William H. Rehnquist (1924–2005)

William Rehnquist grew up in a Republican suburb of Milwaukee, Wisconsin. After serving in the Army Air Corps during World War II, he attended Stanford University on the G.I. Bill, where he earned bachelor’s and master’s degrees in political science. After earning a second master’s in government at Harvard University, he returned to Stanford for law school, where he graduated first in his class in December 1951. After graduation, he served for sixteen months as a clerk for Supreme Court Justice Robert Jackson. Afterward, he moved to Phoenix, Arizona, joined a local law firm, married and had three children, and became involved in Republican politics. When Richard Nixon won the presidency in 1968, Rehnquist was one of a number of former Barry Goldwater supporters who traveled to Washington to assume positions in the Department of Justice. Rehnquist himself took charge of the Office of Legal Counsel, a prestigious but not very public position providing legal advice to the president.

He was the surprise nominee for the last Supreme Court vacancy during the Nixon administration in October 1971. In the years prior to his nomination, confirmation battles over Supreme Court appointments had become common and intense. Organized opposition quickly arose to the conservative Rehnquist’s confirmation, and nearly two months after his nomination he was confirmed by a divided Senate.

On the Court, Rehnquist met the expectations of friends and foes alike, establishing a reputation for an excellent legal mind and iconoclastic conservative views. In the 1970s, he became known as the ‘‘Lone Ranger’’ for his frequent solo dissents. When Chief Justice Warren Burger decided to retire in 1986, officials in Ronald Reagan’s administration had no doubt as to his preferred replacement. After another prolonged and bitter confirmation fight, the Republican- controlled Senate approved Rehnquist’s elevation to chief justice. As chief justice, Rehnquist helped guide the Court in a generally more conservative direction.

In addition to his judicial opinions on the bench, Rehnquist also spoke and wrote frequently off the bench. He first came to public attention with a 1957 article in U.S. News and World Report decrying the influence of liberal law clerks on the work of the Supreme Court. While serving as associate justice, his speech criticizing the ‘‘notion of a living constitution’’ and calling for a more restrained judiciary gained particular notoriety. After being elevated to chief justice, he indulged his more scholarly and historical interests with books on the history of the Supreme Court, the disputed presidential election of 1876, historical impeachments, and civil liberties in times of war. The latter works proved surprisingly timely, as they were soon followed by the impeachment of President Bill Clinton (with the chief justice presiding over the subsequent trial in the Senate) and the launch of the war on terrorism, respectively. The book on the election of 1876 followed the election dispute of 2000.

From the moment he joined the Supreme Court, Rehnquist became perhaps the most prominent critic of the liberal jurisprudence of the Warren Court and early Burger Court. In his written opinions and public speeches, Rehnquist warned against judicial activism and policymaking. Rather than being the ‘‘voice and conscience of contemporary society,’’ Rehnquist urged judges to see their role as a more limited one of deciding cases in accord with the values ‘‘derived from the language and intent of the framers’’ of statutes and the Constitution. In a pluralistic society, people will necessarily differ on judgments of moral values and political principle. Such judgments have a ‘‘moral claim ... upon us as a society’’ only as they derive from their ‘‘having been enacted into positive law.’’ The exercise of judicial review based on value judgments that cannot fairly be derived from the Constitution ‘‘is genuinely corrosive of the fundamental values of our democratic society’’ and ‘‘an end run around popular government.’’ The only alternative for judges is the discipline of the legal text read in light of its original meaning. More substantively, Rehnquist argued, the Constitution is most notably a grant of power to government to resolve social problems through democratic deliberation. The central purpose of judicial review, in his view, is to uphold the balance established in the Constitution between government power and individual liberties. The Court ‘‘upholds the Constitution’’ just as much when it rules in favor of the government as when it rules in favor of individual liberties. In these arguments, Rehnquist echoed the Progressive critics of the Court of the early twentieth century, who similarly complained that judges were insufficiently deferential to legislative majorities, excessively prone to reading their own moral judgments into the law, and too willing to act as a ‘‘third legislative branch.’’

Rehnquist staked out firm positions in a variety of areas of constitutional law. In addressing separation of powers and federalism, Rehnquist was guided by a distinct sense of the respective responsibilities of the different branches and levels of government. He was relatively protective of what he regarded as important to the president’s ability to carry out his duties. The chief justice wrote the opinion upholding the independent counsel statute, however, arguing that the independent counsel neither unduly interfered with the performance of the president’s constitutional duties nor signified the encroachment of another branch of government on the president’s prerogatives. From his service as a law clerk through his tenure as chief justice, Rehnquist insisted that the Court is the ‘‘ultimate expositor of the constitutional text.’’ Although he argued that the Court should exercise restraint when facing controversial social issues or innovative claims of new constitutional rights, he believed that the judiciary should act more aggressively in patrolling the boundaries of authority among the various branches of government and between the state and national governments. In particular, Rehnquist was a strong supporter of reviving judicial enforcement of constitutional limits on federal power vis-a´-vis the states. He was briefly able to win the support of a majority of the justices for this view in the 1976 decision in National League of Cities v. Usery, which prevented the application of the federal Fair Labor Standards Act to state government employees. That decision was later overturned, but in the 1990s the chief justice found a stable five-person majority that imposed a variety of new constitutional restrictions on congressional power relative to the states.

The federalism decisions of the Rehnquist Court have particular implications for civil liberties, especially when combined with Rehnquist’s understanding of the substantive content of individual rights. As Rehnquist concluded in one such case, ‘‘Congress may not legislatively supersede our decisions interpreting and applying the Constitution’’ by, for example, altering judicially determined protections against Coerced Confessions for criminal defendants in state courts. Rehnquist led the Court in arguing that Congress is limited in its authority to allow private lawsuits against state and local governments in the federal courts or to create new rights for individuals against the state governments. The states, under this approach, are primarily constrained by the judiciary’s understanding of civil liberties, not by the federal legislature’s.

Rehnquist also took influential positions on a number of substantive civil liberties. He was generally skeptical of the expansion of civil liberties undertaken by the Court since the late 1950s, especially those that are not clearly found on the face of the constitutional text or in historical practice. He also urged his colleagues to adopt a strong presumption of constitutionality for the acts of government challenged in civil liberty cases so as to allow elected representatives to balance the competing concerns of individual rights and the public welfare.

Rehnquist was more successful in winning support for his views on civil liberties in some areas than in others. One area of relative success was criminal justice, where Rehnquist’s support for law enforcement was shared by Richard Nixon, Ronald Reagan, and their judicial appointees. Rather than ‘‘incorporating’’ the requirements of the Bill of Rights into the due process clause of the Fourteenth Amendment and applying them to the states, Rehnquist favored a more conservative approach to due process requirements that emphasized fundamental fairness. Such fairness to individual criminal defendants could be achieved by a variety of procedures, including some that the Court would not accept under the Bill of Rights if implemented by the federal government. To Rehnquist, the Court should accept a ‘‘healthy pluralism’’ in the states with minimal federal review. In keeping with this approach, Rehnquist helped expand the authority of police officers to search suspects for weapons and evidence and to carve out exceptions to the exclusionary rule, by which evidence unconstitutionally seized by the police is kept out of criminal trials. He likewise helped limit the application of the Miranda rule and its protections against self-incrimination. He favored a streamlined appellate process in death penalty cases, and accepted both the death penalty and long sentences for ‘‘career criminals’’ as consistent with the constitutional ban on cruel and unusual punishment.

Rehnquist also found allies for his accommodationist view of church and state issues. He strongly argued against the ‘‘wall of separation between church and state’’ that guided the Court from the late 1940s as unworkable in practice and based on bad history. The Establishment Clause of the First Amendment is better understood, according to Rehnquist, as prohibiting governmental preferences among religious sects or the establishment of a single national religion but allowing the government to pursue ‘‘legitimate secular ends through nondiscriminatory sectarian means.’’ This would allow, for example, religious schools to participate in student voucher programs. Rehnquist would also have allowed governments to express a generalized preference for religion over nonreligion, but this was firmly rejected by Justice Sandra Day O’Connor, among others. In relation to the free exercise clause, Rehnquist argued that the government should not be required to grant exemptions from generally applicable laws that happen to burden religious beliefs, although the state may voluntarily grant such exemptions. This position was later adopted by the Court.

Rehnquist read the free speech and press clauses of the First Amendment narrowly. He was willing to balance the public interest in social order against various forms of expressive conduct, such as flag burning or nude dancing, although he also wrote the opinion protecting a scandalous political parody in Hustler magazine. When the government acts in something other than its capacity as a legislator—for example, when operating a school, library, prison, or army—he was willing to give it a freer hand to regulate speech. Rehnquist was willing to give the government substantial discretion in passing commercial regulations that affect speech. He wrote the opinion for the Court allowing states to require private shopping malls to open their doors to petition signature collectors, for example. He was sharply opposed to the initial extension of First Amendment protection to ‘‘Commercial Speech,’’ arguing that the Constitution was concerned with ‘‘public decisionmaking as to political, social, and other public issues, rather than with the decision of a particular individual as to whether to purchase one or another kind of shampoo.’’ He also emphasized that corporations enjoy free speech protections only to the extent that they advance ‘‘the societal interest in receiving information and ideas.’’ Although Rehnquist recognized political speech as central to the First Amendment, leading him to object to campaign finance regulations that circumscribe donations to political parties; for example, he was still willing to accept various restrictions on how that speech is organized and exercised, such as government regulation of fundraising for political causes and door-to-door political canvassing.

In keeping with his general approach to constitutional interpretation and civil liberties, Rehnquist was particularly critical of the Court’s jurisprudence on ‘‘unenumerated rights’’ or ‘‘substantive due process.’’ To Rehnquist, such rights were the legacy of the Court’s economic liberty decisions in the early twentieth century, which were abandoned under political pressure during the New Deal. In his first judicial encounter with such a case, in Roe v. Wade (1973), which established a constitutional right to abortion, Rehnquist argued that all ‘‘unwanted state regulation of consensual transactions,’’ whether contracts for labor or medical services, were subject to a common standard of deferential judicial review to ensure only that the law in question was rationally related to a valid state objective. He continued to complain in such cases that, quoting Justice Byron White, the ‘‘Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution.’’ But he also came to accept the existence of some ‘‘fundamental rights and liberties’’ that require more searching judicial scrutiny under the due process clause of the Fourteenth Amendment, although he held that these must be deeply rooted in ‘‘our Nation’s history, legal traditions, and practices,’’ such as the right to marry or to refuse unwanted medical treatment.

In interpreting the equal protection clause of the Fourteenth Amendment, Rehnquist similarly urged his colleagues to avoid the temptation to engage in ‘‘endless tinkering with legislative judgments’’ simply because legislators could have drafted ‘‘a fairer or a better law.’’ To Rehnquist, the only ‘‘area of the law which the Framers [of the equal protection clause] obviously meant it to apply’’ was in the context of ‘‘classifications based on race or national origin, the first cousin of race.’’ Any governmental classification by race, notably including Affirmative Action programs, therefore faced strict judicial scrutiny and was presumptively invalid. He denounced efforts to move beyond this core area of equal protection concern as creating ‘‘out of thin air’’ doctrines that are ‘‘so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to particular types of legislation.’’ In particular, he dissented from the Supreme Court decisions of the mid-1970s extending heightened judicial scrutiny to governmental classification by gender, arguing that such doctrinal innovations were inconsistent with the history and purpose of the Fourteenth Amendment. By the mid- 1990s, however, he had accepted this extension of the equal protection clause as well settled and wrote a concurring opinion in the case striking down the male-only admission policies of the Virginia Military Institute and the majority opinion allowing Congress to use the Fourteenth Amendment as a justification for applying federal family leave requirements to state governments.

From his initial appointment to the Supreme Court in 1971, Rehnquist was a powerful advocate of a more conservative constitutional philosophy. In conflicts between the individual and the government, he typically showed deference to the government. Wary of the possibility of judges imposing their own values on society, he urged the Court to read individual rights narrowly and uphold the decisions of democratic majorities. Rehnquist was willing for the Court to play a more active role in umpiring disputes between government institutions. In this context, he often favored protecting the discretion of state and local governments from national interference in order that they might respond to the preferences of their particular communities.

KEITH E. WHITTINGTON

References and Further Reading

• Bradley, Craig, ed. The Rehnquist Legacy. New York: Cambridge University Press, 2005.
• Davis, Sue. Justice Rehnquist and the Constitution. Princeton, NJ: Princeton University Press, 1989.
• Irons, Peter H. Brennan vs. Rehnquist: The Battle for the Constitution. New York: Alfred A. Knopf, 1994.
• Rehnquist, William H., The Notion of a Living Constitution, Texas Law Review 54 (1976): 693–706.
• ———, Government by Cliche´, Missouri Law Review 45 (1980): 379–93.
• ———. The Supreme Court: How It Was, How It Is. New York: William Morrow and Company, 1987.
• ———. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: William Morrow and Company, 1992.
• ———. All the Laws But One: Civil Liberties in War Time. New York: Vintage Books, 2000.
• ———. Centennial Crisis: The Disputed Election of 1876. New York: Knopf, 2004.

Cases and Statutes Cited

• Roe v. Wade, 410 U.S. 113 (1973)
• National League of Cities v. Usery, 426 U.S. 833 (1976)