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155 U. Pa. L. Rev. PENNumbra 1 (2006)

handle is hein.journals/pennumbra155 and id is 1 raw text is: ASSESSING CHIEFJUSTICE WILLIAM REHNQUIST'S COURT MARK TUSHNETt In response to Erwin Chemerinsky, Assessing ChiefJustice William Rehnquist, 154 U. PA. L. REV. 1331 (2006). Professor Chemerinsky's interesting article' shows-sometimes expressly, more often indirectly-why periodization is one of the re- current issues in historiography. His article blends an evaluation of Chief Justice Rehnquist's contributions to constitutional law with a more extended discussion of the changes in constitutional law that occurred during William Rehnquist's tenure as Chief Justice. In this comment I want to focus primarily on the second theme, though with some attention to the first. I begin with a question: why should we think that the Rehnquist Court identifies an analytically significant period in constitutional history?2 In the course of addressing that question, I will agree with Professor Chemerinsky's comment that constitutional law as of 2005 was substantially more conservative than it was in 1986, but raise some questions about exactly how conservative the law became, and about exactly how it became conservative-that is, the extent to which the change can be attributed to ChiefJustice Rehnquist. Taking the Rehnquist Court as our initial periodization, we might develop a more finely grained analysis or a less finely grained one. Professor Chemerinsky elaborates on Professor Merrill's more finely grained two Rehnquist Courts thesis by adding a third Rehnquist Court, which occupied the final years of Rehnquist's ten- tre. The three Rehnquist Courts thesis faces a problem that Profes- sor Merrill's does not. Professor Merrill divides the Rehnquist Court William Nelson Cromwell Professor of Law, Hai vard Law School. I Erwin Chemerinsky, Assessig (hi e]Justice William Rehuquist, 154 U. PA. L. REV. 1331 (2006). 2 As does Professor Chemerinsky, I put aside the contributions Chief Justice Rehnquist made to the administration of the Supreme Court and the federal judiciary. On those matters, I do think that the Rehnquist Court identifies a period distinct fhorn that of his immediate predecessor, who was a notoriously bad administrator who thought he was a good one.

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