Yet to go beyond the language of the Constitution, and the meaning that may be fairly ascribed to the language, and into the consciences of individual judges, is to embark on a journey that is treacherous indeed.—William H. Rehnquist (October 1, 1924–September 3, 2005) The Supreme Court: How It Was, How It Is With his passing at the age of eighty from thyroid cancer and after thirty-three years on the U.S. Supreme Court, with nineteen of them as the sixteenth chief justice, William Hobbs Rehnquist left a conservative mark on the Court, just as Chief Justice Earl Warren shaped a liberal Court in the 1960s. Rehnquist served as a law clerk to Supreme Court Justice Robert H. Jackson, practiced law in Phoenix, and was active in local politics, which led to a friendship with and speech writing for Senator Barry Goldwater. After a stint in the Justice Department’s Office of Legal Counsel, Rehnquist was nominated to the U.S. Supreme Court at the age of forty-seven by President Richard M. Nixon and confirmed by the U.S. in a sixty-eight to twenty-six vote in 1972 to a seat vacated by Justice John Marshall Harlan. Rehnquist was elevated to chief judge in 1986 by President Ronald Reagan and confirmed by a Democratic-controlled Senate to become the third-longest serving chief justice, with a record of working with sixteen other justices during his tenure on the high court.
Like the stylistic touch of adding gold stripes to the sleeves of his black robe in 1995 after being inspired by the robes worn by the Lord Chancellor in a production of the Gilbert and Sulivan operetta Iolanthe, Justice Rehnquist’s position on many fronts and dissents earned him the nickname ‘‘Lone Ranger.’’ Justice Rehnquist at one time stood alone against the rest of the Supreme Court in trying to curb the direction that individual rights took over societal interests, and after nearly two decades as its chief, he transitioned the Court’s direction on individual rights by not recognizing any new suspect classifications that would otherwise call for an intermediate or strict scrutiny review. It can also be noted that the Court under Chief Justice Rehnquist did not create any serious expansions of individual protections beyond those established by the Burger and Warren Courts of the 1960s up through the mid-1980s.
Judge Rehnquist dissented when the Court struck down all state death penalty laws in 1972, when the right to abortion was considered a constitutional guarantee of personal liberty in the 1973 decision of Roe v. Wade, in 1992 in Planned Parenthood v. Casey, and in Stenberg v. Carhart (2000), a five-justice majority with O’Connor striking down a Nebraska state law banning what critics called ‘‘partial birth’’ abortions.
Decisions in the Rehnquist era have also rejected nearly every affirmative action plan in whole or in part involving education scholarships, voting districts, public contracts, and even law school admission programs. The Rehnquist Court was also not as aggressive as the Warren or Burger Courts in affirmative action as a vehicle that has been viewed as remedying past discrimination.
Justice Rehnquist, a longtime critic of the Court’s ruling in 1966 that requires police to give crime suspects ‘‘Miranda warnings’’ of the right to remain silent, came to accept such warnings as ‘‘a part of our national culture’’ in Dickerson v. United States (2000) by finding that Congress could not legislatively reverse the Court’s long-held decision of Miranda v. Arizona (1966) and supported the continuance of the now well-known Miranda rights.
In the twilight of his leadership, Rehnquist himself was still on the dissenting side in several major rulings, including those favoring gay rights in 2003 and congressional limits on campaign contributions in 2004. In the 2005 term, he dissented in a ruling that said federal antidrug laws trumped state laws that allow ‘‘medical marijuana,’’ and another that allows governments to use their eminent domain powers to seize property for private economic development. He also opposed the Court’s ban on capital punishment in 1972 and was with the majority when the Court reinstated it four years later.
When William H. Rehnquist joined the U.S. Supreme Court, less conservative justices outnumbered him. But as President Ronald Reagan made appointments— Sandra Day O’Connor in 1981, Antonin Scalia in 1986, and Anthony Kennedy in 1988—the views of the Court’s majority quickly merged with those of Rehnquist. During the final years of the twentieth century, Rehnquist, Scalia, and Clarence Thomas, an appointee of the President George H.W. Bush in 1991, have made up the core of the court’s conservative wing, often joined by O’Connor and Kennedy. Those five justices were in the majority in one of the Court’s biggest decisions, and that may very well be the case most representative of the Rehnquist era, a five-to-four ruling in Bush v. Gore (2000) in which the Court stopped the recounts of presidential ballots in Florida and handed Republican George W. Bush the White House. For a Court that normally focused on ensuring states’ rights, the decision was a dramatic statement of federal power. It also raised questions about whether the decision was a reflection of partisan politics as much as it was law. Rehnquist was clearly uncomfortable with the Court’s role in the election dispute—and perhaps by how his Court’s legacy would be marked by it. He said in his yearend report on January 1, 2001, that he hoped the Court would never be in such a position again.
Just as the Warren Court worked to define and give new direction to the protections of what was viewed as the fundamental rights of the individual, the Rehnquist-era Court has done so as well in a different direction with decisions that have shaped the country. Chief Justice Rehnquist articulated and guided the Supreme Court in a direction toward what some consider a narrower view of the ‘‘plain meaning’’ of the Constitution.
ROBERT DON GIFFORD
References and Further Reading
Cases and Statutes Cited