The passing of William Hubbs Rehnquist is an occasion for sadness and condolences. But as the legacy of the 16th chief justice begins to be written, it is also an occasion for resisting the tendency toward hagiography that the death of a national leader often inspires.
Rehnquist's long and important tenure on the Supreme Court had several positive aspects. As an associate justice, Rehnquist wrote many intelligent and creative opinions as he fashioned his conservative counterpoint to the liberal legacy of the Warren era and the views of its main architect, Justice William Brennan. In a series of dissents, Rehnquist mapped out the "states' rights" agenda that was to become the hallmark of the court over which he eventually presided. During this period, Rehnquist also wrote a dispassionate and persuasive dissent exposing the jurisprudential weaknesses of Roe v. Wade.
Once elevated to chief justice, Rehnquist proved a welcome contrast to his predecessor, Warren Burger, who was viewed by his colleagues as manipulative and pompous. Even Rehnquist's ideological foes agreed that he ran the court's internal affairs effectively, and all of his colleagues enjoyed his down-to-earth personality. Rehnquist also served masterfully as the administrative head of the entire federal judicial system. In that role, he was an effective, nonpartisan advocate for greater resources to improve our overworked and underfunded federal courts.
At the same time, however, Rehnquist leaves a regrettable legacy in many respects.
In the most important legal issue of the modern era, racial equality, Rehnquist was consistently on the wrong side. As a law clerk to Justice Robert Jackson while the court considered Brown v. Board of Education, Rehnquist counseled against overturning the "separate but equal" doctrine of Plessy v. Ferguson and fumed about his colleagues' "pathological search for discrimination."
Rehnquist's views as a justice were of a piece. Over 33 years, he compiled a virtually unbroken record of trying to narrow the scope of laws protecting the civil and voting rights of minorities, including watering down the enforcement of Brown -- the landmark decision he opposed at its inception.
In other key areas, Rehnquist's jurisprudence was deeply flawed. In a flagship achievement, Rehnquist led the court to curtail citizens' ability to sue states and their officers for violations of federal or state laws. But Rehnquist's approach suffers from the same fundamental problem he once identified in Roe v. Wade: whatever the doctrine's merits, it has little if any grounding in the Constitution, its purported source. Rehnquist also spearheaded the court's drive to remove judicial checks on the death penalty even as DNA evidence provided irrefutable proof that the whole system of capital punishment was rife with error.
Ideology aside, Rehnquist's tenure as chief justice has also had a baleful effect on the court's decisional culture. In presiding over the justices' deliberations, Rehnquist discouraged internal debate because he simply did not believe that discussion changed anyone's mind. Moreover, in contrast to his earlier work as an associate justice, he adopted a flat and often unreasoned opinion style that answered large constitutional questions with a minimum of analysis or effort at persuasion.
This approach was bad for the institution and for the country. We yield enormous power to the unelected Supreme Court because we believe the justices' decision-making process is more considered and deeply reasoned than the processes at work in the elected branches.
As chief justice, Rehnquist undermined this essential rationale for the court's authority. Inside a very narrowly divided court, Rehnquist's approach too frequently reduced the justices' decision making to the shallow calculus of five votes beats four with the winning side announcing the result backed by a peremptory "it-is-so-because-we-say-so" opinion.
This was true even in the most important cases, as the debacle of Bush v. Gore attests. There, the Rehnquist Court exercised a previously unknown and almost unimaginable authority to inject itself into a presidential election, short-circuit the processes contained in the Constitution and declare a winner. And it did so in an opinion that even supporters of the result shy away from defending because it is so devoid of coherent legal principle.
Rehnquist's successor will bear the burden of this legacy. He or she will face the challenge of a court profoundly torn over issues of privacy, affirmative action, church and state, federal power, states' rights, and trade-offs between national security and civil liberties. But no less important, the next chief justice will face the challenge of restoring a depth and integrity to the court's decisions commensurate to the power it wields in this troubled democracy.
Edward Lazarus is a lawyer and author of "Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court."