37 Ga. L. Rev. 893 (2002-2003)
A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court

handle is hein.journals/geolr37 and id is 915 raw text is: A SIX-THREE RULE: REVIVING CONSENSUS
AND DEFERENCE ON THE SUPREME
COURT
Jed Handelsman Shugerman *
Over the past eight years, the Rehnquist Court has waged an
activist revolution that is unprecedented both in scope and in
conffict. Before 1995, the Supreme Court struck down acts of
Congress 134 times.' Since 1995, the Court has struck down thirty-
three more (one-quarter of the pre-1995 total).2 The number of five-
four decisions is even more startling. Before the Rehnquist Court,
the Court had a bare majority in just twenty-two of its decisions
overturning acts of Congress.3 Since 1995, it split five to four in
fifteen such cases, almost seventy percent of the pre-1995 total.4
Although few of the five-four decisions before 1995 are considered
major precedents, at least five or six of the recent opinions are very
significant.5 Eleven of those fifteen bare majority decisions featured
the same five conservatives.' They have struck down acts of
* Law Clerk to Chief Judge John M. Walker, United States Court of Appeals for the
Second Circuit. B.A., Yale College, 1996; J.D., Yale Law School, 2002; Ph.D in History, Yale
University, expected 2006. In particular I thank Bruce Ackerman, Evan Caminker, Owen
Fiss, Glenda Gilmore, Akhfl Amar, Judith Resnik, Reva Siegel, and Kenji Yoshino, as well as
David Fontana, Tsvi Kahana, Robert Post, Clement Shugerman, and, of course, Danya
Shugerman Handelsman.
See infra APPENDIX.
See infra APPENDIX.
See infra APPENDIX.
See infra APPENDIX.
These transformative decisions include the Court's rulings striking down congressional
legislation with the doctrine of state sovereign immunity under the Eleventh Amendment.
See, e.g., Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002); Bd. of Trs. v.
Garrett, 531 U.S. 356, 363 (2001); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 67 (2000); Alden
v. Maine, 527 U.S. 706, 760 (1999); Seminole Tribe v. Florida, 517 U.S. 44, 76 (1996); see also
United States v. Morrison, 529 U.S. 598, 602 (2000) (interpreting Commerce Clause
narrowly); Printz v. United States, 521 U.S. 898,935 (1997) (interpreting Tenth Amendment
expansively); United States v. Lopez, 514 U.S. 549,568 (1995) (interpreting Commerce Clause
narrowly). A restrictive interpretation of Congress's power to enforce equal protection
through Section Five of the Fourteenth Amendment is also illustrated in Garrett, 531 U.S.
at 374, Morrison, 529 U.S. at 619-27, and Kimel, 528 U.S. at 67.
 The five are Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice
Kennedy, and Justice Thomas, who voted together in the eight cases cited supra in note 5,

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