William Rehnquist: 1924-2005

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THE JUSTICE: Rehnquist testifying on Capitol Hill in 1989

In October 1971, Richard Nixon was meeting with his Attorney General, John Mitchell, and his domestic-policy adviser, John Ehrlichman, to discuss possible nominees to the Supreme Court. For political reasons, the President was considering appointing a woman, although he displayed grave doubts about women in power. "I don't even think women should be educated!" he sputtered, according to a transcript reprinted in Nixon aide John Dean's book The Rehnquist Choice: The Untold Story of the Nixon Appointment That Redefined the Supreme Court. Nonetheless, Nixon's re-election fight loomed, and he believed that appointing a woman could win him an extra 1% or 2% of the vote. So when the discussion turned to a little-known Justice Department lawyer named William Rehnquist—a man Nixon had just met three months earlier ("Is he Jewish?" the President had asked shortly after meeting him, according to Dean's recollection; "he looks it")—Nixon had some reservations. "Maybe he can get a sex change," the President joked. But Ehrlichman's reasoning would eventually prevail: "If you want to salt away a guy that would be on the Court for 30 years [and] is a rock-solid conservative, he's it."

William Hubbs Rehnquist served on the court even longer than Ehrlichman had hoped. When the 80-year-old died Saturday night after battling thyroid cancer, he had been Chief Justice for nearly 19 years and Associate Justice for 14 years before that. Nixon did indeed "salt away" one of the longest serving Chief Justices in history, but was he a "rock-solid conservative"?

Rehnquist did inhabit some traditional purlieus of American conservatism—he believed, for instance, that those pursuing civil rights, abortion rights and gay rights were trampling constitutional principles of limited government to enforce their will. Rehnquist also believed, with evangelical passion, that the postwar federal government had assumed judicial and regulatory powers that the Constitution assigns to the states. Proponents of states' rights, who had felt so marginalized at the court in the 1960s and '70s, exulted at Rehnquist's devolution of power. One measure of Rehnquist's influence is that he helped refine the contemporary notion of a conservative as someone for whom deference to the states means antipathy toward federal social programs.

But ironically, his embrace of state pre-eminence over federal authority meant he was sometimes hard to locate on the conservative-liberal spectrum. As political scientists Jeffrey Segal of Stony Brook University in New York and Harold Spaeth of Michigan State demonstrate in their book The Supreme Court and the Attitudinal Model, Rehnquist supported states' economic regulations 89% of the time when the regulations were pro-business and 88% of the time when they were anti-business. "No other Justice comes close to this sort of across-the-board deference" to the states, Segal said in an e-mail. "Most justices are ideological: they vote to strike either liberal laws or conservative laws, but not both." But when Segal and Spaeth looked at cases decided between 1986 and 1998, they found that "only Rehnquist and [the late Justice Byron] White voted to uphold a majority of liberal and a majority of conservative laws."

Returning power to the states meant sticking it to Congress, which Rehnquist was able to do after another antifederal conservative, Clarence Thomas, joined the court in 1991. In a seminal 1995 decision, the Chief Justice wrote for the majority that Congress had no right to outlaw firearm possession near schools, since law enforcement and education were state matters. Five years later, the court also struck down part of the Violence Against Women Act; Rehnquist wrote in the decision that "we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." Partly because of Rehnquist's reorientation of the federalist balance, "he is one of the most important figures in the entire history of American law," says Cass Sunstein, a law professor at the University of Chicago.

But his years as Chief Justice also brimmed with frustrations for Rehnquist. In the 2003-04 term, Rehnquist was on the losing side so many times—on campaign-finance restrictions, which the court upheld; on terrorism detainees, who were granted the right to challenge their designation as "enemy combatants"; and even on one of his beloved federalism cases, in which the court said states can be sued under federal law for not making courthouses accessible to the disabled—that a front-page headline in the New York Times called 2004 the year Rehnquist may have lost his court. In the term that just ended, Rehnquist's states'-rights revolution suffered yet another blow when the majority ruled that federal anti-drug laws trump state statutes allowing medical use of marijuana.

Another disappointment may be that outside law schools, the Rehnquist court is probably best known for its bitterly split 5-4 decision in 2000 in Bush v. Gore, which many Democrats saw as sneaky conservative prestidigitation to give George W. Bush the White House. It was one of the few decisions in which Rehnquist supported the use of federal power to restrict a state, in this case Florida, whose supreme court had ordered a manual recount of the ballots in the presidential race. The court ruled that because Florida counties had no consistent standard for such a recount, the votes statewide might not be treated equally if a recount proceeded.

Bush v. Gore struck a direct blow to the left, but for the most part, Rehnquist led a somewhat attenuated revolution for the right. He could never muster majorities to overturn older liberal precedents such as Roe v. Wade, which prohibited states from outlawing abortion, or stop newer ones such as Lawrence v. Texas, which prohibited them from outlawing sodomy. Rehnquist also found himself in the minority when the court struck down school prayers at graduations and football games. Even so, when you look back to the ambitious goals the young Rehnquist set for himself, you see how far he actually moved the court. "The agenda he laid down in his first years on the Court were a preview of what he finally achieved in the later years," says University of Virginia law professor Dick Howard. "He knew what he wanted to do early on, reawakening constitutional ideas that had been dormant for decades."

Bill Rehnquist was born in Milwaukee to Margery, a part-time translator who spoke five languages, and William Benjamin, who sold paper wholesale. Justice Rehnquist almost never cooperated with profile writers, but when the New York Times Magazine came calling in 1985, he spoke sarcastically of trying to locate the source of his ideas in his past. "It may have something to do with my childhood," he said mockingly. But it's worth noting that Rehnquist was raised in a solidly Republican home and never found reason to reject the Willkie-Hoover-Taft conservatism instilled at the dinner table.

After a stint as an Army Air Corps weather observer in North Africa during World War II, Rehnquist sought out sunny Stanford University for his education. At Stanford Law, he finished first in a class that included Sandra Day, who would later become Justice Sandra Day O'Connor. He then won a plum clerkship in the Supreme Court offices of Robert Jackson, well known at the time as the Justice who had taken leave to serve as chief U.S. prosecutor at the Nuremberg trials.

His stint with Justice Jackson became the focus of some scrutiny during Rehnquist's 1971 Senate confirmation process. After the confirmation hearings ended but before the full Senate voted, Newsweek printed excerpts from a memo Rehnquist had written for Jackson in 1952. The memo was titled "A Random Thought on the Segregation Cases," one of which was Brown v. Board of Education, the school-integration case then before the court. The memo noted that "it was not part of the judicial function to thwart public opinion except in extreme cases." And segregation, Rehnquist declared, "quite clearly is not one of those extreme cases ... I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleag[u]es, but I think Plessy v. Ferguson was right and should be re-affirmed." Plessy was the infamous 1896 ruling allowing "separate but equal" accommodations for blacks and whites. After the memo emerged, Rehnquist drafted a letter to a Senate ally in which he claimed that Jackson, by then deceased, had requested the memo "as a rough draft of a statement of his views." When contacted by a reporter, Jackson's former secretary denied that her boss ever supported Plessy; later, Jackson scholar Dennis Hutchinson of the University of Chicago told the New York Times that the Justice never asked his clerks to summarize his views. "An absurd explanation," Hutchinson said. In 2001, after his own political leanings had tacked left, former Nixon aide Dean ended his book on Rehnquist with two words: "Rehnquist lied." Although some Senators reached the same conclusion in 1971, the Senate had rejected two other Nixon Supreme Court nominees in the past two years, and it had a weak stomach for further battle. Rehnquist won his confirmation vote 68-26.

Rehnquist faced an even more difficult confirmation battle in 1986, when President Reagan nominated him to be Chief Justice. This time Democrats tried to prove that Rehnquist had lied during the 1971 confirmation process—not about the segregation memo but about whether he had intimidated minority voters as a Republican poll watcher during the 1960s in Arizona, where he was practicing law at the time. Rehnquist's critics produced affidavits alleging that he harassed voters at a predominantly black and Hispanic Phoenix precinct in 1964. Rehnquist issued a blanket denial that he had challenged the qualifications of minority voters in that period. Democrats found 14 witnesses who swore they had seen Rehnquist doing exactly that; additionally, a former assistant U.S. attorney in Phoenix, James Brosnahan, testified that Rehnquist was not being truthful when he said he was at the polls merely to help "arbitrate disputes" on Election Day 1962. Nonetheless, the FBI could not corroborate the charges when it looked into the matter for the Senate Judiciary Committee before the 1986 confirmation. When asked that year whether his 1971 denials were fully accurate, Rehnquist hedged slightly: "I think they are correct." Thirty-three Senators voted against his confirmation, a record for a Chief Justice.

In his first five years on the court, Rehnquist wrote 24 solo dissents, so many that he kept a Lone Ranger doll on the mantel of his office fireplace. He was one of only two Justices to vote against Roe in 1973. But as more Republican appointees joined him, Rehnquist began a slow march from the court's fringe toward its center. Beginning in the 1980s, Rehnquist successfully limited the number of death-penalty appeals that federal courts can hear and also made it easier for police to present evidence in court that had been tainted by procedural errors. Under Rehnquist, the court curtailed affirmative action and allowed governments to give vouchers to kids who wanted to attend religious schools.

But Rehnquist's conservatism mellowed over the years. His early 8-1 dissents, so provocatively right-wing in tone, deliquesced in later years into establishmentarian opinions defending many precedents—even liberal ones. For example, he angered conservatives in 2000 when he personally wrote the opinion upholding Miranda v. Arizona, the decision requiring police to read those they take into custody their rights, a ruling Rehnquist had savaged over the years. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," Rehnquist wrote in an opinion that the fiery young Rehnquist would have spat upon. For the aging Rehnquist, tradition weighed heavily.

Rehnquist managed the court with a rare combination of efficiency and amiability, and the other Justices will miss him. Justice William Brennan, the late liberal icon, once called Rehnquist "my best friend up here." Unlike some of his predecessors, Rehnquist was fair about assigning opinion writing and tried to tamp down office politics. "There's no one who doesn't like William Rehnquist," says the University of Virginia's Howard. "He really is someone who is easy to be around and has a very unpretentious and pleasant manner."

Now that Rehnquist is gone, his passions for limited government and strict constitutional interpretation will be carried further by his more ideological heirs, Thomas and Antonin Scalia—and, presumably, by whomever Bush appoints to replace him. But Scalia lacks the temperament—and Thomas, the vision—to match the departed Chief. His spare and often brilliant reasoning didn't ignite the conservative revolution that some predicted, but with the help of a new crop of like-minded colleagues, it did bring a generation of liberal activism on the court to an end.—With reporting by Melissa August, Perry Bacon Jr. and Viveca Novak/Washington