A Look at a Rehnquist Legacy

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By Charles Lane
Monday, June 6, 2005

Will the chief justice of the United States, William H. Rehnquist, retire when the Supreme Court's term concludes at the end of this month? Rehnquist's advanced age, 80, and recent treatments for thyroid cancer make it seem more than likely that he will. Yet, if anything, the chief justice seems to have rallied in recent months, returning to the bench to conduct oral arguments, writing opinions and even reading some from the bench, albeit with difficulty.

Whether Rehnquist leaves the court now or later, he is probably in the twilight of a remarkable and lengthy career. The assessment of his impact on the law during 33 years on the court (more than 18 of them as chief justice) has begun.

And though it is perhaps not the most cheerful of subjects, one clear legacy of the Rehnquist court is its contribution to accelerating the pace of executions in the United States.

The Rehnquist court, in tandem with Congress, took some key steps during the 1980s and 1990s to reduce time-consuming death row appeals. These appeals had generally taken the form of petitions in federal court for writs of habeas corpus, based on alleged constitutional defects in a particular defendant's trial.

Partly as a result, the number of executions in the United States reached a modern annual peak of 98 in 1999 -- before declining to last year's total of 59.

Reducing death row litigation was "something he cared about as much as anything else," George Kendall, a longtime capital defense lawyer based in New York, said of Rehnquist. "He never thought the federal courts should have this kind of authority."

Indeed, when he was a law clerk for Justice Robert H. Jackson in the early 1950s, Rehnquist wrote disparaging memos about what he saw as the overuse of federal habeas corpus. Referring to the last-ditch appeals of the convicted Soviet atomic spies, Julius and Ethel Rosenberg, he wondered why "the highest court of the nation must behave like a bunch of old women every time they encounter the death penalty."

But the Warren court of the 1950s and 1960s, concerned about the violations of defendants' rights in the southern states' courts, opened the door to fairly wide use of federal habeas corpus by death row prisoners. This contributed to a de facto end of executions by 1967, even though juries continued to sentence convicted murderers to death. "Appeals, not public opinion, put a temporary end to capital punishment in the United States," University of California at Los Angeles law professor Stuart Banner observes in his book, "The Death Penalty: An American History."

The Supreme Court ended capital punishment in 1972, only to approve its reinstatement in 1976. But habeas corpus appeals continued to stall executions -- excessively so in the view of Rehnquist.

"Of the hundreds of prisoners condemned to die who languish on the various 'death rows,' few of them appear to face any imminent prospect of their sentence being executed. Indeed, in the five years since [capital punishment's reinstatement] there has been only one execution of a defendant who has persisted in his attack upon his sentence," Rehnquist, then an associate justice, wrote in a dissenting opinion. "I do not think that this Court can continue to evade some responsibility for this mockery of our criminal justice system."

In 1988, the recently confirmed Chief Justice Rehnquist formed the Ad Hoc Committee on Federal Habeas Corpus in Capital Cases, and appointed retired justice Lewis F. Powell Jr. as its chair. The committee's 1989 report noted that "society is rightfully entitled to have the penalty prescribed by law carried out without unreasonable delay."

In two subsequent decisions that Rehnquist supported, 1989's Teague v. Lane , written by Justice Sandra Day O'Connor and 1991's McCleskey v. Zant , written by Justice Anthony M. Kennedy, the court sharply restricted the rights of death row inmates to ask federal courts for habeas corpus relief.

In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. Signed by President Bill Clinton, it incorporated the principles of the Powell committee and the Rehnquist court's decisions, and further tightened the limits on multiple death row appeals. Rehnquist and his fellow conservatives on the court expedited constitutional review of the new law. It was upheld in a unanimous ruling, written by Rehnquist.

In his Jan. 1, 1998, annual report on the federal judiciary, Rehnquist noted approvingly: "As of June 1997, the number of habeas corpus applications has fallen well below the average number of monthly filings during the 15 months prior to the law's enactment in April 1996."

The debate over this aspect of Rehnquist's record has already begun, and will undoubtedly continue long after he has left the scene.

Kendall said the chief justice would be remembered for rolling back much-needed "criminal justice reforms" of the Warren court.

But Charles L. Hobson, a lawyer with the Sacramento-based Criminal Justice Legal Foundation, which backs prosecutors and police in constitutional cases, praised Rehnquist for helping put the will of pro-death penalty voters and state legislators into effect. "If you don't have executions, you don't have capital punishment," Hobson said.


© 2005 The Washington Post Company

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