Here are some notes on the Federalist Society-sponsored conference, "The Legacy of the Rehnquist Court."
1. There was plenty of talk about what a smart person, what a good person, what an interesting person, what a tennis-playing person, what a family-loving person, what a geography-loving person, what a time-limit-enforcing person, etc., etc., Chief Justice Rehnquist was. He exercised "remarkable command over the courtroom," per Solicitor General Paul Clement.
2. Solicitors General pretty much have to speak well of the Court, don't they? I love being a law professor.
3. Rehnquist "never lost his characteristics as a Wisconsinite." (Clement again.) Evidence: He liked the Badgers, he kept the courtroom open even when it snowed, and he rigidly enforced the time limits on oral argument.
4. If you want to read the key Rehnquist opinion of all time -- according to former Solicitor General Walter Dellinger -- it's the dissent in Fry.
5. According to former Solicitor General Theodore Olson, "the best opinion of the modern era" is Justice Scalia's dissenting opinion in Morrison v. Olson, and he wasn't just saying that because he was a party and only Scalia sided with him.
6. Dellinger recounts that a few days after the 9/11 attacks he was asked how it would change the way the Court would balance security and liberty, and he said the Court would tilt the balance more toward
7. Lawprof John O. McGinnis said the most important federalism case of the Rehnquist era was the school vouchers case.
8. I didn't take many notes while I was on the dais. Sorry! C-Span recorded the panels though, so maybe you can watch it sometime.
9. When Justice Scalia rose to give his speech after lunch, he got an instant and long standing ovation. He got another standing ovation when he finished. (By the way, a lot of free lunches were served!)
10. Scalia honored his "former leader" for achieving three important things: producing majority opinions (fewer than 10% of the cases lack a majority opinion), preserving the public's esteem for the Court (I'm impressed!), and seeing that all the Justices remained friends with each other (during the entire period, every Justice was always friends with every other Justice).
11. Per Scalia, we shouldn't refer to the eras of the Court by the names of the Chief Justices. It would be better to use the names of the Presidents, but then he wondered if John Roberts would be pleased to have the current Court called the Bush Court. I try to hear if he's really saying that he's sad that there's no Scalia Court.
12. Scalia sets out to refute the accusation that the Court is a "conservative activist" court. He says that if you calculate the average annual number of statutes invalidated by the Warren, Burger, and Rehnquist Courts, you'd find the numbers are, respectively, 1.44, 1.76, and 2.16; but that the Rehnquist Court was much less likely to strike down state laws. He says that state law is a more important reflection of democratic will than federal law. But that sounds conservative to me, for two reasons: 1. the preference for state law, and 2. the likelihood that many of these were cases where the Court decided against constitutional rights claims.
13. His best argument was that what really makes the Court look activist is that Congress is activist. He marvels at Congress's "sheer inventiveness" in thinking up new ways to test the limits of its power: it's "a legislative Thomas Edison." Cases that reveal this: Plaut, Boerne, Printz. He says that any Court would have to respond to these affronts to constitutional law.
13. A better test of activism is how often the Court overrules a case, he says, because it's here that the Court is never forced to act. And the Burger and Warren Courts overruled cases about twice as often as the Rehnquist Court.
14. Accusations of activism, he says, are a "thinly veiled" way of saying you don't like the outcome.
15. He thinks the notion that the Constitution's meaning evolves doesn't work because it's too undefinable -- unlike originalism, which is neutral, he says (in what I judge to be his least believable assertion). He likes that originalism is catching on across the whole spectrum of the Court and says: "Bad originalism is better than no originalism at all."
16. He gets stuck trying to remember the name of that Commerce Clause case last term or even what it was about. The audience cues him: Raich, medical marijuana. Strange to forget that.
17. He mispronounces the word "desuetude." He mispronounces it the same way I did for a long time: de-SUE-i-tude. It's a lawyerish thing -- isn't it? -- to fixate on "sue."
18. Thanks to the Federalist Society (and the Bradley Foundation) for hosting a nice event.