THE CHIEF JUSTICE AND THE 1999 TERM
By DAHLIA LITHWICK
As the dust begins to settle after the recent high-octane term in the U.S. Supreme Court, a look behind the Court's jurisprudence and into the minds of its jurists is in order. One of the great surprises of the term came with Chief Justice William H. Rehnquist's vote to uphold the Miranda decision, for decades a symbol of the Warren Court's dramatic intrusion into police affairs. Furthermore, given that one of Rehnquist's principal claims to intellectual fame is the lack of change in his legal views since college, his vote to uphold a Colorado law keeping protesters eight feet away from women entering abortion clinics was nothing short of astonishing. In the first case, the conservative Chief Justice privileged a Court-made rule over the will of Congress. In the second, he privileged a Court-made right to privacy over free speech protected by the First Amendment.
One of the questions left lingering as the books close on one of the more intriguing terms in recent memory is simply: what has come over the Chief?
The "Lone Ranger"
In 1986, Rehnquist was elevated from Associate to Chief Justice, in the hope that he would drag the Reagan Revolution to the Supreme Court -- the last branch of government to resist the conservative rollback. With Justice Antonin Scalia tapped to fill the seat vacated by Rehnquist, Reagan believed he was rectifying the liberal excesses of the Warren Court. Rehnquist appealed to Reagan because in his 14 years as a frustrated Associate Justice on a court seemingly hypnotized by the renegade liberal William Brennan, he was not shy in voicing his lonely conservative outrage. Having authored 54 solitary dissents over that time, his clerks dubbed him the "Lone Ranger." More important, Rehnquist was unlikely to pull a Brennan or a Harry Blackmun -- drifting leftward after being appointed by a Republican President. Rehnquist himself admitted that his beliefs had changed little since his undergraduate days at Stanford.
Rehnquist's cardinal beliefs are in the primacy of strict construction (the notion that statutes and the Constitution are to be read with deference to the drafters, and little imposition of a judge's personal preferences); of state's rights and state sovereignty; and in judicial deference to other branches of government. He rejects the notion that the Court exists to protect minorities from majority tyranny, or that Justices must divine core principles of natural law. Yet having built his career railing against the judicial activism that led the Court to create a suspect's constitutional right to a police warning in Miranda v. Arizona, the Chief Justice did not avail himself of the opportunity to overrule Miranda this year in Dickerson v. United States.
So. What has come over the Chief?year. The term saw twenty rulings turn on a single vote -- more 5-4 decisions than the Court has produced in nearly ten years. And toward the end of the term, written dissents became angry and at times even personal. Yet despite the friction, Rehnquist, unlike Chief Justice Warren Burger before him, is credited with keeping a strong, even hand on the rudder. Judicial conferences on his watch are collegial, brief and organized. He insists that each of the nine justices must speak before anyone can speak twice. He strives to ensure that every justice gets to author at least one majority opinion from each two-week oral argument session. This style of leadership, by the way, apparently mirrors his oversight of his weekly Wednesday night poker games. It's certainly possible that what has come over the Chief is the diplomacy necessary to lead a fractious band through grumpy times.
The Center Shifts Towards Chief Justice Rehnquist
Another explanation for this new softening on the part of the Chief is his transition from "Lone Ranger" to what might almost (but not quite) be called "centrist" due to the increasingly extreme right-wing positions staked out by Justices Scalia and Clarence Thomas. Rehnquist and his poker buddy Scalia traded harsh words in several cases this term, and the man who once railed at the excesses of the left has suddenly found himself excoriated from the right.
Another explanation is that Rehnquist is a complex blend of traditionalist and renegade. Having spent a year at Harvard in 1949, obtaining a masters degree in government, he returned to Stanford Law School because he "couldn't take Harvard liberalism." Known for sporting desert boots under his black robe in the 1970's, the Chief is an avid tennis player, swimmer, painter and writer. His ability to quote literature from memory is apparently prodigious. And he once skipped a State of the Union address to attend an art class. No better illustration of the tension between his radical and traditional selves exists however, than the attention he drew by adopting four gold stripes on each sleeve of his robe, modeled after the Lord Chancellor in Gilbert and Sullivan's Iolanthe.
Herein may lie the key to Chief Justice Rehnquist's unpredictability this term. He is a conservative man, who believes fervently that the role of the Court should be limited to the space conceived by the Framers as its own. But where the Court, as it did in Miranda, creates a new space for itself, the same Chief Justice who broke with tradition to put bars on his sleeves will break with his brother Scalia, and even Congress, to shore up its right to do so. He may not believe in Court-invented rights. But he will fight to the death for the Court's right to invent them. Given that the power to create tradition, the power to determine who may set tradition, and the power to ultimately defy it is the central power of the Supreme Court itself, the Chief's steadfast support of those powers should surprise no one.