The Bush Imprint on the Supreme Court: Why Conservatives Should Continue to Yearn and Liberals Should not Fear
The Bush Imprint on the Supreme Court: Why Conservatives Should Continue to Yearn and Liberals Should not Fear
Lee Epstein, Andrew D. Martin, Kevin M. Quinn, Jeffrey A. Segal, 43 Tulsa L. Rev. 651 (2008)
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But did 2006 represent a decisive break from the past, a true “transformation,” as some analysts suggest? Relative to the Court’s last major transformation–when Richard Nixon replaced Earl Warren with Warren Burger in 1969–the answer is no. As we explain in Part II, empirical scrutiny of the Court’s voting patterns reveals no significant distinctions between the Rehnquist and Roberts Courts. And, as we show in Part III, while it is easy enough to point to several cases that may represent a break with existing case law –Parents Involved and Gonzales, for example–it is no more difficult to identify areas of substantial continuity, such as criminal law and access to the federal courts. Moreover, even in particular cases –Parents Involved and Gonzales, not excepted–our analyses suggest that the outcomes would have been no different had the Rehnquist, and not the Roberts, justices resolved them. In short, the transition from the Rehnquist to the Roberts Court is less a significant break than a continuation of the Republican Court era, an era that began with Nixon’s four appointees and has remained undisturbed ever since.
If relative continuity, and not dramatic change, is the more apt description, then reports of President Bush’s “most enduring” legacy are either way premature, greatly exaggerated, or simply mistaken. This is not surprising. For the reasons we emphasize throughout, Presidents face considerable obstacles in leaving their imprint on an entire Court. Richard Nixon was able to overcome them but George W. Bush has not been so fortunate. As a result, conservatives must go on yearning and liberals need not fear–at least not for the time being.