Editorials on Chief Justice William Rehnquist

The New York Times
Editorial
September 5, 2005
Chief Justice William Rehnquist

Supreme Court justices often evolve in their time on the court, but William Rehnquist held on to his conservative views while the court moved toward him. Chief Justice Rehnquist, who died this past weekend, served for 33 years, more than half as chief justice, and in that time he won many victories. But on the biggest issues, he was farther right than the majority of his colleagues. In the end, he never managed to make the Rehnquist court his own.

Mr. Rehnquist was a lawyer in the Nixon Justice Department when he was named to the court in 1971. Having spoken out against laws banning racial discrimination in 1950's Arizona, and having worked in Barry Goldwater's 1964 presidential campaign, he was an ideologically charged choice. In his early years on the court, he found himself dissenting frequently, notably in Roe v. Wade.

In time, however, the court had a conservative majority, and Mr. Rehnquist, who was named chief justice in 1986, successfully promoted many legal causes he had long held dear: limiting the federal government's power; scaling back the protections given to criminal defendants; dismantling school desegregation orders; and knocking out holes in the wall between church and state.

Even after the conservatives' ranks grew, however, he was unable to prevail in the most important cases. He dissented when the court upheld the University of Michigan's affirmative action program and when the court imposed important limits on the government's conduct of the war on terror. And he was never able to persuade four colleagues to join him in overturning Roe.

The moment for which Chief Justice Rehnquist may be remembered most was far from his best. After the 2000 election, when he presided over Bush v. Gore, the chief justice fell short of the statesmanship that was required. With the presidency hanging in the balance, Republicans asked the court to stop the recounting of votes in Florida. Many Americans were hoping for a Solomonic decision, and a unanimous one, that would unite the country. But the court ruled for George Bush in a bitterly divided, and unpersuasive, 5-to-4 decision that declared, perversely, that it would not be binding in future cases.

Chief Justice Rehnquist wrote a book last year about the disputed election of 1876, defending the decision to award the popular-vote loser, Rutherford B. Hayes, the presidency. It felt like Chief Justice Rehnquist's brief for his own role in Bush v. Gore, and an attempt to write his own legacy.

Chief Justice Rehnquist's friends, and even his critics, admired his passionate devotion to the court on which he served so long, and the bravery with which he carried on even after he became mortally ill with cancer. The final word on his service, however, will be history's, and it is likely to view him as hardly a great jurist, but one who loved the court and had a significant influence on it.

The Los Angeles Times
EDITORIAL
Judicious restraint
September 5, 2005

THE LEGACY OF WILLIAM H. REHNQUIST is best captured by two sentences he wrote 15 years apart. The first he wrote in dissent in a 1985 case about minimum-wage requirements; the second he wrote for the majority in a 2000 case upholding the constitutionality of Miranda warnings for criminal suspects.

The dissent is terse and condescending. "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this court," he wrote. But 15 years later, after he had been named chief justice, Rehnquist had a newfound respect for stare decisis, the principle that courts should respect past decisions: "Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."

Rehnquist, who became chief justice in 1986 after 14 years as an associate justice, died Saturday at the age of 80. While the legacy of his court is more complicated than usually portrayed — its suspicion of federal power, and its deference to the states, had limits, as its decision in Bush v. Gore in 2000 showed — the legacy of Rehnquist himself is more straightforward. During his tenure as chief justice, Rehnquist adapted his principles to the court's.

Although he dissented in Roe v. Wade in 1973, he nonetheless presided over the court's 1992 decision that reaffirmed the constitutional right to abortion. And while he was an early and energetic critic of the Miranda decision in 1966, as chief justice he upheld it. Of course, Rehnquist could afford to be magnanimous, since an overturning of either ruling was unlikely, and he had already brought the court around to his way of thinking on such issues as the constitutionality of the death penalty and private-school vouchers (both were permissible, with caveats).

As President Bush contemplates Rehnquist's replacement for chief justice, he faces daunting ideological, practical and political challenges. If he wants a nominee who is philosophically palatable, can begin confirmation hearings quickly and stands a good chance at gaining Senate approval, he may want to consider John G. Roberts Jr., Rehnquist's former law clerk. Roberts seems to value the two traits that may be the most enduring legacy of the Rehnquist court: collegiality and efficiency. He also appears to respect the traditions of both the law and the court.

As Rehnquist "grew in the job" — a phrase he disdained — the chief justice came to appreciate, however modestly, the importance of stability over ideology. President Bush could best show his respect for the law, and the late chief justice, by doing the same.

The Washington Post
Editorial
The Rehnquist Era
Monday, September 5, 2005; A30

WILLIAM H. REHNQUIST arrived at the Supreme Court in 1972 at the height of an era of aggressive judicial liberalism. By the time of his death Saturday, the court had become controversial as much for its conservative instincts as for its remaining liberal ones. President Richard M. Nixon chose Mr. Rehnquist because of his reputation, as Mr. Nixon less than gracefully put it, as a "mean and rough" right-winger. True to form, Justice Rehnquist, who as a Supreme Court clerk had written memos to Justice Robert H. Jackson arguing against school desegregation, began his judicial career in often lonely dissents famous for their hard edge. But as chief justice, a position he assumed in 1986, he ably managed a philosophically divided but increasingly conservative court and oversaw an era of profound change in the nation's jurisprudence. We disagree with many of his opinions and votes, and some of the tendencies of the Rehnquist Court have wrought real damage. But in important respects, the broad change he ushered in was necessary.

The chief justice's death comes at an awkward moment, with the confirmation hearings for his former law clerk, Judge John G. Roberts Jr., about to commence. The unfortunate fact of two vacancies makes it important that the Senate proceed with the Roberts hearings and that President Bush move quickly to name a new chief justice.

Under Chief Justice Rehnquist's leadership, the court restrained itself in areas of earlier excess: It became far less free-wheeling in its embrace of novel claims of new rights. But critically, the Rehnquist Court did not by and large reverse the controversial precedents it inherited. Rather, it generally reinforced them. The overall message was that even as the court repudiated the methodology of its earlier era, the historic opinions of that era stood.

This attitude separated the chief from Justices Antonin Scalia and, particularly, Clarence Thomas -- the other members of the court's right flank. The chief was more pragmatic and politically savvy than the other two, and some conservatives came to resent what they considered his failures of principle and his tendency to write around inconvenient doctrine. But this very flexibility, combined with his undoubted administrative skills in running the federal judiciary, was a big part of his effectiveness as chief. The chief justice's pragmatism should not be overstated; the fact that the Rehnquist Court was not more radical was as much a reflection of the power of the court's centrist justices, Anthony M. Kennedy and the retiring Sandra Day O'Connor, as it was of the chief's own attitudes. In other words, he often didn't have the votes. Still Chief Justice Rehnquist often chose statesmanship over ideology, and despite the shrill fears of his detractors, there was no radical transformation of the law.

The Rehnquist Court, to be sure, developed its own areas of excess, and, like its virtues, these to a great extent reflected the chief justice's instincts. The court's consistent blind eye to the rights of accused criminals, for example, reflected both his constrained vision of federal protections and his breezy deference to state courts even when they produced manifestly unjust results. His solicitude for states' rights and curtailing federal power portends great problems if taken too far. Ironically, the high court these days -- though professedly more restrained than in prior eras -- actually strikes down more acts of Congress than it did in its liberal activist days. This reflects both the fact that the court in the past was more concerned with unconstitutional behavior by the states, rather than the federal government, and the fact that the Rehnquist Court was not always as restrained as its rhetoric. And while the court's intervention in the 2000 election was a complicated affair, many liberals regard it as a searing moment of judicial politicking winning out over the conservative majority's stated judicial approach.

Still, it is wrong to dismiss the changes the Rehnquist Court brought about as simply reflecting conservative politics. They go far deeper than that and reflect, however imperfectly and inconstantly, a legitimate concern with having the court -- which is, after all, composed of unelected and unaccountable judges -- not exceed its place in a democratic society. Chief Justice Rehnquist was not a philosophically pure or altogether consistent champion of this reorientation, but it is the legacy of the court that bears his name. Warts and all, it is a considerable achievement.