I read recently that if one compares the genetic structure of humans to that of dogs, one finds that ninety-six percent of the DNA in the two species is identical. That is a lot of common ground. Yet it may not be enough to draw meaningful conclusions about the sameness of the two creatures. Without suggesting that either of the two Courts discussed in her Article is a "dog," I do think it is fair to say that Professor Sherry has perhaps underestimated the relative importance of the divergent four percent.
Professor Sherry argues that in the defining areas of racial equality and freedom of speech, the Warren Court and the Rehnquist Court have adhered to identical views about the meaning of the Constitution. They have developed and consistently applied the same informing principle governing a state's obligation with regard to treatment of the individual. That commonly recognized principle is formal neutrality. By requiring a state to remain neutral as between races and viewpoints, both Courts have embraced a common philosophy that renders them equally liberal or equally conservative, Professor Sherry contends. It is wrong, therefore, for the academy to revere the Warren Court as liberal and condemn the Rehnquist Court as conservative, in light of their equal recognition of the appropriate equality principle. She goes on to explain why the legal academy insists on these unfair characterizations despite what she calls the "obvious" identity between the two bodies of case law. In this Comment, I do not have occasion to consider the question of why the academy might persist in perpetuating an illusory distinction between the Warren and Rehnquist Courts. Instead, I intend to show that it is the asserted identity, rather than dichotomy, between the two Courts that is illusory. The claimed similarity be- tween the jurisprudence of the Warren Court and that of the current Court can be drawn only at the expense of giving full recognition to the deep ideological commitments of both Courts. The characterization of both Courts as endorsing formal neutrality overlooks the powerful philosophical leanings of both Courts and their respective places in prevailing political theory. Once considered in context, the decisions of the two Courts make clear that a theory of identity between them shares a common flaw with the canine/human equation: even if superficially plausible, it utterly fails to account for the soul.
Professor Sherry has identified neutrality-defined to mean a state's obligation to treat all races with equal solicitude and all views with equal tolerance-as the touchstone of a liberal, enlightened society. But the role of state neutrality in liberal political theory is itself a contestable and complex question. By turning to a more detailed examination of neutrality as a liberal precept, I hope to show that Professor Sherry has confounded two separate schools of liberal thought and has thus reached some inappropriate conclusions about the two Courts' places in these schools of thought. This analysis leads me to conclude that the two Courts have less in common than Professor Sherry suggests and in fact hold to such different views of racial justice as to warrant fully the dichotomous labels they have received.
Rebecca L. Brown,
Formal Neutrality in the Warren and Rehnquist Courts: Illusions of Similarity,
50 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol50/iss2/11