William H. Rehnquist

Chief justice of the United States (1986-2005)

• Born: October 1, 1924
• Birthplace: Milwaukee, Wisconsin
• Died: September 3, 2005
• Place of death: Arlington, Virginia

Rehnquist served as solicitor-general of the United States, associate justice, and chief justice of the United States. He supported and presided over the Supreme Court’s conservative shift during his tenure.

Early Life

William H. Rehnquist (REHN-kwist) was born in Milwaukee, Wisconsin, and was raised in Shorewood, a middle-class suburb. His father was a paper salesman. The Rehnquist household was politically conservative and admired Alf Landon, Herbert Hoover, and Wendell Wilkie, all Republican candidates for the presidency. Rehnquist was educated in the public schools and finished one semester at Kenyon College in Gambier, Ohio, before enlisting in the U.S. Army Air Corps in 1943. He served as a weather observer in North Africa for the duration of World War II. On his return to the United States, he resolved to pursue his education in a warmer climate than his native Wisconsin, so he enrolled at Stanford University in Palo Alto, California. His education was financed by scholarship money provided under the G.I. Bill. He studied political science, earning both bachelor and master of arts degrees. An excellent student, he was elected to Phi Beta Kappa in 1948. In 1950 he returned to Stanford Law School, graduating first in his class. Sandra Day O’Connor, later to be a colleague on the United States Supreme Court, was one of his classmates.

Rehnquist’s reputation as a brilliant legal thinker brought him an interview with Supreme Court Associate Justice Robert Jackson, who was sufficiently impressed with Rehnquist to offer him an eighteen-month clerkship. After completing his clerkship with Jackson in 1953, Rehnquist moved to Phoenix, Arizona, a place he had chosen for its mild climate and conservative political leanings. He married Natalie Cornell that year as well. They raised a son and two daughters. In Phoenix he became associated with the firm of Evans, Kitchel & Jenckes. He practiced law in Phoenix for the next seventeen years, specializing mostly in litigation and establishing a reputation for integrity and professional competence. He became active in Republican Party work following advice that Justice Felix Frankfurter had given him and became a local party official. He supported Barry Goldwater’s presidential campaign in 1964 and during this period became closely associated with Richard Kleindienst, who was later to become attorney general of the United States. When Richard M. Nixon became president in 1969 Kleindienst suggested that Rehnquist be appointed to the Justice Department’s Office of Legal Counsel. Rehnquist did get the job, and when Justice John Marshall Harlan retired in 1971, Nixon chose Rehnquist to fill the vacated seat. Rehnquist’s nomination was overwhelmingly approved by the Democratic Senate despite his known conservative philosophy and want of judicial experience. Rehnquist took the oath of office as an associate justice of the United States, joining the Supreme Court on January 7, 1972.

Life’s Work

When Rehnquist came to the Supreme Court, he was practically the only voice of judicial conservatism on the Court despite the presence of three other Republican appointees. The Court’s liberal wing, led by Justices William J. Brennan, Hugo L. Black, William O. Douglas, and Thurgood Marshall, dominated the Court’s jurisprudence. Rehnquist became known as an outspoken dissenter against many of the Court’s most liberal decisions. He opposed the expansion of federal power, argued for limits on the scope of the Fourteenth Amendment’s due process guarantee, and strongly advocated states’ rights. He rarely prevailed in his early years on the Court. Indeed, some of the law clerks nicknamed him the Lone Ranger because he was the only justice to dissent in so many cases. However, his opinions were later to have a powerful influence as the composition of the Court changed in the years after his appointment.

Rehnquist’s judicial and political conservatism evidenced itself from the very beginning of his judicial career. His philosophy was based on three related constitutional ideas. The first of these was “strict construction,” which means that judges should decide cases as closely in accord with the text of the Constitution as possible. “Judicial deference” was Rehnquist’s second tenet. Judicial deference implies that judges should not use their power to determine whether a law is wise or not that is, judges should not second-guess Congressional determinations. “States’ rights” was the third idea. Rehnquist believed that too much power had flowed from the state governments to the federal government, distorting the constitutional balance established by the Framers of the Constitution in 1787, and he read the Fourteenth Amendment, which limits the powers of state governments, as narrowly as possible. For Rehnquist, as for Thomas Jefferson, the principle of states’ rights was supreme among the intentions of the Framers and thus should be strictly adhered to.

Over the years Rehnquist was remarkably consistent and persuasive in applying these principles. They led him to tend to resolve conflicts between individuals and the government in favor of the government, conflicts between state and federal authorities in favor of the state, and questions of the exercise of federal jurisdiction against its exercise when possible. Therefore he dissented in the abortion case Roe v. Wade (1973), accusing the liberal majority of interpreting the law to suit its own preferences when it took the power to regulate abortion away from the states. Another significant early dissent was in United Steelworkers v. Weber (1979), in which Rehnquist opposed giving broad effect to affirmative action rules and again castigated the majority for reading its own substantive opinions into the Constitution. Rehnquist also dissented from the majority in a variety of cases in which Congress had sought to apply federal laws directly to state governments.

By 1975 the growing conservatism of the Court allowed Rehnquist to prevail more frequently. He wrote for the majority in National League of Cities v. Usery (1975) which barred federal regulation of core state government functions. For Rehnquist this was a great victory that presaged increased influence in the Court.

As the more liberal justices left the Court and were replaced by new members appointed by Presidents Richard M. Nixon, Gerald R. Ford, and Ronald Reagan, Rehnquist’s influence and reputation grew. On the retirement of Chief JusticeWarren E. Burger, in 1986, President Reagan promoted Rehnquist to fill the vacancy. Liberals howled in protest. Many depicted Rehnquist as a racist and conservative extremist. Several unproven charges were leveled at Rehnquist during the confirmation struggle, but despite these, he was eventually confirmed by a solid majority of the United States Senate on September 17, 1986.

Rehnquist had always been an affable and popular man. His informality and unpretentious lifestyle brought a more relaxed and pleasant atmosphere to the Supreme Court. One of his most attractive characteristics was his love for Gilbert and Sullivan operettas, in which he performed as an amateur. This fancy later led him to alter the chief justice’s robes by adding yellow bars to the sleeves in imitation of the robes worn by the Lord Chancellor in Iolanthe. Thus his ability to prevail in the Court’s deliberations rested not only on his extraordinary persuasive powers and knowledge of constitutional law but also on the genuine warmth and respect felt for him by his colleagues and others who worked at the Court. These characteristics enhance the influence of a chief justice. After his promotion to chief justice, Rehnquist’s view of the law and Constitution prevailed in more than three-quarters of the cases in which he participated. He managed court affairs efficiently and also showed some moderation of his conservatism by voting with liberals to protect free speech and gay rights. In 1987 Rehnquist published The Supreme Court: How It Was, How It Is, a graceful and clear exposition of the Court’s history and traditions that can be read with pleasure by laypeople. Rehnquist’s book sold well and further enhanced his reputation.

Despite some amelioration, the court under Rehnquist’s leadership moved constitutional interpretation consistently toward the conservative side of the spectrum. “Original intention” prevailed most obviously in the areas of federal-state relations, in which exercises of federal power and federal court jurisdiction over state governments was limited again and again. Among the most notable of these decisions was New York v. United States (1992), in which a federal law requiring state governments to assume responsibility for low-level radioactive wastes was held unconstitutional because it invaded state sovereignty. A similar ruling in Printz v. United States (1997) held that there is no federal power to compel local elected sheriffs to perform the background checks required for handgun purchases under the Brady Bill.

One issue in which Rehnquist’s views have not entirely prevailed is the matter of abortion rights. Rehnquist, who dissented in Roe v. Wade, continued to vote and argue against abortion rights at every opportunity. Although he was unable to establish a coalition or majority in the Court to agree with him on Roe v. Wade, his dissenting view in the 2000 late-term (partial birth) abortion case Stenberg v. Carhart was to be adopted by a slim majority of the court in April, 2007, in Gonzales v. Carhart .

The most stunning and significant decision of the Rehnquist Court took place in 1995 in United States v. Lopez . Here, the Court, for the first time in nearly sixty years, held unconstitutional a federal statute because the activity being regulated was beyond the power of the federal government altogether, and not because the law conflicted with some constitutional right. In the Gun-Free School Zones Act of 1990, Congress had made it a federal offence for a person to possess a firearm within a school zone. Like most federal social or economic legislation, the constitutional basis for this statute is the federal power to regulate interstate commerce. Ever since the New Deal, the Supreme Court had approached this kind of case with the utmost deference to Congress’s opinion as to whether an activity affects interstate commerce. This is very important constitutionally, for only if commerce is affected may an activity be regulated by the federal government. However, in Lopez, the court held 5-4 that mere possession of a firearm near a school has no connection with interstate commerce and consequently cannot be regulated. Chief Justice Rehnquist wrote the majority opinion in the case, which may turn out to establish the high-water mark of federal power expansion in the United States. Rehnquist’s opinion in the case also contains a brilliant summary of the rules and precedents for commerce clause jurisprudence. His classification of these rules is likely to guide commerce clause jurisprudence for many years to come. The Court applied similar reasoning in United States v. Morrison (2000), in which Rehnquist, writing for the majority, struck down the civil damages portion of the federal Violence Against Women Act (1994).

Although not a slavish believer in stare decisis (the force of precedent), as his abortion opinions show, Rehnquist did believe in the continuity and stability of the law. In Dickerson v. United States (2000) he voted to reaffirm Miranda v. Arizona (1966).

Rehnquist’s tenure as chief justice was unusual because it was marked by two extraordinary events. He presided over the 1999 Senate impeachment trial of President Bill Clinton , the first chief justice to have to perform this duty since the impeachment trial of Andrew Johnson in 1868. The disputed 2000 presidential election also catapulted the Supreme Court onto center stage. In Bush v. Gore (2000), Rehnquist joined five other justices in holding that the Florida Supreme Court decision calling for a “standardless” manual recount of the ballots was not required by the equal protection clause of the Fourteenth Amendment. The effect of this decision was to assure the election of George W. Bush to the presidency.

Rehnquist became ill with thyroid cancer in 2004. Although he missed most of the oral argument in cases thereafter, he continued to participate in the Court’s internal management until his death in September of 2005.

Significance

Rehnquist’s tenure on the Supreme Court allowed him to observe and, at least partly, to direct a substantial change in political and constitutional ideology. From his early struggle as a dissenter, often alone, against a liberal majority, through his role as chief justice and the leader of a conservative coalition, Rehnquist consistently fought successfully for his ideas. Under his leadership the number of unanimous or near-unanimous decisions made by the Court increased, thus enhancing the public’s perception of the level of professionalism on the court. By seeking compromise rather than confrontation, Rehnquist was able to maintain high credibility for the Court. Public perception of judicial unity in the Rehnquist years contributed to the success of the Court’s conservative shift, and although the appointment of two more liberal justices by the Clinton administration balanced the conservative wing of the court to some extent, Rehnquist’s popularity with his colleagues assured that his conservative views will remain strong on the court for a long time to come.

Bibliography

Boles, Donald E. Mr. Justice Rehnquist, Judicial Activist. Ames: Iowa State University Press, 1987. Boles singles out federalism and separation of powers as areas in which Rehnquist operated as a judicial activist rather than deferring to Congress.

Davis, Derek. Original Intent: Chief Justice Rehnquist and the Course of American Church/State Relations. Buffalo, N.Y.: Prometheus Books, 1991. Insightful discussion of how Rehnquist’s underlying idea of “original intent” affects his views and votes in religious freedom cases.

Davis, Sue. Justice Rehnquist and the Constitution. Princeton, N.J.: Princeton University Press, 1989. Good clear summary of Rehnquist’s constitutional views. At 247 pages, it is fairly short, but Davis covers most of the important areas.

Jenkins, John A. “The Partisan: A Talk with Justice Rehnquist.” The New York Times Magazine, March 3, 1985, 28-35, 88, 100-101. Clear discussion of Rehnquist’s opinions, emphasizing the strength and consistency of his views.

Keck, Thomas M. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press, 2004. Keck argues that the Rehnquist Court’s turn to the right is a form of judicial activism rather than the more principled deference to legislative will that would be true judicial self-restraint.

Rehnquist, William H. The Supreme Court: How It Was, How It Is. New York: Morrow, 1987. This partly autobiographical and partly historical discussion of the Supreme Court’s traditions and internal patterns is clearly and simply written. Quite simply it may be the best available introduction to the Court and to Rehnquist.

Tushnet. Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005. A careful analysis of the major issues decided by the Rehnquist Court. Tushnet’s view that the conservative majority represents two very different strands of constitutional thought is insightful and useful.