History’s Justice

What Rehnquist didn’t do.

Chief Justice Rehnquist

William H. Rehnquist died last night after a yearlong struggle with thyroid cancer. And he went out exactly as I imagine he’d have wanted to—as chief justice of the United States. Despite his age (80), the seriousness of his illness, and unspoken pressure to retire so as to ease the White House’s confirmation woes, Rehnquist stubbornly refused to step down all summer. My own guess is that all those forces probably conspired to keep him at his post even longer: Rehnquist was not a man to succumb to pressures—political, social, or otherwise.

You’ll read a good deal today about what Rehnquist did: He led the court’s rightward zag away from the feel-good zig of the Warren Court and back to doctrinal rigor. He morphed from the bitter and caustic “Lone Ranger” to the triumphant sherpa of the federalism revolution. He breathed new life into the 10th and 11th Amendments and elevated the primacy of states’ rights to a holy grail. He used his administrative position at the court to enforce new rules that elevated efficiency and mutual respect over egos and debate. He put eight gold bars on the sleeves of his judicial robes. And he died with his political views largely unchanged since college.

But what you may not hear much about today is what Rehnquist didn’t do. And it seems to me that with a man like Rehnquist, that’s a useful place to start.

Rehnquist was appointed by Richard Nixon to the Supreme Court as an associate justice in 1971 and elevated to chief justice by Ronald Reagan in 1986. Those hearings were marked by accusations that the young Rehnquist had authored a memo, while clerking for Justice Robert Jackson in 1952, advocating for the constitutionality of segregation. He was similarly charged with having intimidated black voters at polling places in Arizona in the 1960s. What Rehnquist didn’t do in response to those charges was what Clarence Thomas did: He didn’t become bitter, or reclusive, or vengeful. Rehnquist denied them, then moved on, and—for the most part—the public did too.

Rehnquist’s early writings could have melted paint. In 1973, when he and Byron White were the only dissenters in Roe v. Wade, his language was uncompromising: “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” But as Rehnquist rose to chief and saw his pet causes—including federalism, strict adherence to the views of the framers, and judicial restraint—shift from marginal theory to the court’s polestars, he didn’t do what Antonin Scalia has done: He didn’t keep using his writing as a showcase for his own brilliant, persuasive ideas. Indeed his opinions became increasingly anorexic—thinner and pale. He had no need to shame his colleagues or flaunt his genius. He saw that he had won his wars and moved on.

Then there were the conservative votes Rehnquist never cast: He didn’t vote with the other conservatives to get rid of the Miranda warning in 1999—even though the 1966 holding that ushered in the warning was the sort of Warren Court overreaching that would have sent him into orbit as a younger man. He didn’t vote with the conservative bloc in Nevada Department of Human Resources v. Hibbs—the 2003 case reasserting Congress’ power to apply the Family Medical Leave Act to state governments—even though he was the charter member of the so-called Federalism Five (the group of justices who did away with Congress’ Gun Free School Zones Act and the Violence Against Women Act because they violated his core doctrine of states rights). The Hibbs vote was largely seen as tactical—most court watchers agreed that Rehnquist switched his vote (he’d have been on the losing side of a 5-4 decision anyhow) so he could author the opinion himself and thus narrow it to create a precedent he could live with.

The Miranda decision was in part about public expectations and the appearance of stability on the court: As he wrote: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” But even more centrally, his decision about Miranda was about the primacy of the court over Congress: “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves.”

No one will ever accuse Rehnquist of having been a liberal, or even a moderate. But, as Walter Dellinger points out today, time and again, in cases that implicated the supremacy of the judicial branch—cases that suggested that states or Congress might have the last word—Rehnquist was willing to part with his ideological buddies to promote a higher value than intellectual purity: the court itself.

Something else Rehnquist was not: He was not an Earl Warren. He did not expect or demand that the changes he sought would come with sudden, dramatic moves. He was the gentlest of constitutional chiropractors and—with the exception of Bush v. Gore—you rarely heard a crack or a snap over his tenure. Rehnquist didn’t cajole his colleagues into unanimity and rarely used his assignment powers as strategically as his predecessors had. Indeed, he was notoriously fair about assigning cases. Rehnquist also refused to let the work of the court continue to grow exponentially. Where the Burger Court used to hear argument in 160 or so cases each year, the Rehnquist Court heard closer to 80. Rehnquist’s style was to nudge the law back to the right slowly and inexorably, on issues ranging from civil rights to habeas corpus, from school busing to religion in public life. But he didn’t throw constitutional bombs, and as a result his Supreme Court, as “activist” as the Warren Court by every possible measure, was not reviled and feared so much as respected and ignored.

What Rehnquist also refused to do was to jump on the judge-bashing bandwagon, even when he might have agreed with the tenor of the criticisms. Unlike his former law clerk John Roberts, with whom his views are otherwise remarkably congruent, Rehnquist did not tolerate expressions of contempt for the judiciary, or approve of measures to limit its powers. He used his Annual Report on the Judiciary, usually something of a snooze-fest, to castigate the Republican-led Senate for blocking Clinton’s judicial appointments and, more recently, to defend judges from attacks by right-wing demagogues. As he warned this year: “Although arguments over the federal Judiciary have always been with us, criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years. … Congress’s authority to impeach and remove judges should not extend to decisions from the bench. That principle was established nearly 200 years ago in 1805. … Any other rule would destroy judicial independence.”

And something else that Rehnquist would not do was to change. He refused to hire minority clerks, just for appearances’ sake, even when he was excoriated for it. He refused to stop leading the Christmas carols at the court’s annual holiday party, even though many questioned the appropriateness of it. He refused to relax his bordering-on-the-absurd dress code for the court’s public argument sessions. He once skipped a State of the Union address to attend an art class. And facing tremendous pressure, from nosy reporters like myself, to reveal either his prognosis or his plans, he remained defiantly private about his illness until the very end. The abiding Rehnquist legacy, both doctrinal and personal, is one of boundless confidence. He was certain of his duties as chief—restoring power to the states, cutting back perceived civil rights excesses, and upholding the dignity and the prestige of the court—and believed they gave him license to be authoritarian and even at times (I’m thinking of those gold bars now) grandiose.

Much will be made in the coming days of Rehnquist’s so-called failures, most notably his failure to roll back the Warren Court’s most sweeping rulings. Abortion, affirmative action, and gay sodomy are all legal in Rehnquist’s America. But my guess is that Rehnquist, unlike Scalia, Thomas, or the court-bashers on the far right, was pragmatic enough to recognize that those were just side battles. He had won the war. A keen observer of history, Rehnquist always knew that he was making history and not merely law. With a potent blend of minimalism and control, he built a court that was, like himself, supreme, in terms of raw, cumulative power, national prestige, and public acceptance.