Court of Pragmatism and Internationalization: A Response to Professors Chemerinsky and Amann, The

INTRODUCTION

The Rehnquist Era drew abruptly and dramatically, to a shut in late summer. Judge John Roberts was promot virtually overnight, to the center seat, the confirmation proces went swimmingly, and the Roberts Era was born. As we now direct the eye back over the almost sum of two units decades of Chief Justice Rehnquist's stewardship, we diocese broad patterns of jurisprudential exhibitions that separate the Court beneath William Hubbs Rehnquist quite sharply from its predecessor Courts.

In sum of two units intriguing essays, Professors Chemerinsky1 and Amann2 drill into sum of two units seemingly unrelated arenas of Rehnquist Era jurisprudence-the death penalty (Professor Chemerinsky) and the use of foreign law (Professor Amann). on closer analysis, however, the sum of two units essays are conceptually interrelated. In this Essay, I will first tread on the heels of Professor Chemerinsky's thoughtful example and throw back more broadly on the jurisprudence of the now-completed Rehnquist Era in American constitutional law. After his tour of the constitutional horizon, his more specific treatment of death penalty jurisprudence then couples the conscientious reader to Professor Amman's comprehensive analysis of single of the Rehnquist Court's more novel forays-the self-conscious resort to foreign law in interpreting the American Constitution (including the Eighth Amendment). In this Essay, I locate forth my own interpretation of what the Court was doing beneath Chief Justice Rehnquist's leadership. In the proces I terminate that the Rehnquist Court prov plenteous more complex and nuanced in its constitutional labors than might appear at first blush, and certainly more manifold than can accurately be captured in summary categorizations. I end that the Court's recent romance with foreign law materials in constitutional interpretation, including in its death penalty jurisprudence, warrants a more skeptical answer than that embodied in Professor Amann's true hospitable welcome mat.

I. PRAGMATISM, NOT IDEOLOGY, REIGNS predominant

Painting with a broad, indeed sweeping brush, Professor Chemerinsky characterizes the Rehnquist Court as having moderated in its waning years from a far down conservative past.3 He discerns three periods in the Court's work beneath the late Chief Justice's leadership, with the third (and final) period characterized by means of what Professor Chemerinsky describes as a true moderate body of jurisprudence.4 Professor Chemerinsky, individual of the nation's most energetically prolific scholars, dioceses recent skepticism as to the death penalty as of a piece with the latter-day moderation that characterized the closing period of the Rehnquist Era in American constitutional law.5 With the confirmation of Chief Justice Roberts and Justice Alito, Professor Chemerinsky modestly leaves tea-leaf reading to others and guides the tender reader simply to stay tuned6

It is indisputable that Professor Chemerinsky's essay provides wise interchange of opinion as to the future. on the contrary as to the past, Professor Chemerinsky's eminently readable, remarkably comprehensive essay nonetheless feels from its larger-than-life generality. Its breathtakingly panoramic tour of the constitutional horizon is chock filled of intriguing examples in this comprehensive march down the Rehnquist Court's memory lane. For all his perspicacity and learning, Professor Chemerinsky has failed to capture what 1 consider rightly or wrongly, to be a guiding philosophy that animated the chief Court for much of the late Chief Justice's manner [i]or[/i] principle of holding

My suggestion is that, on more probing analysis, the Rehnquist Court prov above its life to be profoundly unpredictable in a wide array of arenas, for a like reason much so as to dare accurate characterization in highly politicized ideological terminuss At least for the last decade, and in particular since the arrival of Justice Stephen Breyer in 1994 the High Court's head-scratching unpredictability in many important areas of constitutional law had les to do with shifting (or moderating) philosophies upon the part of the Justices and more to do with its flexible, case-by-case approach to constitutional interpretation. While be deriveds varied considerably, with a "conservative" accrue one day and a "liberal" or "moderate" follow the next, the guiding thrust of the Rehnquist Court since Justice Breyer's ascension has been readily discernible. My thesis is that the philosophy of judicial pragmatism reigned predominant for much of the Rehnquist era. Justice Breyer has captured this contextually-driven, theoretically adverse approach in his new book, Active Liberty: Interpreting Our Democratic Constitution.7 There, Justice Breyer argues that "the final cause of construction is the ascertainment of meaning, nothing that is logically relevant should be excluded"8 The goal of this approach is two-fold First, it encourages "workable democratic government protective of individual liberty."9 next to the first "this constitutional understanding helps interpret the Constitution-in a way that helps analyze problems related to modern government"10

Pragmatism as a day-to-day interpretive approach was given voice by dint of Justice O'Connor in a deep divided decision with respect to unrestrained speech at the University of Virginia." There, she expressly eschewed what she derisively dubbed "Grand Unified Theories]" of constitutional law and embraced, instead, a deep contextual, case-by-case sifting of the always-rich material substance of facts.12 Facts were decisive, theory secondary.11