Rehnquist pushed court to the right
But the high court exhibited a stingy reluctance to go as far as chief justice wanted.
Sept. 4 & 6, 2005
By Warren Richey| Staff writer of The Christian Science Monitor
WASHINGTON — The saga of William H. Rehnquist at the US Supreme Court is very much the story of a long-term Republican campaign to conquer an institution that had become a citadel of liberal power in the 1960s. What is perhaps most remarkable about that campaign is how difficult it has been for the Republicans to win.
During Mr. Rehnquist's 19 years as chief justice, the high court exhibited a stingy reluctance to be remade in a conservative mold. Now, with the passing of the chief justice on Saturday evening, legal historians and constitutional scholars are assessing the Rehnquist legacy. It is an assessment that began months ago amid speculation of Rehnquist's possible retirement. He is being called a highly effective chief justice, both in terms of his impact on the law and the efficient and congenial way he managed an institution often at the center of America's white-hot culture wars.
Others say his influence was undercut by the dynamics of a splintered court largely controlled, in high-profile cases at least, by two centrist swing voters - Justices Sandra Day O'Connor (who announced her retirement July 1) and Anthony Kennedy. In the end, the high court never emerged under Chief Justice Rehnquist as a conservative juggernaut.
The counterrevolution that wasn't
To some relieved liberals and disappointed conservatives, the Rehnquist era might be remembered as "the counterrevolution that wasn't," says Tinsley Yarbrough, a Supreme Court biographer and historian . But it was not for lack of presidential effort. Since 1969, 10 of the last 12 justices have been appointed by Republican presidents. And while the court's center has shifted to the right, the so-called Rehnquist court nonetheless retained a penchant for producing major liberal landmarks.
Over Rehnquist dissents, the high court upheld abortion, affirmative action, gay rights, online pornography, and flag burning. It struck down capital punishment for juveniles and the mentally retarded, ordered the all-male Virginia Military Institute to accept female cadets, and struck down state regulation of so-called partial-birth abortions. This is not exactly the wish list Republican Presidents Nixon, Ford, Reagan, and the first President Bush may have had in mind when selecting their Supreme Court nominees. But such liberal victories should not obscure the broader significance of Rehnquist's legacy, analysts say.
Rehnquist joined the court in 1972 and served for many years as a lone dissenter, staking out a conservative jurisprudence that he hoped would one day become the binding law of the land. But even after rising to chief justice in 1986 and watching four fellow Republican nominees join the court, Rehnquist was unable to assemble a majority of justices willing to take the court - and the nation - as far to the right as he wanted to go.
But that doesn't mean his contribution at the high court hasn't been historically significant. "Someone can have a huge effect on shaping our constitutional jurisprudence even if on some of the 'big cases' they are on the losing side," says Richard Garnett, a former Rehnquist law clerk who is now a professor at Notre Dame Law School.
"Chief Justice Rehnquist changed the conversation. He brought back to the table certain ideas about limited government, federalism, and texturalism," says Professor Garnett.
At the top of the list of Rehnquist accomplishments, analysts say, is the revival of federalism, the idea that the US Constitution requires that federal and state power be properly balanced. "It dramatically changed the direction of constitutional law," says William Marshall, a law professor at The University of North Carolina at Chapel Hill.
In 1995, the high court did something it hadn't done in 60 years - it struck down an act of Congress for exceeding Congress's authority under the Constitution's provision concerning interstate commerce. In declaring the Gun-free School Zone Act unconstitutional, the court said the federal law intruded into an area reserved for state and local governments. Rehnquist had begun laying the groundwork for that decision 20 years earlier in a lone dissent filed in a 1975 case called Fry v. US.
"There can be no more fundamental constitutional question than that of the intention of the framers of the Constitution as to how authority should be allocated between the national and state governments," the junior justice wrote. He might as well have written those words in Swahili. It was his third term on the high court, and not one of the eight other justices agreed with him. But as Duke Law School Prof. Walter Dellinger has pointed out, Rehnquist's 1975 dissent is important because it previews much of what two decades later would emerge as a full-blown federalism revival, mandating a renewed emphasis on state sovereignty.
Since 1995, the same 5-to-4 majority with Rehnquist at the helm has asserted in a series of decisions that the national government had grown sloppy in its adherence to the state-federal balance of power established by the Founding Fathers. "He fired the shots across the bow of Congress, and he has gotten the lower courts to pay attention to these things," says Michael Dorf, a professor at Columbia University Law School.
Not everyone was pleased. Critics on the left said the high court was preparing to reverse the New Deal and to undermine national legislation enforcing civil rights and environmental protections. Critics on the right said the court's decisions weren't bold enough - sparking more polite debate than genuine constitutional revolution. Although the Rehnquist court failed to overturn many liberal precedents of the 1960s and 1970s, it has limited many of them - including the abortion precedent, Roe v. Wade, and the Miranda decision requiring police to inform criminal suspects of their rights prior to questioning them.
"The highest points I give Rehnquist is for his sense of long-term judicial strategy," says
Jonathan Turley, a constitutional law professor at George Washington University Law School. On the Miranda issue, for example, Rehnquist had consistently objected to the ruling as an example of judge-made law under the guise of constitutional interpretation. But in 2000, when a case challenging Miranda came before the court, Rehnquist was unable to assemble a conservative majority willing to overturn it. Instead, he joined the majority in upholding Miranda as a constitutional rule - but the opinion he wrote also upheld limitations on the Miranda rule imposed through earlier decisions supported by Rehnquist.
"There are so many exceptions to Miranda that it was easy to uphold it," Professor Turley says. Rather than being a defeat, the limited scope of Miranda - even after being upheld - was a sign of Rehnquist's success, he says. Even Roe v. Wade, the 1973 case that established a constitutional right to abortion, has been cut back in important ways by the Rehnquist court, analysts say. "It is true that Rehnquist would go further," overturning Roe completely, says Turley. "But all these massive doctrines [that permit abortion] were changed dramatically under Rehnquist's watch."
While Rehnquist's agenda has largely sprung from the right, on notable occasions he and the court's conservative wing failed to behave as conservative jurists. History will remember that it was the Rehnquist court that intervened in the 2000 election in a way that favored the Republican candidate, George W. Bush. A media-run re-count of the ballots in Florida found that Mr. Bush would have won anyway. But many constitutional scholars have criticized the court for entering the political fray and appearing to act out of political motivation.
In other areas, civil rights enforcement became less of a priority under the Rehnquist court. The majority justices have made it easier for police officers and federal agents to fight crime, and harder for criminal defendants to claim constitutional and other protections. The court has also upheld congressional restrictions on the use of habeas corpus petitions, particularly by death-row inmates.
The court under Rehnquist has taken a more relaxed view of the separation of church and state, expressing concern that rigid enforcement of the First Amendment's prohibition of congressional "establishment of religion" can lead to government hostility toward religion and the religious. Instead, the court has stressed that government must maintain a position of neutrality in matters of faith.
The high court applied this approach in 2002, when it voted 5-to-4 to uphold a school-voucher program in Cleveland, even though the program required taxpayer money to be spent on tuition in private religious schools. But two years later a different 5-to-4 mix of justices struck down an Arizona plan that established a state tax credit for those paying parochial-school tuition. William Hubbs Rehnquist is a native of Milwaukee. During World War II he served in the Army Air Corps as a weather observer in North Africa. After the war he attended Stanford University, Harvard University, and Stanford Law School, where he graduated first in his class. (Sandra Day O'Connor graduated third in the same class.)
In 1952, he clerked for Supreme Court Justice Robert Jackson. Later, he worked as a lawyer in Phoenix and became active in Republican politics. He served in the Nixon Justice Department as assistant attorney general in the Office of Legal Counsel, which helps screen potential Supreme Court nominees. In 1971, Rehnquist himself got the nod from Nixon. He was confirmed by the US Senate, 68 to 26. Overall, Rehnquist served 33 years on the high court. He wrote four books on Supreme Court history. In his spare time he enjoyed poker and tennis. His wife, Natalie, passed away in 1991. The couple has three children and nine grandchildren.
A Supreme Court spokeswoman said the three children, Janet Rehnquist of Arlington, Va., James Rehnquist of Sharon, Mass., and Nancy Spears of Middlebury, Vt., were with the chief justice at his Arlington, Va., home Saturday evening when he passed away.
