Con: His tenure curtailed essential freedoms

By Erwin Chemerinsky Sunday, June 22, 2003
    • Few Supreme Court Justices have had such a devastating effect on civil liberties and civil rights as William Rehnquist. While his quest to limit federal power has got the most attention, his assault on individual rights has been particularly effective in fraying constitutional protections for criminal defendants. Not only has Rehnquist been a consistent advocate for the death penalty but he also authored an astounding opinion that the Constitution is not violated when a state executes an innocent person.

    From the time he was a law clerk, Rehnquist has advocated limiting the ability of state prisoners to argue in federal court that their convictions violated the Constitution. Rehnquist's views have now become the law, and the once "Great Writ" of habeas corpus — the right of the accused to be released from unlawful detention — has been gutted and is rarely available to state prisoners. This year, in a case I argued and lost 5 to 4 in the Supreme Court, Rehnquist was in the majority in holding that habeas corpus relief was not available to a state prisoner who was given a life sentence — with no possibility of parole for 50 years — for stealing $153 of videotapes under California's three-strikes law.

    Rehnquist's judicial activism has also had the tragic effect of limiting Congress's power to deal with serious national problems. During his tenure, the Supreme Court has greatly limited the power of federal courts to order desegregation of schools. The result is the substantial resegregation of schools in the South and the reality that American schools are more racially segregated today than at any other time since the early 1970s.

    Throughout American history, there have been tremendous advances in equality and the protection of individual rights. William Rehnquist's legacy has been to halt and retard that progress. The simple and sad reality is that Americans have fewer civil liberties and civil rights because of Rehnquist's tenure on the court.

    Chemerinsky is a law professor at the University of Southern California