A conservative Insurgency?

Le conservatisme américain est loin d’être triomphant, il l’était au temps de Reagan, mais
maintenant, avec Trump il est en crise.
Think Thanks: they are institutions founded by conservators who are policy-oriented. They
are still very in uential in American Politics and in particular, during elections, they promote
ideas and help the electoral campaign to be more effective.
There are 2 ways of understanding Conservatism :
1. In Europe it is an opposition to the French Revolution: What conservatives shared
in Europe, was the opposition to the French Revolution’s ideals, as Burke pointed out in
his book. He is famous for having criticized the French Revolution and he is considered
the Father of Modern Conservatism, which was understood as a movement in defense
of tradition (to be opposed to those who want to completely change society and create a
New World). The US was conceived as a new and arti cial Country and it was created
with a constitution that claimed to end traditions and cut ties with the British tradition.
The American Revolution was all about cutting ties with England and putting an
end to British traditions: that’s where the conundrum lies because the US is a non-
traditional country and so, how can you be a conservative in a country based on the
rejection of tradition? As a result, Conservatism in the US has a speci c history that is
different from the history of conservatism in Europe.
2. In the course of American history, Conservatism has had different illustrations and
movements. We will focus on conservatism born in the 20th century. This
conservatism was born in the 1930s, grew in the 1960s, and became dominant in the
1980s. The speci c nature of this movement is insurgency: they want to criticize the
established order of things, more precisely between the 1930s and 1950s Democrats
registered a great number of successes: they were extremely successful in reforming
American society. In particular, with the Social Security Act and New deal, but also
later, with the Great Society (Medicare and Medicaid) project and Black
Emancipation (Civil Rights Act and Voting Rights Act) promoted by Lyndon Johnson.
By the 1970s Democrats had succeeded in everything they believed in, they had
come to represent the status quo and they had no new ideas: the only thing they could do
was protect their achievements, they have become the established order. This new position
of the Democrats represented an opportunity for Republicans, in particular the
conservative members, to become the insurgent against the democratic order. The tactic
they initiated was to capture Democratic discontent. How can they be dissatis ed
with the Democrats’ achievements? The answer to that lies in the tactical art of
republicans. Conservators in the 1960s claimed that there was a very potent but invisible
political force that have been neglected and they called it: “The silent majority”. This
expression is a perfect example of this tactical art because the expression in itself is very
exible, it can refer to many things: everyone can be considered part of the silent majority.

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 The silent majority is pretty hard to de ne and the de nition of that has to be found in a
book published in 1971: The Real Majority, which was written by Ben Wattenberg. He says
that the silent majority was made up of people who are “unyoung, unblack and
unpoor”: the white middle-aged and middle-class Americans. This is the engine of the
Republican backlash in the 1970s: the capture of discontent by white middle-class
America, that felts overtaxed because of all the social programs listed before, and victims
of reverse discrimination. In other words, an increasing number of white people
middle class considered that Black emancipation lead to reverse discrimination
against white people. Conservative Republicans were extremely skillful at capturing this
“silent majority”.
During the 1930s one of its great successes of Roosevelt was creating an electoral coalition,
which was called the “New Deal coalition”, that was meant to support New Deal policy.
The political factions that gathered were composed of different coalitions very different
from one another. Among them, we can nd “Poor Farmers of the West”, but also “Urban
ethnic minorities” (Irish workers, Italians…), and they became supporters of the Welfare
State. Next, we have the Urban middle class, which was deeply impacted by unemployment,
and nally, we have the Bourbon Democrats, namely Democrats of the South. They were
explicitly racist and defended segregation, but, at the same time, they were also
extremely poor, and they were very in uential in Congress, because:
1. After the Civil War, the Republican Party was rejected by the South because it was the
Party of the invaders: the resentment became hatred, to the point that Republican Party
was unable to have candidates in the South. After the civil war, the elections in the South
were peculiar, because there was no Republican Party and Democratic candidates could
spend their whole life in Congress since they were constantly elected.
2. According to the principle of seniority, people who have been longer in congress will be
those in charge of the most important charges.
Bourbon Democrats were so powerful that they could blackmail the Roosevelt
administration itself, and in fact, they asked Roosevelt not to do anything for black
emancipation in his New Deal. There was a pact between them: if you do something for
black emancipation, New Deal won’t be adopted. This New Deal coalition became the
backbone of American Politics for generations, since the 1960s.
Party Identi cation is the of cial declaration that every citizen has to do: they have to
register to vote and say whether they are Republicans, Democrats, or Independents. When
Primaries are organized at a local level, voters have to prove they are voting for their faction.
Party ID is very useful for sociological purposes: we do have data on Parties, and we know
exactly how many people consider themselves Republican and how many of them consider
themselves Democrats. From the 1930s to the 1960s Democrats were the absolute majority:
60%. In the 1960s this dominance will change. The Democratic Party changed its
stand on Black Americans’ emancipation in the late 1940s. Truman signed a
document that ended discrimination in the army and it lead to the creation of Third

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Party Strom Thurmond (1948), the so-called Dixiecrats. They threatened the National
Democratic Party to split if they would have continued to support Civil Rights.
Republicans immediately understood that it was an occasion for the, and Berry Goldwater in
1964 started the “Southern Tactic”: Republican candidates had to criticize black
Americans’ emancipation but this criticism couldn’t be explicit. Someone who said, at the
time, that he was in favor of “States’ Rights” was suggesting that he was against Black
emancipation. 1964 was a huge defeat in the presidential election, but, at the same time,
conservators became the dominant movement within the Republican Party. Their
Southern tactics proved to be a major success and it was pioneering in 1964 and in 1968
Nixon did the same thing. Kevin Philips, one of the most important advisors of Nixon, wrote
The Emerging Republican Majority where he states that the Southern tactic profoundly
revolutionized the political stage and he anticipated future development: he underlined the
fact that the South will be the future bastion of the Republican Party. This anticipation
proved to be fully justi ed because in the 1970s the South slowly shifted to the Republican
columns, it became a Republican region. This evolution is the rst dent in the New Deal
coalition Republican Conservators captured, but they did not stop there. They also win
another important constituency: the white working-class voters, who are often known as
“white ethnics”, the so-called WASP, the overwhelming majority of the population. The rst
generation of those white ethnics were immigrants with a very precarious situation (as How
the Other Half lives reports), but by the 1930s they integrated with American society and
made it to working-class status. Typically white ethnics will be supported by New Deal, By the
1960s they are part of the middle class: it took them 3 generations to assimilate into
American society. In the 1970s Republicans understood that they could be potential
republican voters because some of them were deeply suspicious of the Black civil rights
movement and they felt that the Black are given opportunities: It can be regarded as
reverse discrimination. Republicans came out with a series of tactics to attract white
ethnics: create status anxiety about the fact that their status was endangered by Black
emancipation and what happened in the 1960s made this argument relevant. In 1964-1968
there were urban riots and many of these urban riots resulted in people being wounded and
killed, and the property being destroyed: Republicans presented those riots as resulting from
the policies of the Democrats, and, even though the race was not mentioned, it suggested that
these riots are caused by the black community: Republicans used class and racial
division at their advantage. Republicans launched a series of messages in favor of
traditions, family values, and culture wars in general. In the 1970s an example could
be the Eagle Forum, whose leader was Schla y. This gathering technique covers paid in 1984
when Trade Unions and working-class people voted for Reagan, the conservative candidate.
How can working-class people vote against their economical interest: Republicans played the
card of traditional values and national identity to let the working-class vote for them. The
same debate is happening nowadays: many Trump voters are white poor working-class men
and are going for a billionaire defending businessman interests. Since the 1960s Republicans
have been very skillful at creating an electorate, rst capturing the South, secondly capturing

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 the working class, and thirdly capturing minorities. Democrats considered that ethnic
minorities will go for them, and this is true for some of them: such as black Americans, but it
is not the case for all of them, for example, the Hispanic community is the target of
Republicans. The Hispanic community does not exist: they are divided in the region of
origin, and status (undocumented immigrants, documented immigrants, rst-generation
Americans, second-generation Americans), and in 2004 the Republican candidate Bush jr.
carried 40% of the Hispanic vote: that was unexpected. Nowadays Trump registered a huge
success among Hispanics, because:
1. They have a catholic background and so they are in favor of Republican traditional
ideas
2. In economic terms, Hispanics, typically when they are in the US become owners of
small shops and have a lower-middle-class status. They do value private property, so
they tend to regard it with a certain suspicion of social programs.
3. First-generation Hispanics tend to value things like immigration, but it is not the case for
the Second generation, because they tend to value the economy and they are
suspicious of new generations of immigrants.
Despite all things Trump said against Hispanics he gained lots of votes from the Hispanics of
the Second Generation. Nowadays, the landscape of social minorities is much more
complex, because they are integrated into American society. The Hispanic community is
largely split between Democrats and Republicans. There are 2 ways of conceiving
conservatism: backlash and the fact that conservatism’s roots are more radicate and go back
to the 1930s.

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 The Conquest of the Presidency:
The Reagan Years
When Reagan was elected in 1980, many Americans were convinced that the election had
gone wrong: it was a repetition of the 1964’s election (Lyndon vs Goldwater). In 1980
Reagan had more or less the same position as Goldwater, except for black
emancipation, which he never criticized. In 1980 Reagan was rst and almost the anti-
communist: he advocated a new start of the confrontation with the USSR. He wanted the
US to stand rm against the USSR. Reagan was also very much in favor of
decentralization: he wanted to shift the power back to the States, indeed he kept on
explaining that the government had become too big and too powerful, and he wanted to
limit the power of the government. He wanted to cut taxes to promote economic
growth: He was a major supporter of supply-side economics, also called trickle-down
economics. All those elements were pretty close to Goldwater’s program and Reagan was a
most controversial gure. Nowadays, the opinion of Americans has much changed: he has
entered a small group of leaders who are considered heroes. The initial question we have
today is why and how did that happen? How he could have become a national gure?
Reagan was born to a very modest family background, he came from a lower-middle-
class family. His family was somehow derelict because his father was very violent and used to
drink too much. Reagan’s family took much advantage of the new deal: they were Irish and
everyone around Reagan appreciated Roosevelt, in fact, for a long time he considered himself
a New Deal Democrat. Reagan decided he was a Republican in 1964 and he explained
that he changed sides because “the Democratic Party left him”. In the 1960s the
Democratic Party took out a whole series of new ideas: black emancipation, minorities rights,
sexual rights (abortion), and general cultural issues. Reagan rejected those cultural
evolutions taken out by the Democrats. He was regarded, initially, as someone who will
never compromise, but actually, he turned out to be very different: he was pragmatic and
willing to negotiate with his political enemies.
1980—> Jimmy Carter was the Democrat candidate, and Reagan kept pounding Carter on
his actual record. He faced a very complicated situation: unemployment and in ation were
growing. When debating the economic issue, Regan was asked about the crisis and he
answered that “recovery is when Carter loses his job”. He was not that well-elected, since many
citizens decided not to vote, but his election was a success for other reasons: Since 1954
Democrats had the majority in congress, while in 1980 Republicans obtained the majority in
Senate. The speaker back then was a Democrat from Massachusetts called Tip O’Neil and he
explained that he will never negotiate with Reagan. The Senate has speci c tasks that the
House of Representatives doesn’t have: The Senate is in charge of con rming
presidential nominations in agencies and courts, in particular, the Supreme Court.
The Reagan administration understood what it could do with a Republican Senate: it was

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 becoming quite easier to nominate judges who were in favor of Reagan. Judges seated on the
Supreme Court are called Justices because they embody justice itself. In 1980 we had
divided congress: Republican Senate and Democratic House of Representatives.
1984—> There was a brand new political situation: Reagan had gained popularity
because of his economic policies and the resulting economic growth. In March 1981 there
was an attempt at the assassination of Reagan and this contributed to his popularity. His
campaign slogan was: “It’s morning again in America”. Democrats in the 1980s were confronted
with a dilemma: how to come up with a convincing case against Reagan and the answer was
to make the Democratic Party even more to the left. It took positions that were very
advanced, in cultural terms, for the time. On the economic side, Democrats kept proposing
the same things they had proposed since the New Deal: they wanted to increase taxes to
create new social programs and Reagan denounced economic policies. Reagan, for that
reason, called them the “tax and spend Democrats”. Democrats lack ideas, they are “bankrupt of
ideas”. The Democratic candidate was Walter Mondale, he was a progressive, articulate
man but also a very poor debater. He was humiliated by Reagan during the national
debate. Back then Reagan was the oldest candidate to run for the election and so age became
an issue in the 1984 election Reagan outsmarted everyone by saying: “I will not take advantage
of my candidate's youth and inexperience”. In 1984, the election was a shoo-in for Reagan: the
Senate remained in Republican hands.
1986—> during the Mid-Term elections all the House, 1/3 of the Senate, and governors
at a local level are elected. In 1986 the Senate shifted back to Democrats and Reagan
was confronted with a Democratic congress: it is called a divided government. When
Reagan left of ce he was one of the most popular ones, which is unusual for a 2 terms
president.
REAGAN POLICIES
1. Every new president has to deliver a speech to Congress as soon as he is elected. In his
inauguration speech, he presented general ideas, not a precise schedule. He said:
“Government is not the solution to our problems, but it is the problem”. To limit the government's
power he implemented a series of policies. One of his rst initiatives was the foundation
of the New Federalism (1982). He wanted to create a swap (exchange) of power
between national power and government: unfortunately, he had to quit this initiative,
and he decided that the best way to limit the government’s power was nancial,
he decided to cut taxes. In 1982 the Reagan administration proposed a national budget
where taxes were cut, and at the same time, he increased spending on defense. From
an economic point of view, it makes absolutely no sense because the state has to borrow
money from the international market. The amount of American debt was
increasingly higher: before Reagan came into power, the US was a creditor country, but
by the end of Reagan’s presidency, the US had become a debtor nation. The US was
very much in debt to the rest of the world: this meant that the American policy choices
are founded by the rest of the world and it is still the case nowadays. China, Japan, and

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 Europe are funding America and that’s part of Reagan's policy. De cits may be
compensated by debts, but there is another way to balance the debits: suppress social
programs, namely welfare programs. Daniel Moynihan was one of the luminaries
of the 1980s and he explained, in an article, that Reagan’s choices were cynical. He
emphasized the consequences of rising debt, and according to him such an amount of
debt was bound to have massive consequences on social terms. A new incoming
Democratic administration, willing to reform American society and create social
programs will be unable to create them because they will have so much debt to repay,
that it would not be possible to create new social programs. Indeed, Clinton and Obama
never created new social programs: what Moynihan said in the 1980s proved to be true
for the next 40 years. The US is a superpower and no one has an interest to see its
economy in crisis, moreover, they are taking pro ts off the bonds, and nally, they
can put pressure on the USA.
2. He used executive orders (—> presidential decisions that do not require validation by
congress, but only a presidential signature) are an easy way to rule, however, there is a
disadvantage: they are easy to cancel since another president can revoke them. Reagan
did not just issue executive orders, he was also very blunt when deregulating American
society. PATCO was a very in uential trade union, but in 1980 it of cially declared that
it will support Reagan. They organized a national strike in 1981 and demanded
improvement in working conditions and salary. 11000 people went on strike and the
reaction of the Reagan administration was unexpected: he underlined the fact that it was
an illegal strike because, according to the Taft-Hartly Act, national civil servants
could not go on strike and air traf c controllers are part of this category. Although
PACTO supported him, Reagan had no understanding, called up the American army,
and red 11000 air traf c controllers. This was a brutal reaction that had a huge
impact on future social policies: he broke the power of trade unions. These strikers were
labeled as lawbreakers and the muscular response Reagan gave was not regarded as
controversial
3. Social Security is a form of social help meant to provide retirement money to
senior citizens. Social Security is funded through payroll taxes. In the early 1980s
social security was unable to carry on for much longer: there were too many retired
citizens and so there was a need for Reform. This reformation is the best example of
Reagan the negotiator: Reagan and Tip O'Neil found a compromise to secure the
Social security act, but the condition changed. The age of retirement was pushed back
to 67, payroll taxes were increased, and nally, the amount of pension is
diminished. Even though the conditions were harsher, the social security act was
guaranteed.
4. By the end of the 1980s Reagan’s policy had accomplished many tasks: economic
growth had a price, that William Julius Wilson analyzed. He wrote a book on
poverty in the US: he identi ed a new class of poverty, that he called the “underclass”.

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 They are trapped in a cycle of cumulating poverty: they do not have a job, and their
family background is unstable, drug-addicted, and segregated. All those conditions apply
to a single person and, despite his/her effort he/she couldn’t escape from poverty.
By cutting taxes on the wealthy, on the top level Reagan promote economic growth, and
eventually, the whole society will be wealthier. By cutting taxes on the wealthier, those
people will use this money to invest in the economy, and this means economic growth and
job creation for everyone. Wealth will then trickle down from the top to the bottom: this
argument is still purchased (by Macron for example). However, things in the US did not
turn out that way.
5. Party Building—> micro-targeting. Reagan is famous for the way he devoted time and
energy to strengthening the republican party, and this is known as “Party Building”.
Typically, when a candidate is elected he doesn’t spend time and energy to promote the
party. One of the innovations that resulted from Reagan’s investment is hiring advisors.
One of them turned out to be a political genius and invented micro-targeting. Party
started to buy all kinds of private data to identify potential Republican voters. The
assumption here was that many of those data do say something about your political
behavior, even if they are hidden information. The Republican Party in the 1980s
organized campaigns to nd potential voters: they practiced canvassing (—> they gave
candidate materials door to door). By the end of the 1980s, the Republican Party was an
election machine that was highly ef cient to turn out the votes.
6. Supreme Court/ Rehnquist/Scalia. The Senate is a Republican institution, and Reagan
was able to shape Supreme Court. In 1986 we had 2 nominations from Reagan:
Antony Scalia was one of the most well-known scholars of the time and he advocated
an “originalist” reading of the constitution. He also nominated Rehnquist and
appointed him as Chief Justice and he profoundly reshape American society. For
Reagan, those appointments to the supreme court meant that his values will outlive his
presidency: it is exactly what happened.
7. Foreign Policy/Evil empire. Reagan was elected as the anti-communist candidate
and in 1985 he described USSR as the “Evil Empire”. He relaunched the Cold War
and by doing that he opened the way for negotiation with USSR. Soviet of cials, namely
Gorbachev, initiated negotiations with the US to limit the number of nuclear devices.
Nowadays, Reagan is widely credited for winning the Cold War: right after he left
of ce the Berlin War disappeared and this is the end of the Cold War. In 1991 the USSR
ceased to exist and in the mind of many Americans, the reason for the soviet collapse was
Reagan: he had defeated the archenemy of the US, however, this is not a historical fact.
The perception is clear: Reagan is the winner of the Cold War and, for answering the
question we raised before: why he has become the hero? And the answer is that he is
perceived as the one who won the Cold War and, by doing that he raised the
stigma of Vietnam, the only war that America lost. He restored American pride after

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Vietnam, so he will always be remembered as a hero, even though his social policies
lead to strong inequality.

 Week 3 – The Conquest of the

Judiciary: The Making of the
Rehnquist Court
On the PowerPoint, we have a list of cases that we will analyze. The starting point for us is
saying that judicial power is a political resource for the presidency. Ever since the
beginning of the republican domination, presidents have considered that nomination to
Supreme Court is a way of shaping the National Political debate, and Politics in the
Country. In the 20th century, Presidency went one step forward: Many presidents concluded
that the Supreme Court could be turned into a political weapon to preserve and protect
the achievements of the president who made the appointment. The rst president who
launched a campaign to reshape Supreme Court was Roosevelt in the 1930s. The Supreme
Court, in particular, Schechter has blocked and canceled most of the New Deal. In 1945
Roosevelt turned the Supreme Court into a progressive institution. He appointed Justices in
favor of social changes. Conservative Republicans did the same thing: Nixon and Reagan
launched their campaign to shape the Supreme Court. The Supreme Court America has
nowadays is the result of the conservative campaigns of the 1980s. The Supreme Court is the
Storm Center of American politics, as David O’Brien states in his homonymous book. He
argued that Supreme Court is at the core of politics because all sides try to capture it.
What makes the supreme court so important?
The court has one speci c power, which is known as Judicial Review: the Court has the
power to give meaning to the Constitution, and construct the constitution. This power
was not described in the Constitution, but it is the result of a later decision of the court:
Marbury versus Madison (1803). In 1803 there was a strong reaction and also the
president of the time, Jefferson, was very critical, and for that reason, for some time the Court
didn’t use his power, we should wait until the 1850s to see legislation proclaimed by Justices.
The constitution itself is much more modest in terms of power by the court: the court can
interpret the constitution but has one limit. It can cancel legislations that are explicitly
against the constitution. In one of the articles of the Federalist’s paper (—> 85
articles written between 1787-1788 to defend the constitution. They explain the meaning of
the constitution. The authors are Hamilton, Madison, and Jay) Hamilton explains the
working of the Supreme Court, that would be a weak institution. He also explains that the
Supreme Court has no means to impose its ideas, but in 1803 the whole landscape
changed completely.
How do we interpret the Constitution?
There are 2 doctrines:
1. Living Constitution says that we have a constitution dating back to the 18th century.
Society has changed since the late 18th century, people don’t have the same values and

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 so, our job as Justices is to update the meaning of the Constitution according to the new
values of the time, to the social context. This doctrine has been the backbone of judicial
interpretation from the 1930s to the late 1960s and then things changed. Then, the
new generations started to criticize this doctrine. The main criticism is that this Living
Constitution doctrine gives immense power to Justices and the problem is that those
Justices are not elected. 9 unelected Justices are free to impose their values on the rest
of the Country: it is undemocratic, and it gives too much power to unelected Justices.
2. Those in favor of Originalism said that Justices should go back to what the Founding
Fathers intended. They should check every single paper of the Founding Fathers, and
the only job of the Justices is to use their ideals to read the Constitution. This
doctrine gives less power to Justices and their power of interpretation is limited.
What did conservative Republicans do with the Supreme Court?
In 1968 Nixon's campaign the Supreme Court was one of the hottest issues. What
Nixon said was that the Justices of the Court had misused their power. According to him,
Judges of the Supreme Court have become “activists”, while Justices have to practice self-
restraint. The Warren Court had initiated the “Rights Revolution”: it lead to black
Emancipation, but it also granted a whole series of new rights to citizens:
A. The Miranda Decision (1966) regulates the way police of cers must behave when
arresting someone: “You have the right to remain silent…”. Miranda was meant to
protect individuals arrested by the police, but it is a reading of the constitution.
B. Griswold decision—> the court said that Americans had the right to privacy (the
right to be left alone). It is not written in the constitution but the result of a reading of it.
This decision will in uence women: they have the right to privacy and so, they are free to
have an abortion.
Conservators advocated self-restraint, and Nixon said he would elect Justices to avoid
activism. Then he appointed a series of new Justices who were professionals: people who
have never been politicians. Earl Warren before having been Chief Justice was the governor
of California and so Nixon said that he don’t want any new politicians because they tend to
create new policies. In 1971 he appointed William Rehnquist (in 1986 he will become
Chief Justice). The Burger Court (after Warren) wanted to nd a centrist position, here
are some decisions taken by this Supreme Court:
1. Roe v. Wade—> National right for abortion and it was based on the fact that women
have a right to privacy
2. Buckley v. Valeo—> this was a decision on campaign nance. It ended nancial
regulation that have been voted in 1974. It ended private funding for the campaign
3. Bowers v. Hardwick—> Gay sex was unconstitutional and forbidden

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The rise of a Conservative Court

The switch to conservatism occurred in 1986 with the nomination of Antony Scalia:
the main thinker behind originalism, and the elevation of Rehnquist as Chief Justice.
The Rehnquist Court is very famous for its stability: they behaved as a xed block in the
Court, in fact from 1994 to 2005 the people who were in Court remained the same. Together
they imposed a series of changes in American Society. The Rehnquist Court was composed
of Sandra Day O’Connor (1981), Antony Scalia (1986), Antony Kennedy (1988), and
Clarence Thomas (1991). They all were professionals of the law and this was the result
of the choices made by republican presidents who, since Nixon, had constantly said, that they
wanted to appoint only professionals of the law, not politicians. Progressive justices are
more likely to have been of cially elected and have been politicians before being appointed
as Justices: this is the case, for example of Earl Warren. According to conservators,
progressive justices are failed politicians and they continue behaving and legislating from
the bench. They continue to behave as if they were politicians and they make politics from
the bench. Because of this criticism then, conservative presidents vouched to appoint justices
that would practice self-restraint, and to make sure that those justices would practice self
restrain, conservative presidents chose professionals (lawyers, academics) and refuse to choose
former politicians. A group of legal scholars, the “Federalist Society” was an association
created by students who denounced the progressive decisions taken by the Warren Court
and its activism. Instead, they were in favor of self-restraint and originalism. The Federalist
Society had grown into a major association playing a decisive part in American Politics: it is
now the society choosing who the conservative nominees can be. It started to gain power
throughout the 1980s. The con rmation program was not a big deal since the 1950s, but then
it became very meaningful. Have those professionals of the law have they ever practiced self-
restraint? Of course not, they came up with their brand of activism. The Rehnquist Court is
known for the number of legislation that they declared unconstitutional. The Rehnquist court
canceled more legislation than any other Supreme Court of the past: it was the more activist
existing in the US. The conservative candidates nominated by Reagan were
interviewed by the Senate and typically senators always asked the same things: What they
would do in such or such situation. One of the standard questions was: What would you do to
protect Row v. Wade? Nominees tried to avoid answering and never going into speci c: “I will
be applying and enforcing the law”. As far as Row v. Wade is concerned another typical
answer of Justices is: “I will respect “stare decisis”, so past decisions and the
presidency. Rehnquist’s Court canceled 39 precedents and 24 Federal laws: It proves to be
even more activist than the Warren court, but they practiced activism for the right.
The Rehnquist court can be divided into 2 periods:
1. 1986-2000 —> it proved to be an activist Court. Printz and Lopez (—> they limited
the commerce power of the government). Casey (1992)—> it was an abortion decision
that limited abortion rights.

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2. 2000-2005—> In 2000 activism reached its peak because the Rehnquist Court decided
the Bush v gore. This decision was so criticized that after 2000 they started
moderating their stands on many issues. For example, Lawrence (2003) canceled
Bowers v Hardwick (1986).
Rehnquist and his allies on the court had one political obsession: to end the impact of
progressive decisions taken since the 1930s, the case law (—> all the past decisions of the
court). The legacy of the progressive decision can be summed up with 2 expressions:
1. Restore National Rights for all Americans—> the best example is Roe v. Wade
(abortion). The Rehnquist Court tried to limit the right to an abortion. The national
right to an abortion is popular among Americans, and it is still the case nowadays.
Rehnquist and his allies, who were very careful, decided that they would never cancel Roe
v. Wade and instead they are up with another tactic, which was to allow state
government to change the way the national right to abortion was implemented. This
decision was illustrated in Casey (1992). It con rmed Roe v. Wade but Casey also said
that state governments could impose conditions, within their local jurisdiction, on
the way abortion is made. This meant that the state government could impose things
like parental noti cation when the woman is a minor, and they could also decide that
abortion clinics should be located outside major cities. Some states even allowed pro-
life demonstrators to organize sittings near abortion clinics to prevent women from
having an abortion: this behavior was justi ed with the rhetoric of “freedom of
expression”. However, the states that allowed it, had to backtrack very quickly. Casey
explained that state government could impose new conditions on abortion, but there was
just one limit: this local condition should never “undo the burden on American women”. Casey
was a typical example of how the Rehnquist Court tried to cancel Progressive
National Rights: they never declared those past case laws unconstitutional, but they
tried to limit them by introducing new decisions. The current supreme court decided a
case, the Shelby decision, and it made it possible for the state to enact election laws
meant to protect the right to vote, but those state election votes aim at preventing
minorities from voting, namely Black Democrats).
2. To limit the power of the National Government—> The Lauper decision (1995)
was a turning point and it dealt with the article I of the Constitution (—> gives a list of
power granted to congress). Among these powers, there is the power of regulating
commerce among states. But what does “commerce” mean? The initial understanding
what to say that commerce was similar to trade in meaning, in other words, it is the
exchange of products. To make things simple, that understanding of commerce lasted
until the mid-1930s. Shechter's decision in 1934 was a shock for the Roosevelt
administration because it said that the whole New Deal was unconstitutional. More
precisely, the court was saying that all the new programs created by Roosevelt gave the
national government new powers that were simply not listed in the Constitution, and so,
in Shechter, it was explained that New Deal was a power grab by the government. The

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 Roosevelt administration reacted very harshly against this decision, it came up with a
plan to reorganize the Supreme Court. The whole idea behind that plan was that
the president would be given the power to name 6 additional Justices. Roosevelt intended
to appoint new Justices who will be supportive of the New Deal: it lead to an outcry by
Republicans who denounced the way the president was trying to end Judicial
independence. Republicans kept on pouncing on the administration. In the mid-1930s
in Europe dictators were ending Judicial Independence: just like Roosevelt. Roosevelt’s
plan was never voted on and implemented but, instead, the Supreme Court changed its
mind regarding the New Deal, and in 1937 the Supreme Court declared the New Deal
completely constitutional. It was constitutional because the commerce clause was
not limited to trade, and had a meaning so vast that it could be the basis for every
governmental action. Since 1937 the overwhelming majority of legislations were
justi ed by the commerce clause: it became the ultimate means to justify everything
the government does. The Civil Rights Act, for example, was justi ed by the commerce
clause. Lauper was a huge surprise because the court declared that the commerce
clause had a limit, just as the government’s power has limits.
These are the 2 topics that the Rehnquist Court tried to address.
Activism by this conservative block reached its highest level in 2000, with the Bush v.
Gore decision. Bush was the elected president, but California didn’t give decisive results.
Both Bush and the Democratic candidate asked for an inquiry. The court, with the Bush v.
Gore decision, essentially grants the presidency to a Conservative candidate, namely
Bush. It was decreed as the worst mistake of the Supreme Court. Activism reached such a
highest level, that it caused public opinion backlash. After that, Rehnquist needed to
moderate their stands on many issues. According to the Political question doctrine, the
Supreme Court should refuse to look at cases that are better to be treated by elected
of cials, for example, they do not accept foreign policy cases. This political question
doctrine could have been used in the Bush v. Gore decision. Chief Justice Rehnquist started to
nd a way to restore the power of the Supreme Court: the block came up with some
new decisions that could peace the left, just as in the Lawrence v. Texas decision. It was a
gay rights decision, it canceled Bowers. What is striking about this case, is that Rehnquist
took the Right of privacy to justify the fact that gay sex was constitutional. In this case, they
accepted the right to privacy, a progressive decision.
The Supreme Court nowadays
The court nowadays and since 2005, is even more conservative than the Rehnquist Court.
The conservative justices, just like Rehnquist, had their political obsessions and they
advocate the fact that they want to take back a “constitution in exile”. For conservative
legal scholars, we have to go back to the constitution without all the progressive
interpretations of the 1930s-1960s. John Roberts is Chief Justice, he is extremely
conservative and very young (when he was appointed he was nearly 50 years old). Samuel
Alito is the justice who wrote the decision that canceled Roe v. Wade. Brett Kavanaugh is

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 another conservative justice, then we have Neil Gorsuch, and nally Amy Barett. Her
domination was a decisive move towards the elimination of Roe v. Wade since she is a
pro-lifer. The Dobbs decision (2022) canceled Roe v. Wade and this decision was
regarded as a very bad omen for the Court. The Court as an institution has to preserve its
legitimacy by being above politics and fair. How do we send a signal that you are
independent and fair? There is one way of doing it: commit yourself to the respect of past
decisions, it is the principle of Stare decisis. Once the decision is taken, it is very unusual to
go back to it and cancel it. This respect for past decisions is the way the court can build its
legitimacy and tell the American public that it is fair and independent: it is essential.
Nowadays, the turn taken by the court is precisely the opposite. The court is currently willing
to overturn past decisions and Dobbs is a decision that is very costly in terms of the
perception of the Court. The current trend is increasingly negative: the court is perceived as
a politicized institution willing to change past decisions for the sake of political values.
This is extremely dangerous since it loses the support of Americans. Citizen United
(2010) in another decision of Roberts court: it impacted campaign nance in the US. It
makes it very easy for wealthy individuals to give money to candidates and invest in their
campaigns. Ever since Citizen United the amount of private money going to campaigns
increased dramatically, for example, Macron, 2017 spent 25 million euros on his campaign,
while in 2016 for the US elections they spend over a billion dollars. All that money came from
lobbies and private investors. This way of pending election is highly toxic because the
average American citizen reacted very badly to the amount of money spent on the campaign.
Elected of cials are responsive rst to their donors and then to their voters: this is
maybe the biggest challenge to American Democracy.

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