Rehnquist, William H.
Significance: Presiding over a conservative shift in the Supreme Court's jurisprudence, Rehnquist participated in the overturning or undermining of many liberal precedents, even though he frequently continued to find himself on the side of the minority.
Born in Wisconsin in 1924, William H. Rehnquist proved to be a formidable presence and an intellectual force before reaching the Supreme Court. After serving as a meteorologist during World War II, he attended Stanford University Law School, where he finished first in his class, two places higher than his future Court colleague Sandra Day O’Connor. During the Supreme Court's 1952 and 1953 terms, he served as a clerk to Justice Robert H. Jackson. After his Washington experience, he began law practice in Arizona and became actively involved in Republican politics, especially during the presidential candidacy of Barry Goldwater. His Republican connections earned him a position as assistant attorney general in the administration of President Richard M. Nixon. During his tenure, he wrote legal briefs in support of Nixon's tough stand against war protesters.
Appointment to the Court
Rehnquist's loyalty to the Nixon administration was rewarded with an appointment to the Supreme Court as a replacement for the retired Justice John M. Harlan II. Rehnquist's nomination was paired with that of Lewis F. Powell, Jr., who was chosen to replace Justice Hugo L. Black. Although Powell's confirmation hearings provoked no controversy, Rehnquist was grilled by Senate Democrats. Their main weapon was a Rehnquist memo on the Brown v. Board of Education (1954) case written while he was Justice Jackson's clerk. In the memo, Rehnquist presenting arguments in favor of upholding the separate but equal doctrine established in Plessy v. Ferguson (1896). The memo suggested that school segregation, the issue decided in Brown, was constitutional. It was not entirely clear whether Rehnquist designed the memo to analyze the issues for Jackson or to suggest how Jackson should vote. In any case, Jackson joined a unanimous Court in striking down school segregation. The furor over his memo lengthened Rehnquist's confirmation, but he was able to overcome the issue and won confirmation on January 7, 1972. He then immediately established himself as the most conservative justice on the Court, consistently ruling for government against the individual in civil liberties cases and for state government against the federal government in federalism cases. In his opinions, Rehnquist focused on the misuse of judicial power and carved out a position of judicial restraint as he called for judges to forgo the use of judicial review and to defer to legislative judgments. Rehnquist took particular aim at the liberal activism of the Court under Earl Warren. He warned that judicial activism harmed the Court as a neutral institution, observing that when conservatives composed a majority on the Court they might engage in similar activism on behalf of their own beliefs. Rehnquist also disagreed with the results reached by the Warren Court. He disagreed with its decisions expanding the rights of criminal defendants. He criticized those decisions that strengthened federal power at the expense of state governments. Rehnquist also disagreed with the recognition of rights such as privacy that were not explicitly mentioned in the Constitution. Upon taking his seat on the Court, Rehnquist set an agenda of restoring tradition law in these areas and overturning the results reached by the Warren Court. Rehnquist also exhibited a keen sense of humor and the ability to mold personal relationships with even his most liberal colleagues. He maintained close friendships with Justices William J. Brennan, Jr., and William O. Douglas, with whom he had strong disagreements on legal issues. He also exhibited leadership abilities, attracting the votes of his colleagues in support of his views. This ability contributed to President Ronald Reagan's choice of Rehnquist to be chief justice.
A Decade of Dissent
During the 1970's, Rehnquist acquired a reputation as the Court's conservative conscience, earning the nickname “Lone Ranger” because of his willingness to write solo dissents in support of his views. He disagreed with a high percentage of the Court's landmark cases during that decade. Dissenting in the landmark case that recognized the right of women to have abortions, Roe v. Wade (1973), he argued that most of the states outlawed abortions at that time that the Fourteenth Amendment was created, and that there was no evidence the framers of the amendment wanted to recognize a right to reproductive privacy. He dissented in Furman v. Georgia (1972), in which the Court struck down the death penalty. He also wrote strong dissents in most proaffirmative action rulings, including Regents of the University of California v. Bakke (1978) and United Steelworkers of America v. Weber (1979). Rehnquist wrote a particularly important decision during the 1970's espousing his views on state and federal relations. In National League of Cities v. Usery (1976), he wrote for a five-member majority that struck down a federal minimum wage for certain state employees. According to Rehnquist, the federal government's intervention on the wages paid to state employees constituted a violation of state sovereignty and those decisions necessary for maintaining that sovereignty. The Tenth Amendment implicitly gave the states the power to determine its employees’ wages. The Usery decision represented his first successful attempt at turning back federal power to control state policy. His revival of the Tenth Amendment represented a major departure from the Court's consistent precedents since the New Deal. During the 1970's, Rehnquist established himself as the most doctrinaire conservative on the Court. He was a justice willing to argue his views alone and in dissent. He presented his views forcefully but was frequently unable to convince his colleagues to follow his lead. However, with the aid of new Republican justices appointed during the 1980's, Rehnquist frequently found himself in the majority and able to write his views into the law.
The Conservative Comeback
Rehnquist's most loyal ally during his second decade on the Court was his old law school colleague, Sandra Day O’Connor, appointed in 1981. Rehnquist agreed with her on such issues as state and federal relations, the rights of criminal defendants, and the abuse of the federal judicial power. It was in the area of protecting criminal defendants that Rehnquist had his greatest effect. Rehnquist authored opinions and joined others in limiting protections for criminal defendants. In Quarles v. New York (1984), he established the public safety exception to the Miranda rule. He had consistently disagreed with the Court's decision in Miranda v. Arizona (1966), which required police to notify suspects of their constitutional rights before custodial interrogations. In Quarles, the police asked Quarles about the location of his gun before warning him of his rights. When the Court upheld Quarles's conviction based partly on this evidence, Rehnquist argued that the police, in these exigent circumstances, were acting to protect the public's safety by inquiring about the location of a dangerous weapon. He also joined such opinions as Michigan v. Long (1983), California v. Ciraolo (1986), and United States v. Leon (1984), all of which took narrow interpretations of the Fourth Amendment, thus allowing greater police freedom to conduct warrantless searches. Rehnquist also joined opinions allowing for greater church and state cooperation and interaction. In Widmar v. Vincent (1981), he joined the Court in requiring universities to provide equal access to facilities to religious and secular student groups. In Lynch v. Donnelly (1984), he was part of the 5-4 majority that upheld the constitutionality of a publicly funded Christmas nativity scene, provided that the display included non-Christian symbols. However, five years later in Allegheny County v. American Civil Liberties Union Greater Pittsburgh Chapter, he was outvoted five to four when the majority found that a more pious nativity scene was unconstitutional. One of Rehnquist's major setbacks was in the area of federalism. On this issue he saw his opinion in Usery overturned in Garcia v. San Antonio Metropolitan Transit Authority (1985). With Rehnquist dissenting, the Court refused to disallow the federal government from setting a minimum wage for state and local employees. Rehnquist also occasionally found himself the lone dissenter in toher cases. In Bob Jones University v. United States (1983), for example, the Court upheld an Internal Revenue Service policy prohibiting tax exemptions to racially discriminatory schools. Rehnquist dissented, agreeing with the Reagan administration that the agency had abused its power.
Years as Chief Justice
Rehnquist's unwavering conservatism made him the first choice of the Reagan administration to replace Chief Justice Warren E. Burger after the latter's retirement in 1986. Rehnquist was nominated to be chief justice and Antonin Scalia was nominated to fill Rehnquist's vacancy as associate justice. Once again Rehnquist faced tough questioning from Senate Democrats, but the Senate's Republican majority easily confirmed him. From the 1980's, Chief Justice Rehnquist was increasingly, but not always, able to gain majorities in favor of his conservative views on the law. In Webster v. Reproductive Health Services (1989), for example, Rehnquist and his four allies upheld a Missouri ban on abortions in state hospitals, as well as other limitations. Many informed observers believed that the right to abortion would likely be overturned. However, surprisingly, in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), a 5-4 majority upheld the basic principles of Roe v. Wade, and with Bill Clinton, a Democratic president, in power, it appeared clear that Rehnquist would be unable to achieve his longstanding goal of overturning the precedent. Although Rehnquist was willing to acknowledge a person's right to die by refusing unwanted medical attention in Cruzan v. Missouri (1990), he did his best to contain the expansion of these “liberty interests.” In Washington v. Glucksberg (1997), he wrote for the Court denying the existence of a constitutional right to physician-assisted suicide. The Glucksberg decision reflected his refusal to expand the right of privacy based on the substantive due process doctrine. In Lawrence v. Texas (2003), as expected, he dissented from the Court's ruling that states may not punish consenting adults for homosexual acts in a private home. Federalism was always one of Rehnquist's major concerns. In United States v. Lopez (1995), Rehnquist spoke for the Court in striking down a federal law prohibiting guns at public schools. According to the chief justice, the law exceeded Congress's power to regulate interstate commerce because gun possession was not considered commerce. Lopez strengthened state government control over such local issues as education. In Seminole Tribe v. Florida (1996), he restored the states’ right to sovereign immunity under the Eleventh Amendment, so that they could not be sued without their consent. Likewise, In Printz v. United States (1997), Rehnquist joined the Court's opinion in striking down a federal requirement that local sheriffs conduct background checks before all gun purchases. The Court ruled that the federal government could not require state law-enforcement officials to enforce federal law. Rehnquist placed a high value on private property and wanted to put definite limits on use of the takings clause. In Dolan v. City of Tigard (1994), he wrote the majority opinion that struck down a city requirement that a business cede 10 percent of its property in exchange for receiving a building permit. According to Rehnquist, such a requirement constituted a taking of property without compensation, a violation of the Fifth Amendment. In one of the last major cases of his era, Kelo v. City of New London (2005), Rehnquist joined the four-member minority that opposed the use of the eminent domain power to transfer property to a private agency for the purpose of economic development. In interpreting the equal protection clause of the Fourteenth Amendment, Rehnquist's mature view was that government must not treat people differently because of race. Hostile to positive government acts to promote integration, he was almost always on the side of those who opposed court-ordered busing for the purpose of racial balance. Likewise, he was a strong opponent of almost all racial preferences in affirmative action programs. Having written a strong dissent opposing preferences in Regents of the University of California v. Bakke (1978), he expressed the same viewpoint when dissenting in Grutter v. Bollinger (2003). Rehnquist appeared to assume that it was in society's interest to interpret the constitutional rights of criminal defendants narrowly. He disliked multiple appeals and long delays in executing convicted murderers. In the case of Herrera v. Collins (1993), he wrote for the majority that the claim of innocence did not provide grounds for granting habeas corpus relief. He also remained a determined critic of the exclusionary rule except in especially egregious cases. In Florida v. Bostick (1991), for example, he joined the Court's opinion allowing warrantless searches of bus passengers for drugs, a ruling that narrowly definced the concept of an unreasonable search and seizure. In 2000, with the Court's more conservative majority, it appeared that the majority of justices were poised to overturn the requirement that police give Miranda warnings to criminal suspects. Surprisingly, however, Rehnquist wrote for the majority in Dickinson v. United States, declaring that it would be mistake to reverse a practice that had become so accepted by the general public. In 1999, after the House of Representatives impeached President Bill Clinton, Rehnquist became the second chief justice in history to preside over a Senate trial that determined whether a president would be removed from office. Most observers agreed that Rehnquist conducted the proceedings with dignity and in an even-handed manner. During the following year, however, he received harsh criticism for his central role in Bush v. Gore, when he joined with four other justices to stop the recount of presidential ballots in Florida, thereby ensuring that George W. Bush would be the next president. Rehnquist's activism in the controversy was widely perceived as being influenced by either ideology or partisan bias. Critics emphasized that the ruling in Bush v. Gore was inconsistent with Rehnquist's usual hesitance to expand the equal protection clause and his long-standing deference to the sovereignty of the states. In October, 2004, it was announced that Rehnquist had been diagnosed with thyroid cancer. Despite his weakened condition, he was able to appear briefly at President Bush's second inauguration to administer the oath of office. Rehnquist continued to participate in many deliberations and decisions, even though he was forced to miss forty-four oral arguments. On September 3, 2005, he died in his home at Arlington, Virginia. During his long career on the Supreme Court, Rehnquist maintained a consistently conservative vision of the law. Working with his allies on the Court, in particular Justices Antonin Scalia and Clarence Thomas, he had a degree of success in promoting his agenda, especially in the areas of federalism, the establishment clause, court-ordered busing, and the rights of criminal defendants. However, from Rehnquist's perspective, the balance between liberals and conservatives continued to be precarious, and during his last few years he continued to find himself with the minority in key decisions on abortion, affirmative action, and homosexual rights. Almost all scholars agree, nevertheless, that Rehnquist was one of the most influential justices to serve on the Court during the modern period.
- Bradley, Craig, ed. The Rehnquist Legacy. Cambridge, England: Cambridge University Press, 2006. Scholarly collection of essays on Rehnquist's tenure as chief justice.
- Friedelbaum, Stanley. The Rehnquist Court: In Pursuit of Judicial Conservatism. Westport, Conn.: Greenwood Press, 1994. Emphasizes the conservative direction of the Court under Rehnquist's leadership.
- Hensley, Thomas R. The Rehnquist Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC-Clio, 2006. Comprehensive reference handbook on Rehnquist's tenure as chief justice.
- Irons, Peter. Brennan v. Rehnquist: The Battle for the Constitution. New York: Alfred A. Knopf, 1994. Fascinating comparative study of Rehnquist's and William J. Brennan's opposing ideologies and strategies, written from a liberal perspective.
- Lazarus, Edward. Closed Chambers. New York: Penguin Books, 1999. Insider's view of the Rehnquist Court and its decision-making processes.
- Rehnquist, William H. Supreme Court. New York: Barnes & Noble, 2005. Contains first-hand information about Rehnquist's experiences on the Court as well as his views on the Court's history.
- Schwartz, Herman, ed. The Rehnquist Court: Judicial Activism on the Right. New York: Hill & Wang, 2005. Collection of interesting discussions on many topics from a variety of viewpoints.
- Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005. Argues that the differences between the modern conservative justices and the traditional conservatives made it impossible for Rehnquist to accomplish all he wanted.