Rehnquist's Legacy, Part II

By

Published September 04, 2005

| FoxNews.com

Upon being handed the top position on the Supreme Court in 1986, William H. Rehnquist (search) reacted to the civil-rights activism of former Chief Justice Earl Warren's (search) court by reviving states' rights and applying a more narrow interpretation of the Constitution.

Rehnquist's reputation as a fair-minded jurist earned him widespread, bipartisan admiration throughout his tenure. However, he frustrated many on the right who had hoped he would side with more socially conservative positions.

The 80-year-old chief justice of the United States, born in Wisconsin, active in the Republican Party during his years as an attorney in Arizona and highly regarded as a former assistant attorney general for President Nixon, died on Saturday, Sept. 3, still in office.

Click here to read Part I of Jane Roh's two-part series on the impact of Justice Rehnquist on the U.S. Supreme Court.

While Rehnquist's philosophy was often lumped with Justices Clarence Thomas (search) and Antonin Scalia (search), two justices who seek to apply the original intent of the Founding Fathers, the chief justice was willing to re-interpret the Constitution in changing times.

One example was his famous reversal on the reading of Miranda rights to arrested suspects, which he agreed to uphold in 2000 after decades of criticizing the 1966 decision.

Many court-watchers observed that his more surprising opinions, such as 2003's Hibbs v. Nevada Department of Human Resources — which allowed state government workers to sue their employers under the federal Family and Medical Leave Act — may have had tactical motivations.

In that case, as in other instances in which he disagreed on principle but was outnumbered, Rehnquist switched his vote in order to write the opinion himself and prevent precedent for future outcomes he'd find even more unacceptable.

Rehnquist's willingness to accept majority opinion and to compromise set him apart from Scalia and Thomas, both hardliners when it comes to constitutional interpretation.

"The best way to put it is [that] Rehnquist is a politically savvy person who is attuned to politics. Not the day-to-day, how's-it-going-to-play-in-the-press-tomorrow politics, but to larger trends in society," said Mark Tushnet, author of "A Court Divided: The Rehnquist Court and the Future of Constitutional Law."

That is not to say Rehnquist was in any way pompous or self-important, unlike descriptions of his immediate predecessor, Warren Earl Burger (search), who was less well-liked among his associate justices.

"He's absolutely not, or never was in my experience, a person who stood on ceremony," said Joseph Hoffman, who clerked for Rehnquist from 1985 to 1986 and teaches at the Indiana University School of Law at Bloomington.

"I think if you encountered Chief Justice Burger, you might not recognize exactly who he was or what his position was, but you would know he was someone important," Hoffman said. "Chief Justice Rehnquist just doesn't come across that way. He comes across as warm, a person you would never guess would be the chief justice of the United States."

According to accounts of the very private Rehnquist, he was a diplomatic, efficient manager who strictly enforced time limits on oral arguments and deadlines for justices' opinions. Until his battle with thyroid cancer (search), he was a competitive tennis player who preferred to take long walks with law clerks to discuss cases rather than read written reports.

Rehnquist also had a mischievous and self-deprecating streak. While the norm among justices is four law clerks, he always had three.

"We secretly thought maybe the reason was that it made his doubles tennis foursome," Hoffman said.

While Rehnquist hated to lose at tennis, he was regarded as one of the most amiable members of the court. On display in his chambers is a Lone Ranger doll, given to him by some former clerks in a nod to his early years on the court when he often found himself in the minority, as he did in the landmark Roe v. Wade (search) decision that legalized abortion.

Leading the way, Rehnquist eventually formed a five-justice bloc of conservatives that included Anthony Kennedy (search), Sandra Day O'Connor (search), Scalia and Thomas. The group peeled back federal authority over the states and restricted habeas corpus, or the ability to object to a court's decision, especially for death-row inmates.

For instance, in the 1960s, Justice William J. Brennan (search) led the charge in granting more rights to prisoners, in part to right what he felt was a lopsided criminal justice system that discriminated against blacks.

When Rehnquist, who was more of a legal purist, joined the court, he succeeded in tightening restrictions on the appeals process and eliminating considerations of race in criminal justice cases.

"He basically dismantled everything Justice Brennan had done," Hoffman said.

That decision-making left some critics charging that Rehnquist, long a foe of affirmative action, was racially insensitive, if not racist. In the early 1950s, as a clerk to Supreme Court Justice Robert H. Jackson, Rehnquist authored a memo warning the court against overturning segregation in public schools. During his confirmation hearings in 1971, he denied the views in that memo were his own.

While no hard evidence showed that he espoused racist views, Rehnquist was repeatedly criticized for never having hired a black law clerk in his more than 30 years on the court.

"His decisions, his attitude and his speeches are of someone who comes from a fairly conservative place where those kinds of issues were never really addressed," said Martin Belsky, professor at the University of Tulsa College of Law and author of "The Rehnquist Court: A Retrospective."

"He doesn't have a history of trying to overcome all that stuff. I'm not saying it's racism," Belsky added. "I don't think he's a conscious hater, but I think on issues involving 'the other,' whether it's disabilities, gender, age or race, he's not that sensitive."

In other issues, Rehnquist steered the court back to federalism, the division of power between the federal government and states at a time when it had steeply receded.

"When he came to the court in 1972, the powers of the states were really in terminal decline. We were a society governed by the federal government and the states basically could do only what the federal government allowed them to do," Hoffman said.

"Rehnquist came on the court and began a long process of trying to reverse that, and to stand up for the idea that the people who wrote the Constitution had — that we would be a better society if there were a balance between state and federal authority. And this more than anything will be the legacy of Rehnquist as an individual member of the court," he added.

But as recent decisions regarding medical marijuana and interstate wine commerce show, Rehnquist's court still saw the merits of national power.

"I'd say he's made claims for states' rights more plausible than before he arrived, but if you were a real enthusiast for states' rights, you wouldn't think the court has moved very far," Tushnet said.

Indeed, the great bugaboos of die-hard federalists — Lyndon B. Johnson's Great Society (search), and its predecessor, Franklin D. Roosevelt's New Deal (search) — remained virtually intact throughout Rehnquist's tenure.

"The Rehnquist court has revived the doctrine of federalism, albeit only at the edges and in very easy cases. It hasn't gone after Social Security or Medicare or Medicaid and tried to argue they are unconstitutional, although they are," said Roger Pilon, an adjunct professor of government at Georgetown University and director of the Cato Institute's Center for Constitutional Studies.

Rehnquist may have disappointed conservatives by not being more driven by social issues or politics, but he left the court widely respected by the American judiciary, on whose behalf he so often lobbied.

"Ever since he became chief justice, he has been a very effective spokesperson for the federal judiciary," Hoffman said. "If the Bush administration decides it wants to go on the attack against the federal judiciary, you can bet Rehnquist will fight back."

Rehnquist would likely have been a very private person had he retired, but his quiet support could have gone to a like-minded nominee who, in Hoffman's words, "decides cases on the basis of jurisprudence and legal principles rather than politics."

But as his 2004 Year-End Report on the Federal Judiciary hints, Rehnquist would probably have found the heated political battle over his replacement disheartening.

"Although arguments over the federal judiciary have always been with us, criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years," Rehnquist wrote, warning that punishing judges for their judicial acts "would destroy judicial independence ... judges would be concerned about inflaming any group that might be able to muster the votes in Congress to impeach and convict them."

URL

http://www.foxnews.com/story/2005/09/04/rehnquist-legacy-part-ii