The Rehnquist Legacy: 33 Years Turning Back the Court
Chief Justice Came to Recognize Limits On His Power to Fight Liberal Drift

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.

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.

"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."

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