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The Rehnquist Legacy: 33 Years Turning Back the Court

Stare decisis was not the only force beyond Rehnquist's control. His was only one of nine votes on the court, and without a majority of five, he simply could not prevail. In many cases, his impact was blunted by his inability to win over the court's vital center, as represented by fellow Republican appointees O'Connor and Anthony M. Kennedy.

Thus, even before his death Saturday night, there was a sense at the court that Rehnquist's most influential days were already behind him. He had fought Warren, at most, to a draw.

In recent terms, Rehnquist suffered defeats on issues he cared deeply about, such as affirmative action in university admissions, which the court sustained, and state sovereignty and individual property rights, which it curbed.

The author of a book about the tension between civil liberties and national security, he cast a vote but expressed no written opinion in the court's historic decision last year granting prisoners at Guantanamo Bay, Cuba, access to the federal courts.

Key Warren Court rulings -- among them the ban on school prayer and the Miranda case guaranteeing a suspect's "right to remain silent" -- have survived. And the post-Warren Roe v. Wade decision, the abortion rights ruling that Rehnquist tried to overturn, also seems entrenched, for now.

Yet, as Tushnet noted, the remarkable fact is that Rehnquist even came close to making his views the law.

"When he started, the law was tilted in a liberal direction," Tushnet added. "Now it's not really tilted in a conservative direction, but it's more of a level playing field."

Though Rehnquist and his fellow conservative justices often acted in the name of judicial restraint, it is perhaps more accurate to say that they showed an active court could serve conservative policy ends as well as liberal ones.

During Rehnquist's tenure, the Supreme Court has arguably expanded its role in American life, frequently striking down laws passed by Congress, subjecting the president to independent-counsel investigations and private lawsuits and, in the 2000 case of Bush v. Gore , settling a presidential election.

After joining the court, Rehnquist became known as the "Lone Ranger" because he was so often the sole dissenter on a nine-member court that still included holdovers from the Warren era.

Rehnquist opposed the court's short-lived 1972 opinion overturning state death penalty laws. He was one of only two justices to vote against Roe v. Wade in 1973. He opposed affirmative action in higher education. Alone among the justices, Rehnquist said in 1983 that Bob Jones University could not be denied tax-exempt status because of alleged racial discrimination.

Through it all, Rehnquist was motivated by a basic sympathy for law enforcement and the public order it protected, and a certain disdain for the notion that the Supreme Court existed to establish the fairness in society that some might find lacking. That was a job for the legislature, he insisted.


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