Rehnquist the Great?

Even liberals may come to regard William Rehnquist as one of the most successful chief justices of the century
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After his Supreme Court clerkship ended, in 1953, Rehnquist moved to Phoenix, always in search of warm weather and conservative politics. He joined a small law firm and became active in local Republican circles, which had been revitalized under the newly elected Senator Barry Goldwater. A decade later Rehnquist would write speeches for Goldwater's ill-fated 1964 presidential campaign, which united disparate parts of the conservative movement while alienating the liberal Rockefeller wing of the Republican Party. His speeches for Goldwater singled out for attack the Warren Court's landmark decisions requiring school busing. But unlike the Dixiecrats, who fought to protect the power of local communities to enforce traditional values, Goldwater was no social conservative, as his later support for birth control and gay rights would attest; he was a populist who ardently opposed the excesses of federal, state, and local authority. Although Goldwater dutifully denounced the Warren Court's liberal obscenity and school-prayer decisions, he had little patience for his party's growing moralistic forces, which insisted that Christian virtue, rather than liberty, should be the Republicans' highest calling. The Republican Party of the 1960s, for all its associations with extremism at the time, seems in retrospect a less strident and more inclusive organization than the party of today.

In 1957, after the Warren Court issued a series of controversial decisions protecting the rights of suspected Communists, Rehnquist, then a young lawyer, wrote an article in U.S. News & World Report criticizing the law clerks he had known for their predominantly "'liberal' point of view," which he defined as "extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren." Rehnquist also strongly disagreed with the Warren Court's prominent role in advancing the civil-rights movement. Testifying as a private citizen before the Phoenix City Council in 1964, he opposed a local public-accommodations law, charging later that it would summarily do away with "the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers." That same year Rehnquist had urged Goldwater to vote against the Civil Rights Act. During his 1971 confirmation hearings Rehnquist said that he had changed his mind about public-accommodations laws, acknowledging that he hadn't understood how strongly minorities felt about protecting their rights.

Every political movement has its moral blind spots, and civil rights was certainly a moral blind spot for Goldwater Republicanism. Rehnquist's insistence on deferring to the will of the people is hard to reconcile with his indifference to the then emerging majority of Americans who supported upholding the rights of black people. Goldwater and Rehnquist were never white supremacists, like Strom Thurmond, of South Carolina, and James Eastland, of Mississippi, but they seemed unconcerned that their devotion to states' rights could lead to enshrining racism. (Justice Byron White, a Kennedy Democrat of the same generation who shared Rehnquist's devotion to majority rule, did not make the same mistake.)

Both Goldwater and Rehnquist came belatedly to recognize the error of their ways. Rehnquist ultimately embraced the Warren Court's Brown decision, and after he joined the Court he made no attempt to dismantle the civil-rights revolution, as political opponents feared he would. His change of position reflected not only his reverence for the Court as an institution but also his sense that once a majority has spoken, the decision has a legal force that must be obeyed. Compare Rehnquist's attitude on these points with that of Clarence Thomas, who refuses to accept decisions that he thinks are wrong. Even Scalia has been critical of Thomas for this; as he recently told Thomas's biographer, Ken Foskett, Thomas "does not believe in stare decisis, period." "If a constitutional line of authority is wrong, he would say let's get it right," Scalia continued. "I wouldn't do that."

W hen Richard Nixon was elected president in 1968, he appointed as deputy attorney general Richard Kleindeinst, a Phoenix lawyer who had worked on his campaign. Kleindeinst persuaded Attorney General John Mitchell to hire his friend Rehnquist. As head of the Justice Department's Office of Legal Counsel, which provides constitutional advice to the president, Rehnquist distinguished himself as a conservative intellectual and an enthusiastic defender of executive power in the face of widespread social unrest. The country, Rehnquist said in a Kiwanis Club speech in 1969, had to devote all its energies to countering "the danger posed by the new barbarians." Two years later he staunchly defended the mass arrest of Vietnam protesters. That year, with Justices Hugo Black and John Marshall Harlan retiring, Nixon considered some three dozen candidates to fill the two vacancies, including Vice President Spiro Agnew and Senator Howard Baker, of Tennessee. In an entertaining memoir, The Rehnquist Choice, John Dean, who was the White House counsel at the time and was later instrumental in Nixon's downfall, claims the credit (and also the blame) for being first to float the name of Rehnquist, who then was in charge of screening the other Supreme Court candidates. When Nixon first met Rehnquist, who was given to the loud shirts and psychedelic ties of the era, he wondered aloud, "Who's the guy dressed like a clown?" Upon hearing Rehnquist's name, Nixon said, "Is he Jewish? He looks it." But when the other candidacies fell by the wayside, the man Nixon was prone to call "Renchburg" won him over with his conservative credentials and unquestioned ability.

Rehnquist's first confirmation hearings focused on whether he had been truthful when he denied having challenged black and Hispanic voters as an Arizona poll watcher, and again in his account of one of his pro-segregation memos for Justice Jackson. Although Rehnquist was unanimously praised as an accomplished lawyer, he came under fire from a group of liberal Democrats on the Judiciary Committee, including Edward Kennedy, who charged that his record "reveals a dangerous hostility to the great principles of individual freedom under the Bill of Rights and equal justice for all people." Rehnquist was confirmed by a vote of 68 to 26.

As an associate justice, Rehnquist held fairly steadily to the views expressed in his Brown v. Board of Education memo of 1952. He almost invariably deferred to state legislatures on matters involving individual rights, and struck down federal laws only when he thought that Congress or the president had exceeded the bounds of constitutionally enumerated powers. The only cases in which Rehnquist was consistently willing to question federal power involved states' rights. During his first decade on the bench the most important states'-rights case for which Rehnquist wrote the majority opinion was National League of Cities v. Usery, in 1976; that case heralded the beginning of the so-called federalism revolution, which imposed meaningful limits on congressional power for the first time since the New Deal. In his opinion Rehnquist argued for limiting the federal government's ability to regulate the wages and hours of state and local government employees. The Tenth Amendment, he said, prevents Congress from acting in a way that "impairs the States' integrity or their ability to function effectively in a federal system." Although Rehnquist had mixed success maintaining majorities for this principle in the 1970s and 1980s, by the 1990s he had found at least four reliable allies—Scalia, Thomas, Kennedy, and O'Connor. But by not consistently deferring to Congress, Rehnquist failed to fulfill his oft-stated commitment to judicial restraint; under his leadership the Court indulged in an overconfident rhetoric of judicial supremacy and struck down thirty federal laws in one seven-year period—a higher rate than in any other Court in history.

In most cases, however, Rehnquist voted to uphold federal and state laws. When I re-read his youthful and often solitary dissents, which earned him the nickname "the Lone Ranger," it was hard not to be impressed by their energy, lack of pretense, and lack of anger. "The 1970s dissents were magnificent," says Jack Goldsmith, a constitutional scholar at Harvard Law School. "Rehnquist didn't have an overarching substantive theory of constitutional interpretation, but he was always respectful of the Court as an institution, even when he thought it was off the tracks."

Despite his conservative temperament, Rehnquist was never unduly preoccupied with following judicial precedents. In a biting critique published in The New Republic in 1982, Charles Krauthammer, the conservative essayist, and Owen Fiss, a liberal scholar at Yale Law School, charged that Rehnquist "repudiates precedents frequently and openly, and if that is impossible (because the precedent represents a tradition that neither the Court nor society is prepared to abandon), then he distorts them." Perhaps one answer to this criticism is that Rehnquist was always focused on moving the law in a fundamentally conservative direction while trying to circumvent any potential roadblocks along the way. His clerks, past and present, report that he would simply remove the reasoning from opinions if it got in the way of the result.

"He took each case as it came," recalls Michael K. Young, a former clerk who is now president of the University of Utah. "He thought that the Constitution was not designed to shape all of our behavior but to box in elected officials at the margins … He didn't see the sky falling, the way Scalia sometimes does, and if you read his dissents, they're often pragmatic. I've never been able to figure out Bush v. Gore, but in general he just deferred to the political process."

But even Rehnquist's highly controversial vote to stop the manual recount in Florida in the 2000 presidential election may be an expression of his pragmatism, for better or worse. In a speech to a Catholic service organization soon after the election, Rehnquist defended the participation of Supreme Court justices in deciding the presidential election of 1876 and seemed to be justifying Bush v. Gore in similarly practical terms. "There is a national crisis, and only you can avert it," he said. "It may be very hard to say no."

Typical of Rehnquist's early opinions was his 1973 dissent from Roe v. Wade. Without huffing and puffing or personal invective, Rehnquist made a straightforward but powerful case for majority rule. "The fact that a majority of the States, reflecting, after all, the majority sentiment in those States, have had restrictions on abortion for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not [deeply rooted in tradition]," Rehnquist observed. It's striking to compare his even-tempered dissent with Scalia's wrathful and apocalyptic one nearly twenty years later. In Planned Parenthood v. Casey, the case that reaffirmed Roe v. Wade, Scalia equated abortion with slavery—both of them issues "involving life and death, freedom and subjugation"—and predicted that the Court would detonate a culture war in the same way that its Dred Scott decision, in 1857, precipitated the Civil War.

Rehnquist's moderate religious views (he is a Lutheran, although not a conspicuously observant one) may have contributed to his relative equanimity about abortion and prayer. "If I were a betting man, I would say personally Rehnquist thinks prayer in schools is pretty silly," Michael Young says. "You won't find him as hysterical about abortion and prayer as born-again Christians, who view these decisions as substantively essential to the moral fiber of the country. Rehnquist is willing to have it decided either way by the legislatures. Scalia couches it in a concern about democratic decisions, but that's not why Scalia cares."

Rehnquist reads broadly and avidly but, unlike Scalia, never comes off as a know-it-all and has never tried to lord his intelligence over his colleagues. While Scalia rails against popular culture, Rehnquist loves to rent movies—both new and old—and also goes to movie theaters by himself to see them. (His wife, Natalie, died in 1991 after a long struggle with ovarian cancer.) It is impossible to imagine him denouncing the Court for taking sides in the culture wars, as Scalia routinely does. "The Court must be living in another world," Scalia wrote in 1996. "Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."

Temperament and religious sensibility may go a long way toward explaining differences of approach—between Rehnquist, on the one hand, and Scalia and Thomas, on the other. (It's worth noting that over the past ten years Rehnquist has voted more frequently with Kennedy and O'Connor than with Scalia and Thomas.) But another part of the explanation has to do with the reaction to Roe within the legal community itself. Because of Roe, a conservative judicial movement arose in the 1980s that was determined to curtail judicial discretion at all costs. Roe galvanized the religious right and unleashed far more conservative outrage against the Court than Earl Warren ever did. After he became president, Ronald Reagan, declaring that he wanted to avoid what he saw as Nixon's mistakes in picking moderate justices like Harry Blackmun, Warren Burger, and Lewis Powell, directed his Justice Department to find more-reliable ways of identifying doctrinaire strict constructionists. A turning point for this conservative judicial movement came in 1985, when Reagan's attorney general, Edwin Meese, delivered a speech to the American Bar Association denouncing the Burger Court for its "jurisprudence of idiosyncrasy." Meese asserted, "It has been and will continue to be the policy of this administration to press for a jurisprudence of Original Intention," which he defined as an "endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment."

Although Rehnquist's opinions referred intermittently to this doctrine of "originalism" (most notably in cases involving the separation of church and state), he invoked constitutional history when it was convenient and otherwise ignored it. From the moment that Scalia and Thomas joined the Court, in 1986 and 1991, respectively, they took a very different approach. Embracing the new orthodoxy with almost catechistic devotion, they insisted on the importance of construing each constitutional provision according to the presumed intentions of the Framers, no matter how disruptive or radical the consequences might be. For example, in 2003 Rehnquist wrote a majority opinion holding that Congress could allow state-government employees to sue their states for violating the Family and Medical Leave Act; Scalia and Thomas argued that this violated states' rights. "Scalia and Thomas embrace top-down theories of originalism and textualism as a principled way to control judicial discretion," Jack Goldsmith, of Harvard Law School, says. "Rehnquist is in a different, older, more pragmatic conservative tradition. He is less theoretical, often looks beyond text and history in discovering the relevant legal intentions, is more deferential to the political branches, and doesn't attempt to impose a general methodology across the board."

The gulf between Rehnquist and the Scalia-Thomas axis only widened this term and last. In U.S. v. Booker, decided in January, and Blakeley v. Washington, decided last spring, Scalia and Thomas joined three liberals on the Court in voting to strike down federal and state sentencing guidelines and in attempting to impose a sweeping new requirement that would have compelled juries to vote on each fact used to increase a sentence. Rehnquist, in contrast, sided with the more pragmatically minded justices—Breyer, O'Connor, and Kennedy—in upholding the sentencing guidelines, and avoided chaos by making the federal guidelines advisory rather than mandatory. Along the same lines, in an important terrorism case Rehnquist joined O'Connor in voting to allow the president to detain enemy combatants, but with a modest degree of judicial oversight. Meanwhile, Scalia and Thomas, in dissent, took rigid (and, as it happened, diametrically opposed) positions: Scalia argued that the president had no power to detain without congressional authorization, whereas Thomas contended that the president could do whatever he liked, without judicial or congressional oversight. Rehnquist will always take half a loaf over no loaf at all, and as chief justice he has proved far more willing than most of his colleagues to support, for the good of the Court, opinions with which he disagrees.

Rehnquist's successes as chief justice provide an object lesson for future holders of the office: having a judicious temperament is far more important than having a consistent judicial methodology. Rehnquist has always understood the political demands of whatever role he is asked to play, and was careful not to transgress its boundaries. His performance in presiding over the impeachment trial of President Clinton was masterly because he refused to pontificate, confining his interventions to rulings on procedural motions, which he handed down with confidence and skill. Had he played his part in a more intrusive or polarizing way, the trial might have turned into a political circus. (As a gesture of thanks, the majority and minority leaders of the Senate gave him a ceremonial cup.) By refusing as chief justice to give interviews except about his books on Supreme Court history, and by devoutly guarding his privacy, he has helped maintain and enhance the Court's carefully cultivated aura of mystery and authority.

The younger generation of justices, both conservative and liberal, have a dramatically different attitude toward questions of personal exposure. Clarence Thomas, for example, is far more accessible and emotionally revealing; he frequently gives speeches to groups of African-American students, in which he talks, in raw and intimate detail, about his childhood, his sense of inadequacy, and his abiding anger toward the civil-rights establishment. It is impossible to imagine the intensely private Rehnquist selling a memoir for $1.5 million, as Thomas recently did. But we are living in an age of celebrity that is ravenous for personal disclosure, and pressures on the justices to accede to these demands will only grow more insistent. It may not be long before we see them turning up on the morning talk shows, as O'Connor has done, to promote themselves and discuss their feelings.

"I've always admired Robert E. Lee for his refusal to write his memoirs," Rehnquist told Brian Lamb. "If memoirs are going to be interesting, if they're not going to be saccharine, you have to say some people didn't measure up and others did … I think of a memoir as saying, 'When I came on the Court there were eight other justices and three or four were quite smart, but a couple of the others were creepy.' I don't want to get into that."

If the next chief justice turns out to be, as many Court watchers fear, less of a pragmatist and more of a rigid ideologue than Rehnquist, he or she may well end up dividing the Court that Rehnquist unified, and squandering its carefully constructed reserves of public trust. In that case Rehnquist's faith in majority rule, and his ability to resist the public's insistence that officeholders bare themselves in the spotlight, may seem like the scruples of a forgotten era. He may be the last of the old-fashioned judicial conservatives, who already look far more judicious than the conservatives who have arisen in their wake. And liberals may find themselves missing Rehnquist more than they could ever have imagined.

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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Jeffrey Rosen is a professor of law at George Washington University.

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