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Mark Tushnet, Alarmism Versus Moderation in Responding to the Rehnquist Court, 78 Ind. L.J. 47 (2003).

Abstract: I begin in Part I by offering a description of the Supreme Court's recent decisions as a less substantial repudiation of prior principles than many think them to be, and as leaving Congress with the means to achieve a quite substantial proportion of the policy goals it pursued in the statutes the Court invalidated. Part II explains why Congress is unlikely to do so, in light of our apparent commitment to divided government, and parties that are organized around distinctive ideologies because of divided government. Part III turns to the prospect for continued policy transformation, identifying the conditions under which either the political branches or the Supreme Court could pursue that transformation, and suggesting that those conditions are not highly likely to be realized. Part IV is a brief conclusion, examining the implications of my argument for advocacy and scholarship.