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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, 893

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