Page 3 of 3   <      

The Rehnquist Legacy: 33 Years Turning Back the Court

"For the courts to come along and say in addition to that, you know, 'We just don't like what happened here. We think it's, quote, unjust, close quote,' is giving them a rather subjective mandate that I think many people . . . if they fully understood it, would find troubling," he told an interviewer on Fox News in 2001.

He also held the view that the Warren Court had gone beyond what the framers of the post-Civil War 14th Amendment had intended in guaranteeing "equal protection of the laws" by state governments. Rehnquist felt that, in fact, the amendment was meant to proscribe a narrow range of discriminatory conduct and that only the Supreme Court, not Congress, had the power to say what that conduct would be.

He was particularly offended by what he saw as the excessive use of petitions for habeas corpus by criminal defendants to challenge their state convictions and sentences in federal court. Those constitutional challenges affronted state sovereignty, Rehnquist believed, and excessively delayed executions.

As part of his general opposition to federalizing the law, Rehnquist believed that the court should reserve its time and effort for cases of national importance that absolutely require its attention. The number of cases decided by the court after briefing and oral argument declined on his watch from 152 in 1986-1987, his first term as chief justice, to 76 in the 2004-2005 term.

Gradually, public opinion moved in Rehnquist's direction. The impact of repeated elections of conservative Republicans to the White House and Senate made itself felt in a rightward shift in the court's membership.

With the confirmation of Justice Clarence Thomas in 1991, Rehnquist had the five usually conservative votes he needed to put his views of the law into effect. Habeas corpus was further reined in. Affirmative action was subjected to the same degree of constitutional scrutiny as discrimination against minorities.

The Federalist Five, as Rehnquist, O'Connor, Kennedy, Thomas, and Antonin Scalia came to be known, issued a series of rulings that struck down efforts by Congress to subject state governments to laws protecting women against domestic violence, banning guns near school property and prohibiting discrimination against disabled workers.

To critics, this was an effort to roll back the primacy of the national government that had been established by the Union victory in the Civil War. To supporters, the court was restoring an appropriate balance of power. But there was no question who the driving force behind the cases was.

"You can't identify anyone who's had more to do with the revival of federalism than Bill Rehnquist," said John C. Jeffries Jr., dean of the University of Virginia Law School. "That means not only limits on federal legislative power, but also that state legislative power ought to be respected."

The same majority voted in 2002 to permit a school tuition-voucher program in Cleveland that funneled taxpayer dollars to parochial schools. That opinion, by Rehnquist, embodied an argument that he had first expressed in a dissenting opinion in 1973.

Rehnquist's support for state autonomy was so strong that it could trump his distaste for things countercultural.

But this year, when he voted to block a federal override of California's law permitting possession of homegrown medical marijuana, he found himself in the minority, abandoned not only by Kennedy but also Scalia.

With the marijuana case, the federalism drive at the court appears to have stalled out, just as Rehnquist had earlier been thwarted on other key issues when O'Connor, Kennedy or both were not quite prepared to follow his philosophy to its more politically risky conclusions.

The two justices defected to the liberal side in a key 1992 case, with the result that Roe v. Wade was upheld and its status as a constitutional precedent strengthened. In 2003, O'Connor provided the fifth vote to uphold affirmative action in university admissions, with Rehnquist writing a biting dissent.

Generally, though, as chief justice, Rehnquist made less frequent use of the luxury of principled disagreement with his colleagues than he had as an associate. When it was clear that most justices opposed one of his long-held positions, he would sometimes join the majority and assign the opinion-writing to himself -- a prerogative of the chief justice -- in order to limit what he saw as the damage.

Thus, when the court voted 7 to 2 to uphold the Miranda decision in 2000, Rehnquist wrote the opinion, a rather grudging acknowledgment of Miranda 's status as unchangeable precedent; Scalia and Thomas dissented.

In 2003, O'Connor declined to invalidate provisions of the Family and Medical Leave Act that subjected the states to private lawsuits for alleged failures to treat their male and female workers equally in granting time off.

Rehnquist assigned the case to himself, supplying a bare-bones opinion that reiterated many of the court's past federalist principles even as it explained why they did not apply in the context of a law against gender discrimination in employment. The alternative was to dissent and leave the majority opinion to the liberal Stevens.

"He became a bit more muted and focused" as chief justice, said Dennis J. Hutchinson, a professor of law and history at the University of Chicago. "He grew into a very savvy operator."

<          3

© 2005 The Washington Post Company