SUPREME COURT OPINIONS: The Rehnquist Court (1986 - Present)


OOOOFor each opinion, the author's name name is given first and in full, the following justices joining in the opinion. Concurring or separate opinions are those which agree with the result of the Court's opinion but differ with the reasoning, larger implications, or simply wish to add an aspect not touched on by the Court. Dissenting opinions, of course, are those which disagree with the Court's ruling. There may even be several dissenting opinions, depending on the nature of the several justices' disagreement.

1989 Texas v. Johnson, 491 U.S. 397, 109
Justice William J. Brennan, J. Blackmun, J. Marshall, J Scalia
Concurring: J. Kennedy
Dissenting: Chief Justice William Rehnquist, J. White, J. O'Connor
Dissenting: J. Stevens

OOOOOverturned the conviction of Gregory Johnson who burned an American flag during the Republican National Convention in Dallas, Texas, and so violated a Texas statute against flag desecration. The majority held that the burning was a form of expression protected by the First Amendment - indeed, that it was the flag's very symbolic significance, which the statute existed to protect, that made the burning "expressive" and gave Johnson's act First Amendment protection.

1995 United States v Lopez, 514 U.S. 549
Chief Justice William Rehnquist, J. O'Conner, J. Scalia, J. Kennedy, J. Thomas
Concurring: J. Kennedy, J. O'Connor
Concurring: J. Thomas
Dissenting: J. Stevens
Dissenting: J. Souter
Dissenting: J. Breyer, J. Stevens, J. Souter, J. Ginsburg

OOOOLopez was the first check placed on Congress' Commerce Power since the thirties. The case arose out of the conviction of a 12th grade student for carrying a gun to school in violation of the Gun-Free School Zones Act of 1990, a federal statute making it illegal to possess a firearm within a thousand feet of a school. Lopez challenged the conviction on the grounds that the federal government had no right — under the Commerce Power — to pass such a law. The Court found for Lopez, ruling the act unconstitutional.
OOOOWriting for the majority, Rehnquist concluded essentially that the act, in banning gun possession, neither addressed nor acted upon any commercial or economic activity. Further, that while Court had in the past acquiesed in Congress' extensive use of the Commerce Power to regulate what only indrectly affected commerce, this particular act went too far. First, it invaded what was a traditionally state and local sphere of interest, education. Second, were a "rational basis" found for the act, i.e., were the Court to assume that Congress had a rational basis for believing that school gun violence significantly affected commerce, then there would be no limit to what Congress might regulate. Nothing, in the majority's opinion, would stand in the way of the federal government's complete invasion and replacement of the states' police power, i.e., the states' traditional power to legislate for the safety, health and well-being of their citizens. Rehnquist's conclusion was that the Court had tolerated enough, and would admit no more broadening of the Commerce Power.
OOOOIn concurring, Kennedy was more cautious that Rehnquist. Unlike Rehnquist, he confined his opinion to the case at hand without drawing larger conclusions from it. The sense of Kennedy's opinion was that the Commerce Power is important, that it had given Congress an ability to legislate for the nation as a whole in the context of significant economic and social changes since its founding, and that a generous interpretation of it should be preserved. For Kennedy, overturning the Act should not draw a line in the sand. Kennedy, then, was philosophically more aligned with the dissent except on the merits of this particular case.
OOOOThomas' concurrance, like Rehnquist's opinion and Souter's dissent, recited the history of the Commerce Power. Earlier Courts, in interpreting Congress' power under the Commerce Clause, had drawn significant distinctions between what was "commerce", or what was "production", "manufacturing" or "agriculture". Moreover, the distinction had also been drawn between what affected commerce "directly" and what "indirectly". Former Courts had used these distinctions to severely limit the Commerce Power. In the late '30s, however, the Court had begun to ignore these distinctions. Instead, the new standard became, did Congress have a "rational basis" for believing that the regulated activity had a "significant" or "substantial effect" on commerce? and was the legislation reasonably tailored to its purpose. If those conditions were satisfied, the Court was satisfied. Thomas disagreed, writing that the "substantial effects" test was a license for Congress to invade the sovereignty of the states, and should be rejected. While even Thomas did not go so far as to advocate the reintroduction of the old distinctions, as a literalist and originalist, he clearly and explicitly believed that they were the proper interpretive tools for the Commerce Power.
OOOOSouter's dissent recites a different aspect of the history of the Commerce Power, i.e. former Courts overturning of federal legislation, much of it designed to allieviate economic and racial inequities. Any back-tracking on the Court's deference to the reasonable exercise of the Commerce Power would jeopardize Congress' ability to meet new national needs in future, unforseen, circumstances. Wherever possible, Congress and its acts were to be given the benefit of the doubt in adjusting and managing new realities.
OOOOBreyer chose to draw a direct connection between education and commerce, stressing the significance of an educated population and a healthly national economy. Gun violence in schools, he wrote, directly threatened the educational process, and therefore had a significant effect on the economy and commerce. In effect, it was Breyer's opinion that the Act met the rational basis test of significant effect.