizures and the Fifth Amendment's prohibition of compulsory self-incrimination, limited the scope of the exclusionary rule, interpreted the Eighth Amendment so as to allow the states great discretion in reinstituting and administering capital punishment, and virtually eliminated the possibility of habeas corpus and other postconviction challenges to final judgments of criminal conviction.

united states v. salerno (1987), in which the Court upheld against Eighth Amendment attack the pretrial detention of dangerous defendants, exemplifies the Court's law-and-order commitment. Maryland v. Buie (1990) is an example of the priority the Court gives to law enforcement goals over Fourth Amendment rights claims. In this case, the Court sanctioned the use of evidence turned up after an arrest in a "protective sweep" of a house, on less than probable cause, that someone dangerous might have been in the areas searched. The Court seems prepared in many contexts to abandon not only the probable cause requirement but any concept of individualized suspicion as a condition to search, as in Michigan Department of State Police v. Sitz, (1990) where it upheld highway-checkpoint sobriety testing. Teague v. Lane (1989) made it much more difficult for constitutional claims by prisoners to be heard in the federal courts, holding that federal habeas corpus is unavailable for the assertion of a right not clearly established by precedent unless the right would apply retroactively. For all practical purposes, this ruling requires a prisoner to show that fundamentally unfair governmental practices might have led to the conviction of someone innocent.

The seeds of the Rehnquist Court's more general conservative agenda, also sown during the Burger Court era, include both broad propositions of law that serve to eliminate whole categories of potential constitutional rights and smaller but continuous doctrinal innovations that cumulatively have made ever more difficult the establishment of a violation of rights. The most important developments of the former have been the following: (1) the Court's unwillingness to interpret the Constitution to protect "implied" rights not explicitly mentioned in the text; (2) its limitation of the concept of constitutional rights to negative private rights against governmental interference, rejecting claims of rights to affirmative governmental assistance or subsidy; and (3) its understanding that the government's fundamental constitutional obligation is to refrain from targeting racial, gender, or religious groups for relatively disadvantageous treatment. It rejects any obligation of government to make accommodations in order to protect or benefit any such groups, and to some extent restricts government from making such accommodations for racial (although not for religious) groups.

Illustrative of the Rehnquist Court's narrow approach to defining the rights protected by the Constitution are Michael H. v. Gerald D. (1989) and Burnham v. Superior Court of California (1990). The former case raised the question as to how the term "liberty" in the due process clause of the fourteenth amendment should be interpreted; and the latter raised the question as to how the term " due process of law " should be interpreted.

In Michael H., state law conclusively presumed that a child born to a married woman living with her husband was a child of the marriage. A genetic father argued that this law infringed on his "liberty" interest in establishing his paternity. In many prior cases, the Court had held that "liberty," in the due process clause, included implied fundamental rights not expressly mentioned in the Constitution when they were "implicit in the concept of ordered liberty" or "deeply rooted in this Nation's history and tradition." These formulations do not answer the questions of how and at what level of abstractness traditional values should be identified. The Michael H. plurality, following the Burger Court's lead in bowers v. hardwick (1986), chose to conceptualize this question very narrowly, asking not even whether our traditions recognize the rights of natural fathers, but rather whether they recognize those of adulterous natural fathers; on this basis the Court rejected the claim.

This historically concrete way of identifying constitutional rights does not necessarily eliminate implied constitutional rights, first, because the Court might (or might not) let stand previously announced implied rights, and second, because it is always possible that some small number of states might in the future restrict rights that have been traditionally and widely respected by all the other states. But it does very substantially limit the potential category of implied rights. Moreover, it does so in an odd way, given the traditional assumption that the main point of constitutional rights is to protect minorities: after Bowers and Michael H., the stronger, more widespread, and more historically entrenched a rights-restrictive majoritarian imposition, the less likely the Court will find a constitutional violation.

The Bowers approach was applied by four Justices in Burnham, with the concurrence of enough others to constitute a majority, to reject a claim that subjecting an individual to a state's jurisdiction on the basis of his fleeting presence within the state amounted to a denial of liberty "without due process of law." The opinion of the four by Justice Scalia found that fleeting physical presence, which would have been thought a sufficient predicate for jurisdiction when the Fourteenth Amendment was adopted, had been assumed to be sufficient since then in many state decisions. This "continuing tradition" was sufficient to validate the practice of founding jurisdiction on a fleeting presence, whether or not it might otherwise be thought unfair.

Cruzan v. Director of Missouri Department of Health (1990) suggests that the Court is not prepared to scuttle the implied-rights doctrine completely, but is also not disposed to use it aggressively. The Court found a sufficiently concrete tradition recognizing the right of individuals to refuse medical treatment to imply that this choice was a protected liberty that included the right to die under at least some circumstances. Nonetheless, it held that the state's interest in insisting that the choice be shown by clear and convincing evidence was sufficiently strong in the case at hand to justify disallowing a patient's parents from making the decision, even though the patient herself could not make it because she was in a vegetative state.

The best known and most practically important of the pre-Rehnquist Court's decisions protecting implied constitutional rights is roe v. wade (1973), where the Court ruled that the Constitution impliedly protects a woman's right to have an abortion. The Rehnquist Court's general unreceptiveness to implied-rights claims does not bode well for the future of this right, and some of the sitting Justices have already announced their willingness to overrule Roe. Whether or not the right to abort will survive may depend on the vote of newly appointed Justice Souter, but even if the right survives, smaller but incrementally important shifts in doctrine by the Rehnquist Court have already weakened it significantly.

These shifts had their genesis in Burger Court decisions protecting the implied "privacy" right of individuals to decide their own family living arrangements, but only if the challenged regulation "substantially interfered" with the right. This substantial-interference concept has so far been important mainly in privacy right cases, although it is theoretically transplantable to other areas of constitutional law. Its patent importance at this point is in the abortion rights controversy where, in one or another formulation, it has appeared from time to time in majority and concurring opinions, including those of the Rehnquist Court, and it might prove important if five Justices are not able to agree that Roe v. Wade should be overruled. Use of the substantial-interference requirement, which has been endorsed most consistently by Justice O'Connor, would enable the majority even if it is unable to overrule Roe, to allow much greater state regulation of abortion than prior decisions have allowed.

For example, although it is not entirely clear what the criteria are for deciding when a regulation substantially interferes with the right to abort, some opinions suggest that only a regulation making abortions illegal qualifies. If so, waiting periods, mandatory antiabortion counseling, spousal and parental consent requirements, and other forms of regulation previously held unconstitutional would become permissible in the future. Even if the requirement were construed to have a lesser meaning, such as "making abortions very much more difficult to obtain," greater regulatory discretion would be available in the future than it has been in the past.

The ancestry of the Court's refusal to recognize positive constitutional rights to governmental assistance are decisions of the Burger Court that effectively terminated enlargement of the "fundamental interest" branch of equal protection jurisprudence bequeathed to it by the Warren Court, along with decisions that rejected the claim that liberties protected against governmental interference are also entitled to affirmative governmental protection.

The Warren Court has held that individuals had an equality-based right to the subsidized provision of "fundamental" services or rights they were too poor to afford, such as counsel and other important defense services in criminal cases. Warren Court decisions had suggested that which rights were "fundamental" for these purposes would depend on the degree to which they were of practical importance to people. The Burger Court did not overturn the particular rulings of the Warren Court, but early in its tenure, did effectively undercut the equal-protection basis of the doctrine and consequently its future growth, ruling that henceforth rights would be regarded as fundamental only if they were constitutional rights, irrespective of their practical importance. These opinions, however, left open the possibility that such "real" constitutional rights might sometimes include subsidy rights.

Burger Court decisions eventually repudiated this suggestion in holding that the right to abort, although a constitutional right, did not include the right to governmental Medicaid payments for abortions for those too poor to afford them. According to these decisions, constitutional rights are negative entitlements available to individuals only to stop governmental interference with the use of private resources.

The Rehnquist Court has perpetuated this jurisprudence of negative rights, holding in the abortion context, for example, that the closing of state hospitals to abortions did not violate the right to abort because the state's action left women who wanted abortions exactly where they would have been had the state never operated public hospitals—that is, dependent on their private resources.

deshaney v. winnebago county department of social services (1989) suggests, moreover, that the Rehnquist Court's commitment to the jurisprudence of negative rights is pervasive and extends beyond the abortion issue. In this case, the Court held that governmental social-service officials did not violate the rights of a boy by failing to remove him from a father whom they knew was continuously beating him and whose beatings eventually resulted in severe brain damage to the boy. The Court found no violation of the boy's right not to be deprived of liberty without due process. It ruled that due process protects individuals only against the government's interfering with their liberty and imposes no "affirmative obligation" on government to take action to protect that liberty. Just as the "culprit" in abortion-subsidy cases is not the government, but rather the pregnant woman's poverty, so (in this view) the boy's father, not the state, was the source of his problem.

The Rehnquist Court's pursuit of a "neutrality" concept of the government's basic constitutional obligation arguably has fairly deep roots in constitutional history, but is grounded most immediately in the Burger Court's washington v. davis (1976) decision, which held that unless the plaintiff is challenging a law that expressly classifies people on the basis of race, he or she can successfully challenge a governmental action as racially discriminatory only by proving that it was undertaken for a discriminatory purpose. The vision of racial justice that Washington has retrospectively been understood to endorse in subsequent Burger and Rehnquist Court decisions interpreting it is one of neutrality in a double sense: first because the Constitution requires governmental racial neutrality, any use by government of race as a classifying trait in law is suspect and likely to be struck down. And second, because the Constitution requires nothing more of government than racial neutrality, its actions are immune from attack so long as it does not act for a racially bad purpose.

This vision has substantially constrained attempts on behalf of minority groups to use law and legal institutions to better their lots in two distinct fashions, one by way of constitutional legitimation and the other by way of constitutional restriction. First, a governmental action that produces effects that disadvantage minority groups to a greater extent than other groups is constitutionally legitimate unless a plaintiff can meet the difficult burden of proving that this relative racial disadvantage was a purpose of the action. Second, voluntary attempts by government specifically and expressly to benefit racial minority groups—commonly called benign or reverse discrimination or affirmative action—are seriously vulnerable to constitutional invalidation.

The Rehnquist Court has vigorously confirmed and extended both the legitimation and restriction branches of the neutrality principle bequeathed to it. In mccleskey v. kemp (1987), for example, it rejected, on the ground of a failure of proof of discriminatory purpose, a claim by a black criminal defendant sentenced to death that the state's death penalty was administered in a racially discriminatory fashion. McCleskey's discrimination claim was based on a statistical study that, controlling for extraneous variables, found that a black defendant charged with killing a white in Georgia was four times more likely to be sentenced to death than someone charged with killing a black. The Court conceded, arguendo, the statistical reliability of the evidence, but found that even this statistical pattern would not prove that McCleskey himself was sentenced to death because of racial considerations. The case evidently shows the depth of the Rehnquist Court's commitment to its neutrality principle. Even conceding the correctness of the Court's criticism of the proof as to this individual defendant, the statistical evidence showed systematic racial discrimination and therefore proved that some (even if nonidentifiable) individual black murderers of whites were being sentenced to death for racial reasons. Even proof of a pattern of purposeful racial discrimination that might well have infected McCleskey's sentence was not sufficient to establish constitutional illegitimacy without evidence linking this nonneutrality to McCleskey himself.

The depth of the Rehnquist Court's commitment to its neutrality principle is also illustrated by its interpretation of the civil rights act of 1964, which prohibits among other things racial discrimination by employers. Burger Court decisions had held that proof that an employment practice disadvantaged minority group members to a greater extent than others, although insufficient to establish a presumptive constitutional violation by government, was sufficient to establish a presumptive violation of the statute by either governmental or private employers. On such a showing, the burden shifted to the employer to establish the business necessity of the challenged practice, failing which the practice would be found illegal.

In Wards Cove Packing Co., Inc. v. Antonio (1989), the Rehnquist Court changed this evidentiary framework in a way that requires the plaintiff to prove almost as much as he or she would need to establish intentional discrimination. After Wards Cove, the employer, in response to a showing that the challenged practice disproportionately disadvantages minority group members, need only come forward with some evidence of a business justification, after which the plaintiff must prove that the practice does not serve "in a significant way, the legitimate employment goals of the employer." A plaintiff who can meet this difficult burden will have come very close to proving that the discrimination was intentional because he or she would have shown that the putatively innocent purpose for the racial injury was a bogus explanation.

The restrictive branch of the neutrality principle arises in cases involving benign or reverse discrimination, a practice whose constitutionality was left extremely uncertain by a series of Burger Court decisions. The Rehnquist Court's decision in richmond (city of) v. j. a. croson co. (1989) communicates at a minimum that a majority of the Justices (1) see governmental actions that allocate benefits to minority races on the express basis of race as equally or almost as constitutionally troublesome as actions that expressly disadvantage them on the basis of race; (2) believe that few goals are adequate to justify such actions; and (3) will insist that these goals be pursued through race-neutral means whenever possible.

The "degree of troublesomeness" issue is important because it directly affects the "level of scrutiny" or burden of justification that reverse discrimination cases trigger. Under basic principles of constitutional law that have largely been settled for some time, most laws are constitutional so long as they rationally promote legitimate goals of government. One major historical exception to this rule is laws that expressly classify people for burdens or benefits on the basis of race, which are unconstitutional unless the government establishes that they are necessary to serve goals of compelling importance, a justification burden that is very difficult to satisfy.

The special rule for race cases, however, developed in a line of cases involving governments' acting out of racial hostility or prejudice to the detriment of minority groups. Some have argued and some Justices have agreed that reverse discrimination, which does not share this characteristic, is not so constitutionally troublesome and therefore should be judged under a less demanding justification standard. Croson is the first reverse-discrimination case in which a majority of Justices were able to agree on the burden of justification applicable in reverse-discrimination cases. They found such cases sufficiently troublesome to invoke the demanding justification standard historically applied in hostile-discrimination cases, effectively adopting a broad rule requiring governmental neutrality with regard to race.

The remaining important question in Croson was under what conditions, if any, this demanding justification standard might be met. A variety of claims have been historically made in an attempt to justify governmental programs that expressly allocate benefits like admission to state medical or law schools or governmental contracts to minority racial groups. Some, for example, see such programs as justified by the goal of preventing the perpetuation of racial underclasses or castes, promoting racial integration in the professions or work force, or creating role models for minority youth. Although Croson is not the first and will not be the last Supreme Court decision to consider this question, a majority of the Court indicates that such goals will be treated skeptically. The majority apparently endorsed the view that only one goal was of sufficiently "compelling" importance to justify reverse discrimination, namely, remedying the effects of past discrimination. Although the decision is less than clear on this point, it seems to imply that state and local government must meet a quite demanding standard in proving that the minority beneficiaries of reverse discrimination are in fact suffering present disadvantages by reason of former discrimination either against the particular individual beneficiaries themselves or other members of their race.

A year after Croson, the Rehnquist Court upheld reverse discrimination authorized by Congress with respect to broadcast-media licensing in metro broadcasting, inc. v. federal communications commission (1990), applying a less demanding standard of review. Five Justices apparently believed that the Court owes greater deference to Congress in such cases than to state and local legislative bodies, for Congress is a coequal branch of government with a variety of constitutional powers that confer on it some degree of discretion in matters of national racial-commercial policy. One of the five, Justice Brennan, has since been replaced by Justice Souter, and it is therefore difficult to predict whether the Metro distinction between state-local and federal reverse discrimination or a uniform application of Croson will ultimately prevail.

The neutrality principle that has played such an important role in the development of race law has been equally important in sex discrimination cases, where the same basic rule applies: laws that expressly discriminate on gender grounds are suspect (although subject to a less demanding justification than racial classifications), and in the absence of express gender classification, a plaintiff must prove that a challenged action was taken for a gender-discriminatory purpose. The Rehnquist Court has decided no equal protection cases involving gender discrimination, but has given no reason to suspect that it will depart from its neutrality principle. In fact, its recent assimilation of the free exercise of religion clause to the neutrality principle indicates that its commitment to that principle is quite robust.

This assimilation occurred in employment division, department of human resources of oregon v. smith (1990), which presented the question as to whether Oregon's penalization of the religious use of peyote violated Smith's right to the free exercise of his religion. Before Smith, a law that had the effect of burdening a person's ability to follow a religion was unconstitutional unless shown necessary to the accomplishment of a goal of compelling importance. Smith holds that with certain very limited exceptions a " neutral law of general applicability" cannot be challenged as an interference with the free exercise of religion. The upshot is that, in the future, adjudication under the free exercise clause will parallel racial and gender equal protection adjudication. Laws that expressly require or prohibit religious practices are not religion neutral and will therefore trigger a heavy burden of justification. But laws that are of general applicability, like those prohibiting drug use, are religion neutral and are not subject to successful constitutional attack unless they were adopted or enforced for the purpose of discriminating against a religion, notwithstanding that their effect burdens certain religious practices. Thus, for example, a law prohibiting the serving of alcohol to minors could be enforced against the Catholic use of wine in communion, although the major religions probably have enough political influence to secure accommodating legislation, and the brunt of Smith will likely be borne, as in Smith itself, by minority religions.

To say that a principle of "neutrality" pervades the Rehnquist Court's jurisprudence of race, gender, and religion is not of course the same as saying that the Court is employing the only tenable, or the right, or even an internally consistent concept of neutrality, for neutrality is no more self-defining than "equality." With regard to race, for example, critics might argue that for the government to act in a truly neutral way its actions should not disproportionately disadvantage members of some racial groups relative to others, irrespective of its purpose, at least when the subject of the disadvantageous treatment is important. They might also say that even if purpose rather than effect is a proper measure of neutrality, the evidence system through which the Court determines purpose is nonneutral, for it rests implicitly on the assumption that government does not usually engage in racial discrimination, rather than the opposite assumption. Finally, these critics might say that the neutrality of current governmental actions cannot be fairly judged without regard to its past actions and, consequently, that what might appear to be a nonneutral conferral of governmental advantages to racial groups previously purposefully disadvantaged by government is better characterized as the pursuit of racial neutrality over time. The Rehnquist Court's neutrality concept might be seen as an attempt to compromise competing political interests, but the underlying questions of principle and policy certainly cannot be resolved by reference to the unadorned concept of neutrality.

No question in contemporary constitutional law better illustrates this proposition than what constitutes an unconstitutional establishment of religion. The Rehnquist Court has addressed this question several times, but has not yet supplied a clear answer. All of the Justices who disagree with its answer appear to believe they are being religiously neutral, yet their answers differ significantly. Three answers have figured prominently: (1) the government may not take actions that in fact benefit religion (a major part of the pre-Rehnquist Court test and one favored by some current Justices); (2) it may not take actions that amount to active proselytizing for a religion (the test favored by four Justices); and (3) it may not take actions that create the appearance that it is endorsing religion (the test favored by two "swing" Justices and therefore likely in the short run to prove determinative of the outcome of many cases).

These competing visions of neutrality were all at work in county of allegheny v. american civil liberties union (1989), where the Court was called on to decide whether either of two Christmas displays by the city of Pittsburgh violated the establishment clause. One was a crèche in the county courthouse, and the other a side-by-side display of a Christmas tree and a menorah in front of a public building. A majority of the Court, apparently pursuing what appeared to five Justices a neutral principle that would simultaneously assure that government does not help or hurt religion too much, applied the "no appearance of endorsement" test, and held the crèche unconstitutional and the other display constitutional. The Court found that the factual context of the first display created the appearance of an endorsement of religion, whereas that of the second created the appearance of a celebration of a winter holiday season. Those Justices who applied the "no benefit in fact" test would have held both displays unconstitutional for their nonneutral favoring of the Christian and Jewish religions. Those who applied the "no proselytizing" test criticized the other opinions for their nonneutral hostility toward religion and would have upheld both because neither coerced anyone to support or participate in a religion.

The establishment clause cases illustrate not only the elusiveness of the "neutrality" concept but also, when read together with the free exercise cases, an asymmetry in Rehnquist Court jurisprudence between racial and religious neutrality apparently reflective of the Court's "main-stream America" predisposition.

With regard to its legitimation function, the neutrality concept operates similarly in race and religion cases: regulations are legitimate even if they produce nonneutral effects, so long as they are facially and purposively neutral. With regard to its restrictive function, however, Rehnquist Court neutrality presumptively prohibits regulations that specially benefit minority races, but permits those that specially benefit religious groups, so long as they do not appear to endorse a religion (or, perhaps, so long as they do not actually proselytize).

The Rehnquist Court has also pursued its conservative agenda through numerous smaller but cumulatively important doctrinal avenues. One example is the privacy rights doctrine that interferences must be "substantial" before they will be regarded as constitutionally troublesome. Many other examples might be given, but one will suffice: the Court's use in free-speech cases of the threshold public forum concept effectively to foreclose speech rights on most kinds of public property and its related apparent willingness to accept without serious scrutiny governmentally proffered justifications for regulating speech activities in the few public places where individuals do have the right to engage in expressive activities.

In free speech cases, the Rehnquist Court has been reasonable if sporadically protective of traditional constitutional rights. It has struck down many regulations restricting speech, not only in well-publicized cases, such as those involving flag desecration, but in more mundane settings, such as newsrack placements and handbilling. One area in which it has been less protective, however, concerns the right to engage in expressive activities in public places, a right that has historically been particularly important to the dispossessed who lack the resources to project their views through other media.

The Court's tolerance toward restrictions of speech in public places derives from the Burger Court's legacy, but again, it seems fairly clear that the Rehnquist Court enthusiastically subscribes to the intuitions that informed that legacy. The questions as to whether and to what extent the free speech clause entitles individuals to engage in expressive activity on public property has been implicit in constitutional law for along time, but for a variety of reasons went largely unaddressed in early cases. The Court was not forced to confront it directly until the mid-1960s, when civil rights demonstrators began to use unconventional sites such as libraries and jails as demonstration locations. The early decisions often rested on unclear reasoning, although for at least a time, the dominant trend was to protect the demonstrators' rights unless the government could prove that the demonstration actually interfered with the normal use of the property.

The Burger Court eventually decided on a tripartite classification of public places and hence speech rights. Streets and parks were labeled "public forums," and speech regulation in these places was "sharply circumscribed." In particular, even so-called content-neutral or "time, place, and manner" restrictions were unconstitutional unless, among other things, they were "narrowly tailored to serve a significant government interest." A second type of public forum consisted of places the government had voluntarily opened for speech purposes, and regulations here were subject to the same constitutional limits. All other kinds of public property were not public forums, and speech activity in such places could be prohibited unless, in substance, the government was simply trying to suppress views it opposed.

Because relatively few places were true public forums and therefore available for speech activities as a matter of right, one important question that remained concerned the circumstances in which the Court would find that property had been voluntarily opened for speech. Additionally, because content-neutral regulation of true public forums is far more common than content-based regulation, the practical effect of these rules on access even to streets and parks depended largely on the circumstances in which the Court would find that "time, place, and manner" regulations were adequately "narrowly tailored."

The current answers to these questions come largely from Rehnquist Court decisions and are not very speech protective. With regard to voluntarily opened forums, the main case is hazelwood school district v. kuhlmeier (1988), where the Court upheld the authority of public school officials to censor from a student newspaper articles about student pregnancy and the effect of divorce on students. Although the Court might have decided the case as it did on alternative grounds, its decision suggests that the category of voluntarily opened forums is a very small if not an empty one. It held that the newspaper was not such a forum because school officials had retained curricularly based editorial rights; therefore, even though the paper had always been open to the student body at large to submit opinions and articles, it had not been opened for general student speech purposes. The same theory would seem available for a wide variety of public property. Managers of public auditoriums, for example, might make their facilities broadly available, but retain the right to exclude certain subject matters (although perhaps not viewpoints). After Hazelwood, the Court, in this same vein, held in United States v. Kokinda (1990) that handbilling and fund solicitation on the sidewalk leading from a parking lot to a post office could be banned because the sidewalk was neither a true nor opened public forum, having been built for post office business purposes.

The most important case on the related question of when a content-neutral regulation is sufficiently "narrowly tailored" to survive constitutional attack is Ward v. Rock Against Racism (1989), where the Court appeared to hold that this requirement is met so long as the government can accomplish its goal better with the regulation at issue than without it. The Court did say that a regulation may not burden speech more than is necessary to accomplish the government's legitimate goal, but it simultaneously rejected the view that the government must use the means that would accomplish its goal with the least restriction of speech; it is unclear how these two propositions can coexist. For example, a ban on all picketing on a certain sidewalk would be more effective in accomplishing the goal of pedestrian free movement than no ban would. Thus, it would seem to be constitutional under Ward, unless it burdens speech more than is necessary; if it does so, it would seem that this is because pedestrian free movement could have been assured by means that are less restrictive of speech. How Ward will ultimately be interpreted is uncertain, but if one takes seriously the idea that any contribution toward a goal validates a content-neutral regulation—and related decisions of the Rehnquist Court suggest that it does take this idea seriously—the Court will have given speech rights so little weight in the balance that virtually all non-content-based restrictions on access, even to true public forums, will survive constitutional attack.

Larry G. Simon
(1992)

(see also: Capital Punishment and Race; Race-Consciousness; Religious Liberty; Right Against Self-Incrimination.)

Bibliography

Abrams, J. Marc and Goodman, S. Mark 1988 End of an Era? The Decline of Student Press Rights in the Wake of Hazelwood School District v. Kuhlmeier. Duke Law Journal 1988: 706–732

Constitutional Scholars' Statement on Affirmative Action After City of Richmond v. J. A. Croson Co. 1988 Yale Law Journal 98:1711–1716.

Estrich, Susan R. and Sullivan, Kathleen M. 1989 Abortion Politics: Writing for an Audience of One. University of Pennsylvania Law Review 138:119–155.

Fried, Charles 1989 Affirmative Action After City of Richmond v. J. A. Croson Co.: A Response to the Scholars' Statement. Yale Law Journal 99:155–161.

Karst, Kenneth L. 1989 Private Discrimation and Public Responsibility: Patterson in Context. Supreme Court Review 1989:1–51.

Soifer, Aviam 1989 Moral Ambition, Formalism, and the "Free World' of DeShaney. George Washington Law Review 57:1513–1532.

Tushnet, Mark 1988 The Emerging Principle of Accommodation of Religion (Dubitante). Georgetown Law Journal 76: 1691–1714.

Werhan, Keith 1987 The O'Briening of Free Speech Methodology. Arizona State Law Review 19:635–679.