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Friday, February 24, 2006

"The Rehnquist Legacy"

Ann Althouse has posted notes and comments about yesterday's conference, sponsored by the Federalist Society, on "The Rehnquist Legacy."  She also reviews the lunchtime address delivered by Justice Scalia, in which he questioned the charge, often brought against the Rehnquist Court, of "conservative judicial activism."  I participated in the same panel as did Professor Althouse, who provided a characteristically clear and helpful analysis of the Rehnquist Court's federalism cases.  (My own remarks were more personal, in the nature of thoughts about clerking for Rehnquist and what I learned from him.)

A few thoughts:  (1)  The conference focused primarily on federalism and separation-of-powers questions, and so few of the speakers had much to say about the areas where, arguably, Rehnquist's "legacy" seems most significant:  constitutional criminal procedure and religious-freedom / church-state relations.  (2)  Notwithstanding the federalism focus, not much was said about the Dole case, or about (what I take to be) the fact that, for all the buzz, there was never much chance of a "federalism revolution" so long as the Chief's opinion in Dole, rather than Justice O'Connor's dissent, was the law.  (3) No one asked Justice Scalia -- after his address in which he re-affirmed his view that original-meaning textualism is the best approach to constitutional interpretation -- about Professor Randy Barnett's charge that the Justice is a "faint-hearted originalist."  (4) John McGinnis presented, in a very concise way, his big-picture take on the Rehnquist Court, which he set out a few years ago in the California Law Review.  The article -- "Reviving Tocqueville's America:  The Supreme Court's New Jurisprudence of Social Discovery" -- in my view, well worth a read.  (5)  The Walter Dellinger, Ted Olson, Paul Clement was very interesting and entertaining.  They should take it on the road.

I particularly enjoyed seeing several of my former students, who are now clerking for federal judges in Milwaukee, at the event.

Posted by Rick Garnett on February 24, 2006 at 12:33 PM | Permalink


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