If Richard Nixon, who appointed William Rehnquist to the Supreme
Court, or Ronald Reagan, who elevated him to chief justice, were
alive today, they'd have to congratulate themselves on a job well
done.
David Souter and Anthony Kennedy have listed leftward --
dramatically so at times. Sandra Day O'Connor, for whom the right
had even higher hopes when she joined the court 24 years ago, was
all over the board ideologically. Earl Warren, Harry Blackmun,
William Brennan and John Paul Stevens also disappointed their
conservative benefactors. But Rehnquist, who has died at the age of
80, delivered the goods as advertised.
Bruce Shapiro went only a little overboard in the liberal magazine
The Nation, when he wrote, "William Rehnquist is in many
crucial ways the judicial godfather of the Bush administration and
today's Republican right. Even more than that of Ronald Reagan,
Rehnquist's biography is a road map to the fundamental ideological
divides of the past half-century, and it is Rehnquist who more than
any other individual, erected … the legal scaffolding around
which the Bush administration has built its domestic politics and
foreign policy."
Shapiro points to increased police powers, challenges to election
law and general hostility to federal regulation of industry. And
all of that is true. Previous courts held that evidence gained by
unconstitutional police techniques was "fruit of the poison tree"
and inadmissible at trial. Rehnquist's court has held that such
evidence can be used if police acted in good faith. He also forged
a conservative bloc to roll back habeas corpus appeals -- or
objections to court decisions -- particularly in death-penalty
cases. He refused to inject the court into appeals against
gerrymandering in Texas and elsewhere. And he has fought for
private-property concerns over those of green activists in
challenges to the Endangered Species Act and elsewhere.
He's been a conservative man as well as a conservative judge. His
management style of the court has earned him the nickname "the
court's first CEO." Under Rehnquist, the court went from
considering 150-170 cases per year to fewer than 80. He sometimes
he switched votes so he could assign himself the task of writing
the governing majority opinion and then make the language of that
opinion more moderate. He enforced strict deadlines on justice's
opinions and strict time limits on oral arguments.
He is seen now as something of a counterweight to the court's
conservative firebrands -- Antonin Scalia and Clarence Thomas. But
it was not always so. To this day, in his chambers sits a stuffed
doll of the Lone Ranger, given to him by clerks early in his tenure
for his tendency to stand alone in defense of his beliefs.
An unfailingly gracious and modest man, he did things his own way.
Supreme Court judges traditionally have four clerks. He always had
three, though some suspect this was to make a convenient doubles
game in his beloved tennis. He played competitively until he was
diagnosed with thyroid cancer and was known as a player who hated
to lose. While most justices decide cases after pouring over
briefs, he preferred to discuss cases on long walks with his
clerks.
Shapiro was right about one thing: Rehnquist came to the court
determined to re-open and reshape the debate over the relationship
between the federal government and the states. In 1971, Democrats
controlled both houses of Congress. The Supreme Court was pliant,
if not acquiescent, in promoting the notion that, as Joseph
Hoffman, who clerked for Rehnquist in the mid-'80s and now teaches
at the Indiana University School of Law, put it: "We were a society
governed by the federal government, and the states basically could
do only what the federal government allowed them to do."
He took lustily to that debate with some success. In the court's
first 75 years, it never struck down a law. And the court he joined
had never, in 40 years, offered the slightest objection to
Congress' gargantuan power grab, which began with the New Deal and
continued unabated until the Reagan revolution. But Rehnquist's
court struck down more than three dozen.
Even his courageous battle against thyroid cancer didn't shake
Rehnquist's conservative underpinnings nor impair his thinking. But
by the end of the 2005 term, attorneys arguing before the justices
took to wearing bow ties in honor of the perceived new sheriff in
town -- Justice John Paul Stevens.
The Gonzalez v. Raich medical marijuana case, which
extolled federal power over state power; the leftward turn on
property rights reflected in the Kelo v. City of New
London case; the "batch of decisions" overturning the death
penalty for juveniles and other prisoners and the dismantling of
federal sentencing guidelines all were testaments to his growing
influence, Mauro and others wrote.
But because of Rehnquist, the court is a different place than it
was 34 years ago. It is efficient, exact and responsible in a way
it wasn't previously. His contribution was tremendous. But perhaps
more importantly, it was consistent.
Paul Rosenzweig
is a senior fellow in the Heritage Foundation Center for Legal and
Judicial Studies and a former Justice Department lawyer.
Distributed nationally on the Knight-Ridder Tribune wire