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Tuesday, Dec. 26, 2000

As it is the season to ring out the old and ring in the new, I pledge that this will be my last column on the Supreme Court's stunning decision to call the election for George W. Bush. As a final note, though, it seems worth observing that while the ruling closed the election campaign, it also opened the final chapter of the Chief Justiceship of William Rehnquist.

Having assured the election of George W. Bush, Rehnquist can now retire — as he has wanted to do — knowing his legacy will be in the safe hands of a conservative successor. In the aftermath of the most significant decision of Rehnquist's 14-year tenure as Chief, it is not too soon to assess what his legacy will be.

Rehnquist's "Successes"

Substantively, Rehnquist has been very successful in pushing a conservative legal agenda while effectively eradicating — or at least fatally vitiating — numerous Court precedents, and dozens of laws.

In the area of civil rights, he has cut back sharply on the enforcement of school desegregation as mandated by Brown v. Board of Education, curtailed the enforcement of minority voting rights, and dramatically narrowed the scope of affirmative action. Rehnquist presided over several other decisions narrowing the scope of landmark civil rights laws, but Congress found the decisions so extreme that it reversed them through legislation.

In the area of states' rights, a particular Rehnquist interest, the Chief has succeeded in dramatically changing the balance of power between the states and the federal government, both by cutting back on Congress's power to protect the rights of every citizen and by immunizing states from lawsuits even when they blatantly violate federal law. His Court also has watered down the power of federal courts to ensure that their state counterparts rigorously enforce the Constitution. (Ironically, though, this watering-down seems to have had no effect on the federal Supreme Court's power to tell the state Supreme Court in Florida what equal protection means).

Other Rehnquist Court achievements include streamlining the death penalty despite evidence of racial bias and deep systemic flaws in the system of capital punishment. And although Rehnquist did not succeed in his professed goal of overturning Roe v. Wade, under his leadership the Court did permit substantial new limits on abortion rights.

Changing the Court's Culture of Decisionmaking

Every Justice makes an unspoken promise to the American people. The nation grants the Justice life tenure and vests in him or her the power to determine the ultimate meaning of our Constitution and laws. In exchange, the nation exacts a pledge that the Justice will use reason and wisdom to elevate the Court's rulings above the political trade-offs that animate the decisions of the government's political branches, the legislative and the executive.

Such an approach stands in stark contrast to the Court's approach under Chief Justice Earl Warren, who recognized (as was exemplified by the Warren Court's unanimous ruling in Brown v. Board of Education) that the most important decisions called for the greatest possible consensus.

The Failure to Give Reasons

Even worse, the Court's pro-Bush majority did not see fit to provide any significant rationale for stopping the Florida recount with many votes (by the majority's own admission) still untabulated. Yet the formal giving of reasons is thought to be the essential component of judicial — as opposed to political — decisionmaking. Judges justify their power by explaining their process of decisionmaking. But not on this Chief Justice's watch.

Nowhere in the Bush v. Gore decision does the Court explain what standard it is using to find a violation of the Constitution's equal protection clause, or its theory for why federal law precludes the Florida courts from remedying this alleged violation — as would ordinarily be permitted. Nor does the Court anywhere explain how it is logical or appropriate to vindicate the equal voting rights of all citizens by guaranteeing that the votes of some citizens will not be counted at all.

Such "it-is-so-because-we-say-so" reasoning is characteristic of the Rehnquist Court and especially the Chief, who is disdainful of deeply reasoned opinions. But, again, the enterprise of the Court depends on the Justices' ability to persuade us (and one another) that their choices among competing arguments, however imperfect, represent honest attempts to decide cases in a principled way, instead of simply on the naked calculus of 5 votes beats 4.

The Rehnquist Court's Foolish Inconsistency

But worst of all is the obvious intellectual inconsistency of Tuesday's opinion, in which five Justices previously devoted to the integrity and equality of state courts cavalierly swept aside the Florida Supreme Court's interpretations of its own state's election laws — so that the majority opinion could crown the candidate they favored for President.

Hypocrisy destroys the reputation for impartiality on which our entire judicial system depends. And consistency, like the obligation to give reasons, is a hallmark of what makes the Court judicial, rather than merely political.

In short, when the Chief steps down at the end of this term or shortly thereafter, we should welcome his retirement as the silver lining in the dark cloud of this end of year — especially if President-elect Bush follows his pattern of nominating moderates, demonstrated so far in some of Bush's Cabinet appointees, when it comes to nominate a new Justice, and new Chief. Happy Holidays to all.

Edward Lazarus 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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