Assessing Chief Justice William Rehnquist's Tenure on the Supreme Court: Is Jeffrey Rosen's Assessment Unduly Rosy?

By EDWARD LAZARUS

Thursday, Feb. 15, 2007

As the Roberts Court begins to take shape, the history of its direct predecessor, the Rehnquist Court, is beginning to be written. And, thus far, the story being told is remarkably benign.

In his recent book The Supreme Court: The Personalities and Rivalries that Have Defined America, Jeffrey Rosen, a law professor and legal affairs editor of The New Republic, opines that, to build consensus, Chief Justice Rehnquist ultimately "moderated the ideological passions he had displayed during his first years on the Court" and devoted himself to building and ensuring "the legitimacy of the institution itself."

Rosen further describes Rehnquist as someone uncommonly "devoted to majority rule," who, out of "reverence" for this principle, ultimately reconciled himself to Brown v. Board of Education (despite his initial opposition to the decision). In the end, Rosen contends, Rehnquist "made no attempt to dismantle the civil rights revolution, as political opponents feared he would."

This portrait, coming from an important and highly regarded observer of the Court, has to be reckoned with. But to me it just doesn't add up - though it does cause me to marvel at the Court's folkloric power to make us idealize the people who inhabit the Court and the decisions they render.

Some Basic, Agreed-Upon Aspects of Rehnquist's Tenure on the Court

How is Rehnquist's work as Chief Justice appropriately summarized? I think most Court observers would agree on a few points:

First, Rehnquist was a fair administrator, one who put a premium on efficiency and mostly did not play favorites inside the Court (as his predecessor Warren Burger had), except to the extent of rewarding the justices who most promptly finished their work.

Second, Rehnquist was a zealous advocate for the federal judiciary and, in a non-partisan way, sought greater resources for the federal courts.

Third, Rehnquist presided over a Court that moved significantly to the right politically, yet failed to overturn (and ultimately reaffirmed) most of the Warren era precedents that are particularly anathema to judicial conservatives (like Roe, Bakke, and Miranda). In general, the Rehnquist Court hollowed out these decisions to one degree or another, but left them standing.

The Key Question: Is It Truly Accurate to Say that Rehnquist Embraced "Moderation"?

Beyond these points, however, there is a pretty darn strong case to be made that Rehnquist's consensus-building "moderation" is vastly overstated, as is his devotion to majority rule and to the Court's institutional legitimacy and integrity.

To begin with, to the extent Rehnquist sincerely sought to be a consensus-builder (and given his aversion to internal debate at the Court, I doubt he truly viewed this to be his role), he failed badly. One of the most troubling hallmarks of the Rehnquist era was the Court's unprecedented propensity to splinter. In many important cases, the Court was so severely divided that the justices failed to issue any majority opinion at all. Instead, the Court would issue a plurality opinion accompanied by various overlapping and intertwined partial concurrences and dissents. As a result, there was no five-vote majority for any principle of law. Due to this failure at consensus building, the Rehnquist Court sowed uncertainty and confusion into broad swathes of the law.

As for Rehnquist's purported moderation, the evidence indicates that it was more strategic than genuine. Rehnquist pushed his own brand of conservatism - law and order, states' rights, anti-civil rights - as far as the politics of the Court would go. On those occasions when he could muster five votes to overturn a liberal Warren Court precedent, he did so. However, on a Court controlled by the more moderate Kennedy and O'Connor, those opportunities came relatively infrequently. And so Rehnquist acquiesced in merely cutting back (rather than scuttling) much of the Warren Court's rights revolution. There is no indication here that through conscious, restraint, Rehnquist did less than he could to advance his agenda; only that what he could do, in light of the fact that his was still only one vote among nine, was limited.

The area of civil rights - where Rosen says Rehnquist made "no attempt to dismantle the civil rights revolution" - is a good case in point. Sure, Rehnquist never tried to overrule Brown, nor did he ever attempt to reverse Warren era decisions upholding the constitutionality of the cornerstone civil rights acts of the 1960s. As a realist, Rehnquist understood that attempting such a full counter-revolution would be futile.

But this kind of acceptance is hardly the same as true acquiescence. Almost without exception, when Rehnquist could practicably further his conservative agenda, that is exactly what he did. He took the narrowest possible view of Brown and of civil rights generally and actively undercut the enforcement of the civil rights laws. This may not qualify as "dismantling" those laws, but it cuts uncomfortably close.

Rehnquist's Supposed Moderation Was Only an Example of Smart Strategy

Those who trumpet Rehnquist's shift towards the center, invariably point to his opinion in Dickerson v. United States, re-affirming Miranda. But this just proves the depth and nuance of Rehnquist's strategic thinking.

Rehnquist hated Miranda. But he also knew that he had at most 3 votes (including his own) to overturn it. So rather than letting Justice John Paul Stevens (the next most senior justice to Rehnquist) write a resounding re-affirmation of Miranda, Rehnquist took the opinion for himself -- and wrote an exceedingly tepid re-affirmance of an old precedent that Rehnquist had already succeeded in substantially weakening. Once again, he cannily saw the limits of what he could accomplish, and pushed them as far as he could - and no further.

Thus, Rehnquist is better described not as having moderated his views, but as having maximized his conservative achievements through a realistic assessment of Court politics.

The "States Rights" Chief Justice Actually Honored Federal Statutes If He Agreed with the Policies they Embodied

Rehnquist's alleged devotion to majority rule and to the Court's institutional legitimacy are also difficult to reconcile with his record - and one need look no further than Rosen's own narrative to prove the point.

As Rosen correctly observes, Rehnquist's commitment to states' rights and federalism - the central themes of his jurisprudence - put him directly at odds with the principle of majority rule. In one seven-year period alone, the Rehnquist Court - with the Chief pushing the agenda - invalidated more than 30 Acts of Congress. No other Court in history overruled the will of the people's elected representatives at as high a rate.

Rosen acknowledges this point, but treats it more as aberration than the norm. I would say, however, that this cavalier treatment of legislative judgments was neither aberrational nor the norm. Rather, Rehnquist had a pattern of picking and choosing -- based on not the legal but the political merits -- which statutes he would honor, and which he would deem unconstitutional.

When legislative judgments were consistent with Rehnquist's view of the world (as, for example, with the death penalty), he tended to defer to them. But when Rehnquist's own strongly-held views clashed with legislative enactments (as in the area of states' rights), he showed no hesitation about striking them down.

This inconsistency naturally gives rise to the concern that Rehnquist's legal opinions were driven more by his own policy preferences, than by legal principles. And for those, like Rosen, who want to portray Rehnquist as a guardian of the Court's integrity and virtue, this is an important concern to address. After all, the Court's legitimacy depends, most of all, on the idea that law is different from politics, and that the justices - unelected and life-tenured -- base their opinions on something other than their own personal views.

Unfortunately, Rehnquist's record of opinions gives his advocates little to point to. Especially once he became Chief Justice, Rehnquist basically abandoned the idea of writing deeply reasoned opinions, in favor of a style that boiled down to "it-is-so-because-I-(and four others)-say-so."

The problem with this stance is that the Court's only currency - the proof of its legitimacy - is the reasoning in its opinions and, through that reasoning, the articulation of the line between law and politics. To abandon a commitment to this, is to abandon something indispensable. And while Rehnquist can rightly be praised as someone who cared passionately about the Court on which he served for so long, his actions as a justice too often tended to disserve the institution he so ardently sought to champion.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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