How Conservative is the Rehnquist Court--Three Issues, One Answer

In the years following the appointment of William Rehnquist as Chief Justice of the United States Supreme Court, many commentators predicted a significant conservative shift by the Court.'Particularly in light of subsequent Reagan and Bush appointees, the Court appeared poised to mount a counter-revolution against the precedents of the Warren and, to a lesser extent, the Burger Courts. 2 But the 1992 election of President Bill Clinton resulted in two moderate appointments 3 which left the leanings of the Court uncertain.This Note presents a comparative study of the Supreme Court's decisions from 1981-1985 ("the Burger Court") and from 1991-1995 ("the Rehnquist Court") in order to determine what, if any, shift in the Court's agenda can be demonstrated statistically. 4 After all the data were compiled, three areas were selected for further analysis: discrimination, free expression, and criminal law.As this Note reveals below, this study provided particularly interesting data in the area of civil rights.At first glance, a comparison of all discrimination decisions, including race and nationality, gender, age, and disability-based * Thanks to Professor Robert Kaczorowski for his patience and support.Special thanks to Tommy for putting up with me.For my Dad, whom I miss.1. See David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court 453 (1992) [hereinafter Savage, Turning Right] ("With the change in membership, the [liberal] old agenda has been pronounced dead.");Bernard Schwartz, A History of the Supreme Court 364 (1993) [hereinafter Schwartz, A History] ("Nor can it be doubted that the line is being drawn farther to the right by the Rehnquist Court than it was by its immediate predecessors.");Harold J. Spaeth, The Attitudinal Model, in Contemplating Courts 296, 304 (Lee Epstein ed., 1995) (classifying the Burger and Rehnquist Courts as conservative); D.F.B. Tucker, The Rehnquist Court and Civil Rights 211 (1995) (referring to both the Burger and Rehnquist Courts as conservative); Christopher E. Smith & Avis A. Jones, The Rehnquist Court's Activism and the Risk of Injustice, 26 Conn.L. Rev. 53, 53-54 (1993) (stating that the emerging conservative majority would control the outcome of most decisions).2. Savage, supra note 1, at 453-58.3. Until Chief Justice Burger retired, President Reagan had appointed only one Justice, Sandra Day O'Connor.Savage, supra note 1, at 5. New Justices since Rehnquist's appointment as Chief Justice include Reagan appointees Antonin Scalia and Anthony Kennedy, Bush appointees David Souter and Clarence Thomas, and Clinton appointees Ruth Bader Ginsburg and Stephen Breyer.Notably, while the Burger Court era studied here experienced only the addition of Justice O'Connor, the Rehnquist Court underwent significant changes during the period studied here with the additions of Thomas, Ginsburg, and Breyer.But there have been no changes in membership since the period studied here.4. Although such designations are generally used to refer to all terms during the tenure of a Chief Justice, "the Burger Court" and "the Rehnquist Court" will be used herein to refer to the two five-year periods studied in this Note.