The Rehnquist Court had proven deeply disappointing to the Right. Justices billed as conservative proved not to be; justices who were solidly conservative shifted the court in unexpected ways. In both its reasoning and results, the Court failed to live up to conservative expectations and at times acted directly contrary to them. With seven Republican appointed justices, the Rehnquist Court had refused to overturn Roe v. Wade, which guaranteed a woman’s right to an abortion. It reaffirmed Miranda v. Arizona, a 5-4 Warren Court decision that required police to give warnings against self-incrimination to criminal suspects in custody. It would not bring down the curtain on affirmative action. It put greater restrictions on the death penalty and created new rights for gays and lesbians, expressly overturning earlier decisions in the process. It imposed sharper limits on presidential power than ever before.
By the end of Rehnquist’s tenure as chief justice, his court was decidedly not conservative. With O’Connor and Kennedy at its center, the Court was willing to identify new rights in the Constitution and take on all those nettlesome social issues that conservatives thought should be decided by legislatures. The Rehnquist Court didn’t hesitate to take on the most hotly debated public issues of the time — abortion, gay rights, affirmative action, the death penalty, presidential power, the separation of church and state. Sometimes the decisions were narrow. Sometimes the justices split the difference between two strongly argued extremes. But more often than not, on the most volatile issues, the Court did not take the conservative path.
Like the Republicans in the political branches, who have flouted ethics laws, increased the size of government, and shown no discipline in cutting runaway spending, the Supreme Court under Rehnquist went astray from conservative legal principles. Over the years, the O’Connor Court became increasingly willing to inject the Court — and the Constitution — into explosive public disputes. The justices came to believe that judicial wisdom could help decide the right policy. Their opinions didn’t have the aggressively progressive tone of the Warren Court’s decisions, which profoundly reshaped constitutional rights and protections in criminal law, civil rights, race relations, free-speech rights, and religion, but they produced significant liberal victories.
As Greenburg elsewhere makes clearer, the judicially “conservative path” is not the same thing as the politically conservative path. On so many of these issues that she refers to, judicial conservatives take the substantively neutral (judicially restrained) position that the Constitution leaves the issue to the political processes for decision.