A Harvard law professor says a massive study of Justice William H. Rehnquist's work in the Supreme Court shows that his "unyielding" political philosophy gets in the way of his judicaial performance.
In some decision, Professor David L. Shapiro contends, Rehnquist strayed from the narrow constitution path he professes to follow in order to achieve results preordained by his ideology.
In other cases, Shapiro argues, "the unyielding character" of Rehnquist's ideology led him to scarific judicial craftsmanship and to overturn precedents with "singularly upersuasive" and insufficiently candid arguments.
At the same time, Shapiro finds Rehnquist to be "a man of considerable intellectual power and independence of mind." Frequently, he adds, the justice's opinions "seem to me extremely able, articulate, careful, and persuasive, whether one ultimately agrees with them or not."
To reach these conclusions, Shapiro researched all of Rehnquist's 164 signed opinions and his votes in more than 1,200 cases from March, 1972 - when Rehnquist wrote his first opinion for the court - to July, 1976.
Shapiro, a former law clerk to the late Justice John M. Harlan, reported his analysis in a 64-page article in a recent issue of the Harvard Law Review.
THe article's analyses comprise an arsenal for cilvil liberties and civil rights organizations that rank the 52-year-old Rehnquist as their most formidable adversary on the court.
The article became available as the American Civil Liberties Union and allied groups began a campaign for laws to overrule numerous decisions of what they clal "the Burger-Rehnquist court."
In keeping with Supreme Court tradition, Rehnquist declined to comment on the article.
At the University of Chicago, law Prof. Philip B. Kurland speculated that analyses of comparable thoroughness would unearth indications of ideological influence on the judicial performance of Chief Justice Warren E. Burger and Justices William J. Brennan Jr. and Thurgood Marshall.
At New York University, Professor Norman Dorsen, chairman of the American Civil Liberties Union, said the Shapiro article demonstrates that "a leader of the Burger court is ideology overactive in a cause that, in the view of civil libertarians, is a dismal one."
The article "definitely will be used in the effort to obtain legislation" to offset some major decisions and trends of the court, he said.
As critics see it, Rehnquist and Burger - two of the four justices appointed by President Nixon - have been the principal draftsmen of decisions that have reduced access to the federal courts by those who need access the most: the poor, minorities, prisoners, victims of government law breaking, and advocates of unpopular causes.
In his article Shapiro listed three propositions that, he said, have guided Rehnquist's judicial performance more than they have those of the other eight justices:
"Conflicts between an individual and the government should, whenever possible, be resolved against the individual."
"Conflicts between state and federal authority, whether on an executive, legislative or judicial level, should, whenever possible, be resolved in favor of the states."
"Questions of the exercise of federal jurisdiction (to review a case), whether on the district court, appellate court of Supreme Court level, should, whenever possible be resolved against such exercise."
To solve disputes in favor of the government whenever possible diminishes the court's critical role "as guardian of the individual against encroachments by government," Shapiro argued.
To lean heavily toward the states is to remove many federal-state conflicts from "the political arena, where the contestants are well-matched," and to deny national solutions to otherwise insoluble problems, he wrote.
And, he said, to lean heavily against federal courts is to lean against the forums designed by the Constitution and by Congress after the Civil War for the vindicaiton of federal rights and liberties and for the resolution of federal questions.
Rehnquist sometimes have violated his own theory of how judges ought to interpret the Constitution Shapiro contended.
He noted that Rehnquist, writing last year in the Texas Law Review, said that judges applying the Constitution to cases unforseen by the framers should not serve " as the voice and conscience of contemporary society, as the measure of the modern conception of human dignity."
The authority of the courts to rule laws unconstitutional must be "somehow tied to the language of the Constitution that the people adopted," the justice continued.
A judge must not codify his own principles in the Constitution by overstraining its language and intent, Rehnquist added.
Finally, he imputed to the Constitution and to legislation "a form of moral goodness because they ahve been enacted into positive law."
Shapiro cited three cases in which he said Rehnquist, abandoning his theory, reached a conclusion instead "by drawing broad, unwarranted inferences from the provisions of the Constitution, by paying little or no attention to the intent of the framers," by doing both at the same time, or by adopting "a kind of 'natural law' of states' rights 'strongly at odds' with the positive law" he espouses.
In one of the cases, called National League of Cities v. Usery, Rehnquist wrote the opinion by which the court last year nullified, by a 5-to-4 vote; a federal law extending minimum age and maximum hour provisions to employees of stat enad local governments.
In passing the law, the justice said, Congress had undertaken "an invasion of state sovereignty" too extreme to "comport with the federal system of government embodied in the Constitution."
But Rehnquist did not cite a word of the Constitution in support of this pronouncement, Shapiro said, adding, "This is understandable, since the provision in question the Tenth Amendment, is not help."
That amendment read, "The powers not delegated to the United States by the Consitution, nor prohibited to it by the states, are reserved to the states respectively, or to the people."
Although the amendment imposes no limits on the federal government in exercising powers "delegated" to it, the import of the decision Rehnquist wrote for the court "is that implicit notions of state sovereignty, nowhere expressed in the Constitution, limit the exercise of power" under the amendment, Shapiro said.
The law professor saw in the decision a departure by Rehnquist "from his theory of constitutional interpretation . . . to invalidate positive law - and not simply the law of a state but that of a coordinate and democratically elected branch of the federal government. Thus the rejection of his own theory in this case seems complete and unqualified."
Shapiro accused Rehnquist of making another "extreme departure" from his theory in his opinion for the court in a 1972 case entitled Calfornia v. LaRue.
The issue was the validity of California regulations forbidding performers to engage with customers in various sexual acts in bars licensed to sell liquor by the drink.
Rehnquist wrote "given the added presumption of the validity of state regulation in this area that the Twenty-first Amendment requires we cannot hold that the regulations on their face violate the federal Constitution."
The pertinent portion of the Twenty-first Amendment, forbids importation of liquor into dry states so that such states can prevent importation without running afoul of the Constitution's commerce clause, which prohibits states from interfering with interstate commerce.
"Justice Rehnquist points to nothing in the language of the (Twenty-first) Amendment, and indeed there is nothing, even remotely suggesting that a state may condition a liquor license on the licensee's agreement not to engage in activity otherwise protected by the First and Fourteenth amendments. . . .
"Nor does Justice Rehnquist cite one word of the legislative history of the amendment, a failure that is not surprising since that history shows the amendment's purpose to be wholly consistent with its language: to guarantee to the states that any restrictions on important of liquor will not be invalidated as a usurpation of federal power over commerce."