Friday, September 09, 2005


By William Fisher

As the late Chief Justice of the Supreme Court, William H. Renquist, was buried at Arlington National Cemetery, legal scholars, media analysts, and an endless stream of TV “talking heads”, continued to debate his legacy – and attempted to draw comparisons to his proposed successor, Judge John G. Roberts.

Rehnquist died Saturday at the age of 80, after battling thyroid cancer for a year. Arguably more than any other justice in Supreme Court history, Renquist was responsible for the Court’s tilt toward to right.

The Chief Justice served on the Court for 19 years, including 14 years as an associate justice. His service was one of the longest – and contentious – in the Court’s history.

When, at 47, President Richard M. Nixon named him to the Court as an associate justice in 1971, Rehnquist had already established his credentials as a “Goldwater conservative”, far outside the then mainstream of jurisprudence.

An assistant attorney general in the Justice Department, he was chosen to begin to carry out Nixon’s fervent desire to un-do the liberal inclinations of the court, dating back to the tenure of Chief Justice Earl Warren. It was the Warren Court that decided, for example, that racial segregation in schools was “inherently unequal”, overturning the “separate but equal” legal precedent in force since 1896.

But Renquist’s first two years on the Court cast him as a voice in the wilderness. Surrounded by liberal jurists like Chief Justice Warren E. Burger, and Associate Justices like William O. Douglas, William J. Brennan Jr. and Thurgood Marshall, he was often the only dissenter in court opinions.

For example, he was the lone dissenter in a death penalty case in 1981, writing, "The existence of the death penalty in this country is virtually an illusion,"
complaining that "virtually nothing happens except endlessly drawn-out legal proceedings." Renquist felt there were too many procedural obstacles blocking states from carrying out the death penalty.

But Renquist’s view ultimately prevailed. The combination of legislation and
Supreme Court decisions accelerated imposition of the death penalty beginning in the 1990s.

Renquist’s ability to dominate the Court was bolstered by the appointment of other conservative justices during the Reagan and George H.W. Bush Administrations. President Reagan appointed him Chief Justice in 1986. Justices Antonin Scalia, also appointed by Reagan in 1986, and Clarence Thomas, appointed by George H.W. Bush in 1991, amplified Renquist’s voice for federalism.

Rehnquist was a tireless advocate of what he called “pluralism”, by which he meant increasing rights for states versus federal power and fierce defense of an independent judiciary, but one that nonetheless believed in a limited role for the federal courts.

"Don't concentrate all the power in one place, " he once said.

This philosophy translated into many decisions that affirmed the right of states to legislate and adjudicate powers not specifically reserved to the federal government.

Rehnquist favored government accommodation of religion. He advocated for limiting the power of government agencies to take race into account in setting public policy. And his interpretation of the Constitution viewed a government of limited, defined powers, not a charter of broad, unenumerated rights.

For example, the Rehnquist court upheld the authority of police to conduct searches and have the results introduced as evidence; enhanced the immunity of police officers from lawsuits for constitutional violations; and reduced
the role of the federal courts in reviewing state-court criminal convictions.

The Renquist court also took a limited view of the guarantee of due process of law. In one high-profile case, it rejected a due process challenge to state laws that prohibit physician-assisted suicide.

In another case, the court rejected a number of Congressional districts drawn by Southern state legislatures in order to elect black representatives.

But Rehnquist did not win all his battles. Perhaps his most famous setback came in the 1973 Roe v. Wade decision, in which he was one of only two dissenters (the other was Justice Byron R. White). That landmark decision recognized a Constitutional right to abortion. He lost again – this time by a single vote -- in another abortion case, Planned Parenthood v. Casey in 1992 that would have overruled Roe.

Again, in a 1989 case, Texas v. Johnson, the court ruled that flag-burning was a form of political expression protected by the First Amendment, and Renquist was the only dissenting voice.

Some of his most consequential opinions involved limits on the meaning of the Constitution's due process guarantee. He was reluctant to use due process to establish new rights or limit state power.

In his majority opinion in a 1976 case, Paul v. Davis, the court held that a man who had been falsely identified as a convicted shoplifter could not sue the police chief for violating the 14th amendment's guarantee of due process of law.

Rehnquist's majority opinion in another case, United States v. Lopez in 1995, accelerated the debate over federal authority. The court found unconstitutional a law, the Gun Free School Zones Act of 1990, making it a federal crime to carry a gun within 1,000 feet of a school.

In the Lopez case, the court focused on the Commerce Clause in the Constitution. This clause – which gives Congress authority to regulate interstate commerce -- had been the principal source of Congressional hegemony over national affairs.

Renquist wrote that possession of guns near schools "has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms,"

The Lopez case led to numerous other decisions expanding state immunity from federal regulation and limiting the authority of Congress. Nearly all were decided by 5-to-4 votes.

That trend suffered a setback during the Court’s last term, when Renquist dissented in a 6 to 3 decision to uphold the power of Congress to prohibit the use of marijuana for medical purposes.

During Rehnquist's tenure, however, undoubtedly the most controversial decision came in the 5-to-4 Bush v. Gore ruling that ended the 2000 presidential election and the 36-day post-election period of lawsuits and recounts.

The court ruled that a lack of uniform standards for counting ballots from county to county meant that a recount would violate the constitutional guarantee of equal protection. There was no time to fix the problem, the majority held, so there could be no further counting.

Rehnquist’s concurring opinion argued that the Florida Supreme Court had usurped the State Legislature's authority, under the Constitution and a federal statute, to determine the rules for conducting elections.

While Renquist ordinarily stuck to his conservative judicial philosophy, his decisions were not without surprises. For example, he voted with the 7-2 majority in a June 2000 decision reaffirming one of the Warren Court's most famous and disputed rulings, Miranda v. Arizona, which required the police to advise suspects of their right to counsel and to remain silent.

The Miranda warnings "have become part of our national culture,” he wrote.

With the probability that the conservative Judge Roberts will be confirmed by the Senate as Renquist’s successor – and President Bush’s nomination of another conservative to fill the vacancy left by the retirement of Justice Sandra Day O’Connor – it is likely that the shift to the right begun by Renquist will not only continue, but accelerate.