“I’m going to change the government,” vowed William H. Rehnquist. He made this promise not to President Richard Nixon, who appointed him to the Supreme Court in 1971, nor to President Ronald Reagan, who elevated him to the chief justiceship in 1986, but to his elementary school class in Shorewood, Wis., back in the 1930s. Rehnquist’s ambitions were already set — as were his ideology and sense of certitude. Young Bill harbored a deep hostility to governmental power and was determined to do something about it.
Which he did, manifestly, during his 33 years on the Supreme Court. It is possible to draw a continuous line between the unyielding boy — a Roosevelt-hater in knee pants — and the unyielding justice, a man whom Nixon, approvingly, called a “reactionary bastard.” In “The Partisan,” John A. Jenkins, a legal journalist and the publisher emeritus of CQ Press, traces that life’s journey and concludes that Rehnquist never traveled far from where he began — that he was “flash frozen” early on.
The education of William Rehnquist, as rendered by Jenkins, was less a search for truth than a search for reinforcement. While serving in North Africa during World War II, Rehnquist read Friedrich Hayek’s “The Road to Serfdom,” which strengthened his instinctive libertarianism. His time at Stanford Law School intensified his conviction that the 14th and 15th amendments should be interpreted narrowly. Indeed, during his clerkship for Justice Robert H. Jackson from 1952 to 1953, Rehnquist wrote a memo complaining that the court, in Brown v. Board of Education, was “being asked to read its own sociological views into the Constitution.”
As for his own views, he rejected the idea that segregation was “one of those extreme cases which commands intervention from one of any conviction.”
After his clerkship, Rehnquist joined a law firm in Arizona and fell in with the crowd around Sen. Barry Goldwater — “his philosophical soul mate,” a friend recalled. Rehnquist took charge of “ballot security” for the state’s GOP, a role he discharged by challenging the literacy of black and Latino voters (until the Voting Rights Act of 1965 outlawed such tests).
In 1969 he joined the Justice Department, emerging as a caustic public critic, in the Spiro Agnew vein, of what he called “the new barbarians” — antiwar protesters and other bugaboos. Before gatherings of Elks and Kiwanis, Rehnquist cut a strange and shambling figure — a mutton-chopped crusader in pink pinstripes and wide, garish ties, inveighing against Miranda v. Arizona and the rights of the accused. “Law and order,” he told one audience, “will be pursued at whatever cost in individual liberties and rights.”
Performances like this, along with other acts of service, earned Rehnquist a Supreme Court nomination. As Jenkins describes, Rehnquist was neither an obvious nor a comfortable fit. He did not have what one might call a judicial temperament. He did not weigh, did not reflect, did not deliberate. Instead, as Nixon had hoped, he staked out a position on the far right of the court — at that time, an isolated post — and pursued his agenda. When his clerks nicknamed him “the Lone Dissenter,” Rehnquist wore the label like an honorific. Jurisprudentially, he gave every appearance of a man who did not give a damn.
At the same time, he built strong, even warm, friendships with many of his colleagues, including the liberal ones. He managed this by refusing to take offense at criticism, by running the court efficiently and equitably, and by insisting, with some frequency, on having fun — no small matter when you are stuck, for decades, in close quarters with a tiny group of men and women who disagree on the weightiest matters of law. Jenkins calls the collegial Rehnquist a “mask of jollity” that disguised “the brooding private man,” and perhaps so. But the affection among the justices was, by all accounts, real.
In any event, “The Partisan” is overly concerned with such questions. It focuses too much on trivialities — Rehnquist’s management of office betting pools, his failed literary ambitions — and too little on the law. “Anyone looking for a comprehensive survey of Rehnquist’s jurisprudence . . . will not find it here,” Jenkins concedes up front. Surely, though, he could have found a middle ground between comprehensive and cursory.
The book makes a series of categorical claims: Rehnquist “felt no obligation” to precedent; he “did not — indeed, could not — evolve”; he “left no body of law or opinions that define his tenure as chief justice or even seem likely to endure.” But it doesn’t offer much evidence to sustain them; Jenkins is asking us, in effect, to take his word for it.
Let us stipulate, as the lawyers say, that Rehnquist was ideologically driven and inflexible, and that his opinions were often clipped and peremptory. But he was certainly a more complex, even confounding, figure than he appears in this book. Indeed, in 2000, faced with a chance to overturn his much-loathed Miranda, Rehnquist upheld it, writing that Miranda warnings “have become part of our national culture.” And in 2003, putting aside his long-held abhorrence of federal power, he endorsed the right of Congress to force state governments to provide their employees the benefits of the Family and Medical Leave Act. Evolution — or just inconsistency? Either way, it undercuts Jenkins’s thesis.
In the end, “The Partisan” does little to help us assess Rehnquist’s legacy, which, seven years after his death, does not lend itself to pat appraisals and still seems up for grabs. On the one hand, Rehnquist did not complete the project of his lifetime: upending the established constitutional order in such areas as federalism, criminal law, unenumerated rights (especially abortion) and the separation of church and state. On all these issues, as Jenkins points out, Rehnquist failed to build a reliable majority; he was often outmaneuvered by the liberal Justice William Brennan and outshone by the ostentatious brilliance of Justice Antonin Scalia. In the main, the Rehnquist court succeeded in narrowing liberal precedents, not in reversing them.
On the other hand, no less an authority than Brennan himself called Rehnquist “the most all-around successful” chief justice he worked with — a group that included Earl Warren. And Justice John Paul Stevens, in his recent memoir, argues that “one cannot underestimate the importance” of Rehnquist’s opinions limiting “the duty of the states to comply with federal law.”
These competing takes on Rehnquist’s tenure suggest that it is too early either to dismiss or to enshrine the chief justice. Still, what can be said with certainty is that by 2005, the Supreme Court — and in important respects, the law — was in a very different place than in 1971, and Rehnquist was not incidental to that; he was not a bystander as the court marched to the right. He brought issues to the fore, brought marginalized perspectives to the mainstream and chipped away at basic understandings that had defined constitutional law for a generation at least.
Over time, his legacy will probably be judged not merely on the basis of what the Rehnquist court did but also on what it enabled future courts to do — principally, the court that now rests in the hands of Rehnquist’s successor, his former clerk, Chief Justice John Roberts.
The Life of William Rehnquist
By John A. Jenkins
330 pp. $28.99