September 6, 2005

September 6, 2005 | Commentary on Legal Issues

CEO of the Court

If Richard Nixon, who appointed William Rehnquist to the Supreme Court, or Ronald Reagan, who elevated him to chief justice, were alive today, they'd have to congratulate themselves on a job well done.

David Souter and Anthony Kennedy have listed leftward -- dramatically so at times. Sandra Day O'Connor, for whom the right had even higher hopes when she joined the court 24 years ago, was all over the board ideologically. Earl Warren, Harry Blackmun, William Brennan and John Paul Stevens also disappointed their conservative benefactors. But Rehnquist, who has died at the age of 80, delivered the goods as advertised.

Bruce Shapiro went only a little overboard in the liberal magazine The Nation, when he wrote, "William Rehnquist is in many crucial ways the judicial godfather of the Bush administration and today's Republican right. Even more than that of Ronald Reagan, Rehnquist's biography is a road map to the fundamental ideological divides of the past half-century, and it is Rehnquist who more than any other individual, erected … the legal scaffolding around which the Bush administration has built its domestic politics and foreign policy."

Shapiro points to increased police powers, challenges to election law and general hostility to federal regulation of industry. And all of that is true. Previous courts held that evidence gained by unconstitutional police techniques was "fruit of the poison tree" and inadmissible at trial. Rehnquist's court has held that such evidence can be used if police acted in good faith. He also forged a conservative bloc to roll back habeas corpus appeals -- or objections to court decisions -- particularly in death-penalty cases. He refused to inject the court into appeals against gerrymandering in Texas and elsewhere. And he has fought for private-property concerns over those of green activists in challenges to the Endangered Species Act and elsewhere.

He's been a conservative man as well as a conservative judge. His management style of the court has earned him the nickname "the court's first CEO." Under Rehnquist, the court went from considering 150-170 cases per year to fewer than 80. He sometimes he switched votes so he could assign himself the task of writing the governing majority opinion and then make the language of that opinion more moderate. He enforced strict deadlines on justice's opinions and strict time limits on oral arguments.

He is seen now as something of a counterweight to the court's conservative firebrands -- Antonin Scalia and Clarence Thomas. But it was not always so. To this day, in his chambers sits a stuffed doll of the Lone Ranger, given to him by clerks early in his tenure for his tendency to stand alone in defense of his beliefs.

An unfailingly gracious and modest man, he did things his own way. Supreme Court judges traditionally have four clerks. He always had three, though some suspect this was to make a convenient doubles game in his beloved tennis. He played competitively until he was diagnosed with thyroid cancer and was known as a player who hated to lose. While most justices decide cases after pouring over briefs, he preferred to discuss cases on long walks with his clerks.

Shapiro was right about one thing: Rehnquist came to the court determined to re-open and reshape the debate over the relationship between the federal government and the states. In 1971, Democrats controlled both houses of Congress. The Supreme Court was pliant, if not acquiescent, in promoting the notion that, as Joseph Hoffman, who clerked for Rehnquist in the mid-'80s and now teaches at the Indiana University School of Law, put it: "We were a society governed by the federal government, and the states basically could do only what the federal government allowed them to do."

He took lustily to that debate with some success. In the court's first 75 years, it never struck down a law. And the court he joined had never, in 40 years, offered the slightest objection to Congress' gargantuan power grab, which began with the New Deal and continued unabated until the Reagan revolution. But Rehnquist's court struck down more than three dozen.

Even his courageous battle against thyroid cancer didn't shake Rehnquist's conservative underpinnings nor impair his thinking. But by the end of the 2005 term, attorneys arguing before the justices took to wearing bow ties in honor of the perceived new sheriff in town -- Justice John Paul Stevens.

The Gonzalez v. Raich medical marijuana case, which extolled federal power over state power; the leftward turn on property rights reflected in the Kelo v. City of New London case; the "batch of decisions" overturning the death penalty for juveniles and other prisoners and the dismantling of federal sentencing guidelines all were testaments to his growing influence, Mauro and others wrote.

But because of Rehnquist, the court is a different place than it was 34 years ago. It is efficient, exact and responsible in a way it wasn't previously. His contribution was tremendous. But perhaps more importantly, it was consistent.

Paul Rosenzweig is a senior fellow in the Heritage Foundation Center for Legal and Judicial Studies and a former Justice Department lawyer.

About the Author

Paul Rosenzweig
Edwin Meese III Center for Legal and Judicial Studies

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