The Rehnquist Legacy: 33 Years Turning Back the Court

By Charles Lane
Washington Post Staff Writer
Monday, September 5, 2005

A version of this story appeared in some late editions yesterday.

As a young lawyer in Phoenix in 1957, William Hubbs Rehnquist declared a personal war of sorts against the Supreme Court, then headed by Chief Justice Earl Warren.

Rehnquist gave a speech criticizing Warren and Justice Hugo Black as "left-wing philosophers." He published a magazine article blaming the Warren court's liberal drift on the "political cast" of the justices' law clerks.

Rehnquist's effort to roll back the modern liberal tide would take him to Arizona Republican Sen. Barry Goldwater's ill-fated 1964 presidential campaign, to the Nixon administration's Justice Department and eventually, in 1972, to the court itself.

After 33 years there, including almost 19 occupying Warren's old seat as chief justice, Rehnquist can claim a substantial legacy.

The Rehnquist Court has strengthened the legal position of the police, paved the way for swifter executions, defined constitutional limits on federal power and permitted indirect government funding of religious schools.

"When the history of the Supreme Court in the 20th century is written, there will be two great chief justices: Earl Warren and William Rehnquist," said Mark Tushnet, a professor at the Georgetown University Law Center. "Both presided over courts that changed the law in a very dramatic way."

Yet by the last years of his tenure, Rehnquist had come to appreciate the limitations on any individual's power to blaze new trails through the thick forest known as American law.

Asked by Fox News reporter James Rosen in 2001 whether his esteem for Warren had grown, Rehnquist said that it "probably did, partly out of respect for stare decisis . That is the principle that once an issue has been decided, it should stay decided. You can't constantly be re-litigating things without doing a lot more damage than just leaving them in place."

The lessons Rehnquist learned are especially relevant now, as the Senate must consider both John G. Roberts Jr., President Bush's nominee to replace the retiring Sandra Day O'Connor, and a replacement for Rehnquist.

Projecting what they know about Roberts's judicial philosophy onto current and future issues before the court, supporters and opponents will make their arguments, pro and con.

Yet there is no certain method for predicting how a nominee will perform in cases years, or decades, from now.

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