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Copyright (c) 2005 Ohio Northern University Law Review
Ohio Northern University Law Review

Kormendy Lecture Series*: Understanding the Rehnquist Court

* A lectureship at the Ohio Northern University College of Law was established through an endowment gift from the late Helen F. Kormendy, widow of Dr. Steven W. Kormendy. The Dr. Steven W. Kormendy and Helen E. Kormendy Law Lecture Fund is used each year to bring prominent individuals to campus to address matters of law in a public forum in the College of Law.


Mercer Law Review

31 Ohio N.U.L. Rev. 197


Mark Tushnet**


How can we best understand the Rehnquist Court, that is, the Supreme Court from the mid-1980s to the present? Conventionally commentators depict a struggle between "liberals" and "conservatives." That, I will argue, is a misleading picture of what happened on the Rehnquist Court. Rather, the Court's decisions were driven primarily by a division among those usually described as conservatives, although I prefer to describe the division as one between two types of Republicans. True, part of the story did involve the Court's liberals, because they were able to maintain a kind of unity that the Court's conservatives were not. Focusing for expository purposes on individual justices, I will begin by describing the division between the Court's Republicans, then turn to the liberals. After speculating about why the conservatives were unable to maintain the kind of unity the liberals were, I will conclude by discussing the implications of my analysis for the Supreme Court over the next few years.

Two kinds of Republicans populate the Rehnquist Supreme Court. First, there are the modern Republicans, members of the party shaped by Barry Goldwater and Ronald Reagan. Then, there are more traditional Republicans, of a sort that used to be called Rockefeller Republicans or northeastern Republicans or country-club Republicans. This distinction has been overlooked in analyses of the Rehnquist Court for two reasons. Today there are almost no traditional Republicans left in the congressional or presidential Republican parties, so it is easy to assume that there are no traditional Republicans ...
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