How Rehnquist Changed America

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The Chief who was first in his class at Stanford Law at his Court office

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Repealing the Right to Appeal
When Rehnquist first arrived in Washington in 1952 to clerk for Jackson, he was already a law-and-order hard-liner. "Ivory tower jurisprudence," he wrote in one memo to Jackson, "has weakened local law enforcement." In the late 1960s, as head of the Justice Department's Office of Legal Counsel, Rehnquist gladly defended the legality of preventive detention and "no knock" searches. One of Rehnquist's victories on the court has been to limit sharply the opportunities for state prisoners to petition federal courts to hear appeals of their convictions.

For years, death-row inmates filed appeal after appeal, allowing them to postpone execution again and again. Rehnquist was one of four dissenters in the 1972 decision striking down state capital-punishment laws because they were administered arbitrarily. Four years later, the court once again permitted executions. But Rehnquist soon became frustrated because so many defendants delayed their sentences using federal appeals. With a 1989 decision, Teague v. Lane, as well as others in which Rehnquist was in the majority, his court eroded the ability of convicts to file appeals. Finally, in 1996, Congress followed his lead, rewriting federal law to incorporate Rehnquist's thinking on the appeals question. "The new standard makes it almost impossible for someone who has been convicted in state court to get to a federal court," says Richard Fallon, a professor at Harvard Law School.

But once again Rehnquist was unable to get everything he wanted. In 2002, for instance, the court ruled that states could not execute the mentally retarded. In that case Rehnquist even returned to Lone Ranger status: he was the sole dissenter.

Giving God a Hand
Rehnquist once wrote that the separation of church and state was "a misleading metaphor based on bad history." To his way of thinking, the framers of the Constitution intended merely to forbid the establishment of an official state religion, as exists in England. He has had a mixed record in getting a majority of the court to sign on to this view. The court has disallowed student-led prayer and graduation prayers by a clergyman both of which he supported. But he played a pivotal role in allowing tax money and other public resources to be used for purposes that promote religion. In 1995 he was in the majority that ruled 5 to 4 that a school could not deny student-activity funds to a Christian student newspaper when it provided such funds to other student publications. In last year's important school-vouchers decision, Zelman v. Simmons-Harris a 5-4 ruling written by Rehnquist the court allowed needy families to use vouchers for religious as well as secular schools.

Federalism Unbound
After the hot-button issues of race, crime and religion, the question of federal-state power sharing may not stir the blood. But it goes to the heart of the fundamental political struggles of the past century. The civil rights legislation of the 1960s, for instance, often used the power that Congress was granted by the Constitution "to regulate commerce ... among the several states" as the means to legitimize federal mandates on racial integration. To Rehnquist, this is a perversion of the Constitution, and he has been on a three-decade-long quest to rein in federal power. As early as 1975 he was arguing in another lone dissent that states could resist a mandate from Congress by asserting that the framers believed in much greater state sovereignty. And here he has made the most headway, getting a majority of Justices to agree with him that a variety of federal laws overstepped the limits of congressional power.

Under his leadership, the court has struck down 28 laws in six years a considerable number, notes Georgetown law professor Neal Katyal, when you consider that in the nation's first 200 years the court struck down only 127. Among these overturned laws was one making it illegal to have a gun within 1,000 ft. of a school zone and others allowing states to be sued for discrimination on the basis of age, disability and other criteria. To Rehnquist's critics, the large number of overturned laws made it appear that he was practicing the same judicial activism for which conservatives attacked the Warren court. "This is not so much the court setting itself as the protector of the states," says David Garrow, a law professor at Emory University. "It's the court setting itself up as the regulator of Congress's legislative power." To which Rehnquist would say, "Exactly." That is precisely the job of the court if you think the power of the Federal Government has been growing beyond the boundaries set by the Constitution.