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The Supreme Court Without Rehnquist?
The Difference He Has Made, and What the Court Might Look Like Without Him

Thursday, Nov. 04, 2004

Recently, the Supreme Court made a saddening announcement: Chief Justice William Rehnquist is battling thyroid cancer. The news came as a surprise in the midst of an intense presidential campaign.

Rehnquist plans to get back to work as soon as he can, but this very serious illness underlines the chance that he - and/or other Justices - may leave the Court over the next four years, with President Bush nominating a successor, or successors. That is a tremendous responsibility.

It will be hard to fill the Chief's shoes. It is standard classroom fare, among liberal law professors, to claim that Rehnquist is an ideologue -- or worse, in their eyes, a "conservative ideologue."

In fact, as I will argue in this column, the truth is that Rehnquist has been an outstanding Chief Justice.

Rehnquist's History: More Than Three Decades on the Court

William Rehnquist joined the Court, as an Associate Justice, in 1971 - nominated by President Nixon. In 1986, President Reagan elevated Rehnquist to be Chief Justice.

For a number of years, Rehnquist was an outlier on the Court on many issues--especially federalism and the free exercise of religion. He proved himself to be tenacious, smart, and extremely well-educated -- with the kind of tough-minded common sense they breed in the West.

Rehnquist held true to his positions, despite public pressure to alter them, and undeserved condescension from the academy - which confused principled consistency with partisan ideology when it came to evaluating Rehnquist. Finally, when elevated to the Chief Justice position, he had the opportunity to lead a majority that recognized these positions as the best reading of the Constitution.

Rehnquist's Key Issue: Federalism and The Limits of Congressional Power

On issues of federalism, Rehnquist saw, from the beginning of his tenure, that Congress had usurped power - believing its powers, specifically enumerated in the Constitution, were somehow unlimited and unquestionable. Many law school professors, unfortunately, abetted the view that Congress's power was limitless.

But Rehnquist exhibited a steadfast devotion to the notion that there must be some limit on Congressional power, else there would be no province for the States at all. He expressed this view, first, in dissent after dissent - and finally, during the 90s, his dissenting views became majority views.

This was a welcome evolution of federalism doctrine. Now, Congress at least asks itself what the constitutional source of its authority is - if any -- before it legislates.

This doctrinal evolution, as I explain in a previous column, was no revolution: It merely returned constitutional doctrine to its authentic origins. Congress is a body of enumerated, not plenary, power: The Constitution says as much, but until Rehnquist came to power, and other Justices like Justices Sandra Day O'Connor and Antonin Scalia joined the Court, the Court had simply ignored what the Constitution had to say on this central topic.

Another Key Rehnquist Issue: The Free Exercise of Religion

I admire most, though, Rehnquist's position on the free exercise of religion. I used to believe religious groups should win virtually any Free Exercise claim - as did, and do, the vast majority of legal academics and religious organizations. Accordingly, I used to support the Court's cases imposing strict scrutiny on laws affecting Free Exercise. But no longer: I have come around to Rehnquist's point of view, which is more closely in accord with the Constitution, its history, and Supreme Court precedent.

Rehnquist argues cogently that if Free Exercise rights are virtually absolute, then religious entities are relieved of having to abide by civil and criminal laws: those crucial laws that protect individuals and society from harm. He has convincingly urged that just because an action is religiously motivated, does not make it consequence-free for society, and should not make it consequence-free, under society's laws.

Rehnquist joined Employment Div. v. Smith, which vindicated the principle he had been stating for years that religious motivation was no defense to a generally applicable, neutral law. Smith was the watershed case that held that Native American Church members who used peyote during their religious services could be fired by a state drug treatment facility and denied unemployment compensation. The ruling echoed the principle clear from a century of cases, but articulated it more clearly than ever: while religious belief is absolutely protected, religious conduct is as subject to the rule of law as any other conduct. Whatever the reason, conduct is conduct, and illegal conduct crosses the line drawn by the legislature. Therefore, the Constitution provides no right to avoid the law.

Rehnquist has applied the cardinal principle for conservatives in the free exercise context: the law is to be made by the legislature and "activist" judges are not equipped to decide the law by themselves. The rule in Smith, despite is unpopularity among some conservative religious organizations, reflects that principle precisely. Legislatures decide whether religious entities should receive exemptions from the law--because they are the branch most equipped to determine whether the exemption is consistent with the public good. The alternative is to have federal judges decide unilaterally when and to whom the law will apply, which in turn, almost always turns the decision away from the larger public good and, worse, away from the crucial issue of who will be hurt by the exemption. The result is an unbalanced discussion of what the religious entity needs, regardless of others. That is a subversion of this republican form of democracy, and Rehnquist saw this long before many others did.

Last Term, in Locke v. Davey, Rehnquist wrote for the Court in another important Free Exercise case. There, the issue was whether a state had to fund scholarships for a student studying to be clergy, if it was funding scholarships for all other majors.

Writing for the Court, Rehnquist held that Establishment Clause values in the states permitted some "play in the joints" -- so that they could refuse to fund ministerial education. The opinion not only offered a wise resolution to the issue before it, but also provided an adept summary - and clarification -- of Free Exercise jurisprudence over the decades.

Rehnquist has a special ability to pack a great deal of content into relatively short opinions. In Locke, he is at his finest - providing a concise, yet comprehensive theory of the Free Exercise Clause. Here it is, in a nutshell: First, individual rights must sometimes give way to Establishment Clause concerns. Second, all conduct is subject to generally applicable, neutral laws, even if those laws use religion as a category. Third, and finally, only laws that evidence hostility or animus toward religious conduct ought to be treated as "presumptively unconstitutional" - that is, subjected to strict scrutiny, and virtually always struck down.

Importantly, it is Rehnquist's wise leadership on the Free Exercise Clause that has given clergy abuse victims a shot at justice and redress in the thousands of lawsuits now pending. Because of his cogent and persistent reasoning, churches will not be able to resist general laws with which all others must comply - such as the laws permitting broad civil discovery, requiring the reporting of child abuse, providing damages for tortuous actions, organizing bankruptcies, and punishing actions that amount to obstruction of justice, or aiding and abetting.

Corruption at a church that allowed children to be abused can, on Rehnquist's theory, be punished just as the same kind of corruption at a secular day care center can be. And that is - legally and morally - the right answer.

Rehnquist An "Ideologue"? "Moderate" Is a More Accurate Term

The press and the liberal legal academy have endlessly caricatured Rehnquist's views - painting him as extremely conservative. In truth, he has often been a force from the middle as he has led the Supreme Court as Chief Justice. No longer the young upstart at the Court, he quickly stepped up to being a Chief that looked for ways to bring the members together.

Rehnquist's record puts the lie to the claim that he votes as a knee-jerk conservative. Recently, he wrote the opinion in Nevada Dept. of Human Resources v. Hibbs, which upheld the constitutionality of the Family Medical Leave Act - despite what some, but not the Chief, thought was Congressional overreaching. Even more recently, he joined his more liberal colleagues in the majority in several of last Term's headline cases.

In Hamdi v. Rumsfield, Rehnquist joined the other majority Justices in holding the United States could not hold an "enemy combatant" without affording him due process before a neutral decisionmaker. And in Cheney v. U.S. Dist. Ct for Dist. Columbia, Rehnquist joined the other majority Justices in holding that the federal courts must tread carefully in mandamus actions involving the issuance of subpoenas for materials encroaching on the Executive Branch, in a case involving a request for the records of the National Energy Policy Development Group, chaired by Vice President Cheney.

Rehnquist's Personality: Conducive to Adept Leadership

In addition to acting as a moderating force in his Chief Justice role, Rehnquist has been probably the most successful Chief in history, in terms of running the work of the Court with efficiency and dispatch.

The loss to the Court if Rehnquist must step down will also be a tremendous personal loss. He is one of the nicest men you will ever meet - with a love of history, a great sense of humor, and a love of tennis, which serve to humanize his imposing presence.

The Chief has had a tradition of taking each of the other Justices' clerks to lunch during their clerkship. In 1990, as a law clerk for Justice Sandra Day O'Connor I had the good fortune to be able to attend such a lunch. It was a thoroughly enjoyable time, with a man who is not only tremendously smart but just plain nice.

In sum, the Rehnquist-bashers need to think twice before they try to argue he is not a model to follow. I think he is.

President Bush will face a difficult task in replacing Chief Justice Rehnquist, if and when he must. There may be a temptation within the Republican Party, with its power in the White House and both Houses of Congress, to go with a nominee who is a "true conservative." One can only hope that means a Justice like Rehnquist.

Marci Hamilton is a Visiting Scholar at the Princeton Theological Seminary during fall 2004. She is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state and other constitutional issues can be found on this site. Her email is

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