A Limited Legacy

By Cliff Sloan
Monday, September 5, 2005

Many commentators are rushing to proclaim William Rehnquist one of the "great" chief justices because of his impact on the Supreme Court. Not so fast. With all due respect to his memory, it is clear that on many important issues, Rehnquist lost the court that bore his name. And during some of the most heated battles, rather than an influential chief rallying the court, Rehnquist was the court's missing man, seeming to watch from the sidelines.

Since Rehnquist became chief in 1986, the court's record often has moved exactly opposite of the direction that Rehnquist wanted to go. On issue after issue, Rehnquist lost key fights. The court rejected his call to overrule Roe v. Wade (from which he had dissented in 1973). It refused to outlaw public support for affirmative action. And on it went -- with Rehnquist dissenting, the court rejected Ten Commandments displays in Kentucky courthouses, upheld campaign finance restrictions, struck down a criminal ban on gay sex, allowed local governments to take private property for economic development, and embraced many other positions he opposed.

Rehnquist's court took some steps in directions that he favored, but the limits of those opinions highlight the limits of his legacy. It upheld some abortion restrictions, but Roe v. Wade remains firmly ensconced. A Rehnquist opinion rejected a college affirmative action program, but his court's approval of a law school program prevented a wholesale repudiation of affirmative action. Rehnquist permitted school voucher programs with parochial schools, but the court's much-attacked precedents on separation of church and state are stronger than ever after the Ten Commandments decision. The Rehnquist Court restricted habeas corpus, but the Warren Court's major criminal law precedents remain solidly in place.

Although Rehnquist saw his court make some movements in his direction, they were incremental steps around the edges. The ramparts that Rehnquist assaulted did not fall. His limited successes were far from the legacy of greatness that Rehnquist champions claim.

To give him his due, Rehnquist had a major impact in two important areas -- restrictions on Congress's power and the immunity of state governments from federal law. For the first time since the early New Deal, the Supreme Court rejected laws as beyond Congress's power under the commerce clause, which gives Congress authority to regulate interstate commerce. For 5 to 4 majorities, Rehnquist ruled that Congress had not proved an adequate interstate basis for laws about guns near schools and violence against women. And, in a series of 5 to 4 opinions, Rehnquist's court shielded state governments from imposition of federal law. Even in these areas, though, Rehnquist lost momentum. Over his dissents, the court upheld federal power to ban California's medical marijuana law and to subject states to federal lawsuits about disability access in local courthouses.

As striking as Rehnquist's failures in other areas was his occasional invisibility. The most prominent example is the historic decision giving detainees in Guantanamo Bay access to federal courts. If ever there was a decision tailor-made for an important chief justice role, this was it, with the fundamental charting of the president's war powers and the courts' role. But Rehnquist not only was on the losing side -- he was also a mute losing vote, silently joining Justice Antonin Scalia's dissent. Even when he was on the winning side, Rehnquist frequently failed to achieve the hallmark of a great chief: an opinion that speaks with clarity and finality on deeply disputed issues. In its best-known opinion, Bush v. Gore , the Rehnquist Court issued a brief unsigned opinion for five justices and a separate, additional opinion by Rehnquist for three of those five justices -- hardly the kind of clear and ringing statement that one would expect in so momentous a case.

Of course, the chief justice has only one vote, and it will be pointed out that it was the votes of other justices that led to the contrary results. But such a defense proves the case of Rehnquist's middling legacy. It cannot be claimed, in the same breath, that he was a giant in his impact on the court and that he cannot be held responsible for his lack of results.

In the end, Rehnquist will be remembered as a chief whose court took steps in directions he favored but fell far short of where he wanted to take it. The interesting question will be whether the new Supreme Court, with a new chief and a new associate justice, will produce the sweeping changes that Rehnquist sought but failed to achieve.

The writer is publisher of Slate Magazine and general counsel of Washingtonpost.Newsweek Interactive. He served as a law clerk to Justice John Paul Stevens.


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