Rehnquist the Great?

Even liberals may come to regard William Rehnquist as one of the most successful chief justices of the century

In his thirty-four years on the Supreme Court, William Rehnquist participated enthusiastically in the annual Christmas party for the justices and their clerks. "He and I wrote the Christmas show the year I clerked for him, in 1975," recalls Craig M. Bradley, who now teaches law at Indiana University.

One carol that year was sung to the tune of "Angels From the Realms of Glory." It went like this: "Liberals from the realm of theory should adorn our highest bench / Though to crooks they're always chary / at police misdeeds they blench." ("The word 'blench' came from Rehnquist," Bradley says. "I didn't know it meant 'blanch.'") The members of the chorus then fell to their knees and sang, "Save Miranda, save Miranda, save it from the Nixon Four." The so-called Nixon Four were Supreme Court Justices Warren Burger, Harry Blackmun, Lewis Powell, and, of course, Rehnquist.

Twenty-five years later, after having repeatedly ridiculed the constitutional soundness of the decision requiring police officers to read suspects their Miranda rights, Rehnquist voted to uphold it. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," he wrote in a 7—2 opinion for the Court in Dickerson v. U.S., in 2000. Rehnquist's apostasy provoked one of Justice Antonin Scalia's most vitriolic dissenting opinions. Joined by Justice Clarence Thomas, Scalia declared, "Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."

From the archives:

"Crime, Confessions, and the Court" (September 1966)
"Coddling criminals" and "handcuffing the police" are the latest bitter charges aimed at the Supreme Court. In fact, the stormy course the Court has followed through its Escobedo and Miranda decisions is much simpler, if subtler, than most of its critics realize. By Robert Cipes

Rehnquist's evolution from Miranda's leading critic to its improbable savior infuriated conservatives and confused liberals; but in fact it was emblematic of his career. Throughout his long tenure, liberals always simplistically lumped Rehnquist together with the other conservatives on the Court, whereas conservatives never fully embraced him as one of their own. Furthermore, liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him. And his administration of the Court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years.

The chief justice, like each of his colleagues, has one vote; his greatest power lies in choosing who will write an opinion when he's in the majority—himself or another justice who he thinks will best reflect his views. On this score Rehnquist proved to be a master tactician, unlike his inept and pompous predecessor, Warren Burger, who infuriated his colleagues by changing his votes in order to seize the best opinions for himself and then losing his majorities. And Rehnquist's judicial philosophy also made it easier for him to reshape the Court in his own image. He was essentially a pragmatist who believed in certain core conservative values—primarily states' rights and convicting criminals—but didn't fuss too much about how he achieved his aims. In contrast, Scalia and Thomas are more concerned about ideological purity than about persuading a majority of their colleagues, which is why neither would make an effective chief.

One of Rehnquist's unique and abiding talents was for getting along with his ideological opponents. When he first joined the Court, at the age of forty-seven, he was taken under the wing of the liberal activist William O. Douglas, a fellow westerner who saw in the irreverent young conservative an incarnation of his youthful self. Rehnquist's other liberal colleagues were similarly impressed by his fairness and good nature: Thurgood Marshall called Rehnquist "a great Chief Justice," and William Brennan described him as "the most all-around successful" chief he had known—including Earl Warren. On the current Court, Rehnquist has been praised frequently and effusively by Ruth Bader Ginsburg, who, despite her philosophical differences with the chief justice, admires his administrative skills so much that after the complicated campaign-finance case last term, she told clerks how happy she was that the rumors he was retiring weren't true. One former clerk remembers Rehnquist best for his sensitivity toward colleagues: "He was very concerned about hurt feelings among the justices, and he was very careful and observant of the way that certain memos or interactions would make other justices react or feel. He always avoided invective in his own memos, and smoothed over hurt feelings when other justices used it."

A hallmark of Rehnquist's rule was his unparalleled organizational skill: he got opinions out quickly and made the arguments run on time both in and out of court. When, in a rare interview last year, Charlie Rose asked him how he would most like to be remembered, Rehnquist said as a good administrator; he had tried, he said, to run "a relatively smoothly functioning Court." And he suggested that his ability to get along with a group of strong personalities reflected "a relatively passive nature," a "very high boiling point," and the ability to compromise.

Certainly he was a creature of habit; his daily routine in his chambers remained the same for more than thirty years. He would arrive between 8:30 and 9:00, say hello to his two secretaries, go through his mail, and smoke a cigarette (for years he was a two-cigarettes-a-day man—no more, no less). At exactly 9:30 he would call in his clerks, gently reminding them, if they were even a minute late, that "the doctor doesn't wait for you." A trivia buff, he loved to test the mettle of his clerks at the morning meeting, asking them, for example, to name the five largest states in order of their area. He would often go to the University Club for a swim, to alleviate chronic back pain, and he usually left the office at 4:00. He was not known for taking work home with him. When he assigned the writing of an opinion to himself, he would set a deadline for the first draft ten days away and then start asking his clerks about it after a week. He was insistent that his fellow justices meet his exacting standards for punctuality, and would punish those who fell behind on their opinions (including the notoriously slow Harry Blackmun) by not assigning them new ones. And he ran an especially tight ship during the justices' private conferences, the twice weekly meetings after oral arguments, at which the justices cast their preliminary votes. Briskly going around the table, in order of seniority, to allow each justice to give his or her views, he refused to let discussion wander. Some colleagues complained that this format discouraged active debate, but Rehnquist argued that because most of the justices had already made up their minds, a protracted colloquy would be a waste of time.

Rehnquist's courtroom style was similarly unvarying. He would cut lawyers off in mid-sentence when the red light on the bench began to flash, indicating that their allotted time had expired. (Each side gets precisely thirty minutes.) Some lawyers grumbled about this rigidity, but Rehnquist's clockwork discipline looked appealing in retrospect when Justice John Paul Stevens, who has presided in the chief justice's place during his battle with thyroid cancer, recently let one advocate have extra time and was then compelled to grant an extension to his opponent as well.

The two chief justices Rehnquist most admired,John Marshall and Charles Evans Hughes, were both politicians who had a knack for bringing together unlike-minded colleagues: Marshall, who served from 1801 to 1835, had been a Virginia congressman and secretary of state; Hughes, who served from 1930 to 1941, had been the governor of New York, a Republican candidate for president, and secretary of state. As Rehnquist told the C-SPAN interviewer Brian Lamb in a Booknotes appearance in 1993, Marshall had "an ability to get along with other people and persuade them that stood him in good stead when he was chief justice." And in a 1976 article in the Hastings Constitutional Law Quarterly, "Chief Justices I Never Knew," Rehnquist wrote that he especially admired Hughes's businesslike conduct of his private conferences, which lasted only six hours as opposed to the two or three days under Hughes's successor, Harlan Fiske Stone. Rehnquist concluded that "Hughes's superiority to Stone in presiding over the conference has a definite connection to their different amount of exposure to active political life."

Rehnquist's own political sensibility and experience were similarly central to his stewardship of the Court. By temperament and training he represented an older and what has come to be seen as milder strain of conservatism, rooted in the Goldwater wing of the Republican Party. Having cut his political teeth in Arizona in the heyday of Goldwaterism, he came to the Court with a far less angry and embattled attitude toward American democracy than younger conservatives like Scalia and Thomas. And unlike Scalia and Thomas, Rehnquist was never invested in fighting the culture wars from the bench, because of his overriding commitment to majority rule regardless of what the majority decides.

If judicial activism is defined by a judge's willingness to strike down federal or state laws, then Scalia and Thomas are among the most activist justices on the Court today, surpassed only by Anthony Kennedy and, perhaps surprisingly, Sandra Day O'Connor. In contrast, Rehnquist is tied with Stephen Breyer for the role of second most restrained justice, after Ruth Bader Ginsburg. And while all the conservatives on the Rehnquist Court say for public consumption that the judiciary should occupy a modest role in American politics and should defer to the judgment of elected legislators, Rehnquist has most consistently practiced what he preaches.

''I'm a strong believer in pluralism," Rehnquist told The New York Times Magazine in 1985, the year before he was appointed chief justice. "Don't concentrate all the power in one place … You don't want all the power in the Government as opposed to the people. You don't want all the power in the Federal Government as opposed to the states." When pressed about the source of these views, he joked, "It may have something to do with my childhood."

Rehnquist's Robert Taft—style conservatism—his faith in local majorities and his suspicion of broad federal power—does indeed reflect his midwestern upbringing. Born in 1924, he was raised, along with his sister, Jean, in Shorewood, Wisconsin, an affluent Milwaukee suburb known during the Depression for its Republicanism. Rehnquist's father, the son of Swedish immigrants, was an enthusiastic Republican who had never attended college and made his living selling paper wholesale. His mother, who had majored in French at the University of Wisconsin, was fluent in five foreign languages and worked as a translator for local export businesses.

Rehnquist's early years were suffused with old-fashioned patriotism. He enthusiastically supported U.S. intervention in World War II, and in 1941 he participated in a re-enactment of America's founding called United States of Young Americans. That strong strain of patriotism has been an essential part of his makeup throughout his judicial career. In 1989, when Justices Scalia and Kennedy, both First Amendment libertarians, reluctantly voted to strike down a ban on flag-burning, Rehnquist produced an emotional dissenting opinion quoting John Greenleaf Whittier's Civil War poem "Barbara Frietchie": "'Shoot, if you must, this old gray head, / But spare your country's flag,' she said." It was one of the most personally revealing dissents he ever wrote.

Rehnquist won a scholarship to Kenyon College, in Ohio, but dropped out after one quarter, having found the atmosphere intellectually frivolous. He enlisted in the Army Air Corps and spent three years as a weather observer, ending up in Morocco and Egypt (where he was photographed on horseback in front of the Sphinx). Reluctant to return to the cold Milwaukee winters ("I wanted to find someplace like North Africa to go to school"), he enrolled on the GIBill at Stanford, where he majored in political science.

While he was in the Army Air Corps, Rehnquist encountered a book that would be crucial to the development of his judicial philosophy: Friedrich A. Hayek's The Road to Serfdom. "This book was an advocacy book trying to show that state planning and socialism and that sort of thing didn't work economically and were dangerous politically," Rehnquist told Brian Lamb in a later Booknotes interview. "It made quite an impression on me."

Rehnquist graduated Phi Beta Kappa from Stanford in 1948 with a bachelor's and a master's degree, and then got a second master's degree in political science from Harvard, in the hopes of becoming a professor of government. While at Harvard he started a thesis about the conservative British political philosopher Michael Oakeshott, whose insistence on the importance of continuity and tradition for social stability resonated strongly with Rehnquist. Oakeshott, like Hayek, called into question the centrally planned welfare state, as part of a larger warning against the concentration of power in the hands of government. But Oakeshott resisted Hayek's effort to construct a rigid libertarian ideology as the answer to collectivism; he argued that the best way to protect limited government was with a pragmatically conservative approach to politics, rather than with abstract theories about the true nature of the state.

"The chief's conservatism seems to reflect Oakeshott more than libertarians like Hayek," observes Richard Garnett, a former clerk who now teaches law at Notre Dame, and with whom Rehnquist discussed his admiration for Oakeshott. "It's not always about swashbuckling ideological adherence to first principles. It's also about temperament and disposition, about an attachment to traditions and institutions, and about stability and regularity."

From Atlantic Unbound:

Flashbacks: "Looking Back at Brown v. Board of Education" (May 17, 2004)
Articles from 1954 and 1960 offer a look at how the Supreme Court's landmark desegregation ruling was initially received.

After Harvard, Rehnquist attended Stanford Law School and graduated in 1952 at the top of an impressive class that included Sandra Day O'Connor. Based on his stellar academic record and genial personality, he won a clerkship with Supreme Court Justice Robert Jackson, who had been Franklin Roosevelt's attorney general and was committed to the principle of judicial deference to legislatures. During his clerkship, which began in 1952, Rehnquist wrote two highly controversial memos to Jackson that would provoke firestorms during his own confirmation hearings, in 1971 and 1986. In the memos Rehnquist seemed to urge Jackson to dissent in two historic civil-rights cases: Brown v. Board of Education, which would strike down school segregation, and Terry v. Adams, which would block efforts to exclude blacks from the pre-primary selection of Texas Democrats. Rehnquist claimed during the hearings that he was expressing these views at Jackson's request—an assertion disputed by Jackson's secretary. Several legal scholars believe that Rehnquist probably lied in denying that the views were his. He appears to have been the only Supreme Court clerk during the 1952 term who supported Plessy v. Ferguson—this at a time when the country as a whole was evenly split over desegregation. Whether he was speaking for himself or for Jackson, the central position that Rehnquist laid out in the memos—stressing the importance of judicial deference to the majority will—succinctly summarized what would become his judicial philosophy throughout his career.

In the Brown memo Rehnquist wrote that the Supreme Court was ideally suited to mediate disputes between the states and the federal government or between branches of the federal government. In contrast, he said, "where a legislature [is] dealing with its own citizens, it [is] not part of the judicial function to thwart public opinion except in extreme cases." Brown was not one of those cases, Rehnquist argued, because "in the long run it is the majority who will determine what the constitutional rights of the minority are." Similarly, in Terry v. Adams, Rehnquist insisted that "the Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time that the Court faced the fact that white people in the South don't like the colored people."

As jarring as these memos appear now, they are consistent with the views of many political scientists today, who argue that the Court, except in rare cases, neither can nor should thwart the will of a determined national majority, and that it invites political backlash when it attempts to do so. After Rehnquist joined the Court, he was asked whether justices are able to isolate themselves from the pressures of public opinion. "My answer was that we are not able to do so, and it would probably be unwise to try," he recalled. Rehnquist's highly evolved pragmatism convinced him that the courts cannot ignore broad cultural shifts. This, as much as anything, distinguished Rehnquist from the later generation of judicial conservatives.

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Jeffrey Rosen is a law professor at George Washington University and the legal-affairs editor of The New Republic. He profiled the former attorney general John Ashcroft for The Atlantic last April.

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