Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes a pointillist approach, commenting on a large swath of the Court's caseload and allowing a broader picture to gradually emerge from observations about seemingly discrete areas of law. It first unpacks the contours of the Rehnquist Court's hostility toward litigation, focusing attention on a number of areas where the Court has acted aggressively and explicitly to limit the scope or availability of litigation, including remedies and rights of action, qualified immunity and attorney's fees, the enforceability of mandatory arbitration agreements, and limitations on the permissible scope of punitive damage awards. The article then moves from the explicit to the implicit, examining well-rehearsed areas of the Court's jurisprudence (such as its federalism cases and the 2000 Presidential election controversy) in an effort to identify the subtler effects of the Court's reflexive hostility to litigation on its constitutional docket. Finally, the article pulls back from the cases to interrogate the sources of the Court's hostility to litigation, exploring not only the reasons for that hostility but also its curious coexistence with the Court's concurrent commitment to an aggressive form of judicial supremacy, particularly in the constitutional arena.
The Court Against the Courts: Hostility to Litigation as an Organizing Theme in the
Rehnquist Court’s Jurisprudence, 84 TEX. L. REV. 1097