The Legacy of Supreme Court Justice William Rehnquist

On 3 September 2005, Supreme Court Justice William Hobbs Rehnquist succumbed to thyroid cancer, thus ending one of the longest and the most influential terms on the bench.

President Nixon appointed four members of the US Supreme Court. His most influential, and last, nominee was Rehnquist, who was nominated in 1971 when there were two open seats. A "relatively obscure" assistant attorney general, Rehnquist was championed by John Dean (he of Watergate fame).

The Nixon Whitehouse had also talked with then Sen. Howard Baker (R-TN), but according to Dean, Baker didn't act quickly enough. Then in 1986, President Reagan made Rehnquist the 16th Chief Justice of the United States.

Politically, the conservative Rehnquist was a Goldwater Republican. In those first 15 years, he often wrote solo dissents. His earlier passions focused on federalism (limiting Congressional power or strengthening state powers) and expression of religion (arguing that "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 also voted consistently in support of the death penalty and in opposition to gay rights, rulings which surprised few. In fact, the New York Times reports that in 1976, the Harvard Law Review published a "preliminary" appraisal of Rehnquist which identified three themes:

• ... conflicts between the individual and the government should be resolved against the individual; conflicts between state and federal authority should be resolved in favor of the states; and questions of the exercise of federal jurisdiction should be resolved against such exercise. The 1976 article was often cited in later years because it proved to be such a reliable roadmap to the Rehnquist judicial philosophy.

As time passed, and other conservative Republican Presidents made inroads into Court composition (notably, Reagan), Rehnquist's views moved from minority to majority. Some argue that after becoming Chief Justice, he would strategically vote with the majority in order to write the decision.

Rehnquist is also praised for his administrative acumen. Among the responsibilities of a Chief Justice are assigning who will write majority decisions; managing the docket; and supervising about 300 court employees. Former clerk Jay Jorgensen tells CNN:

• [Rehnquist] set up a system during conferences where every justice, one by one, in order of seniority, is allowed to weigh in on a case... There is no free-for-all debate. The chief justice does not allow bickering. He shuts it down.

To lay Americans, he may best be remembered for the 2000 Presidential election decision (5-4) that stopped the Florida re-count and launched George W. Bush into the White House. He was the second Chief Justice to preside over Presidential impeachment hearings.

Opinions and Cases of Note

• 1952: Plessy v. Ferguson (1896)
  In this 1896 case, the Supreme Court ruled that Louisiana could prosecute Homer Plessy for refusing to sit in the "colored" section of a train. The decision solidified the idea of "separate but equal" for more than half a century, when it was overturned in 1954 by Brown v. the Board of Education.

• Rehnquist was a law clerk for Justice Robert H. Jackson when he penned "A Random Thought on the Segregation Cases" in 1952:
  • Rehnquist's memo unambiguously stated that "Plessy vs. Ferguson was right and should be reaffirmed." It acknowledged that this "is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues." But in its key passage, it insisted that "one hundred and fifty years of attempts on the part of this court to protect minority rights of any kind -- whether those of business, slaveholders, or Jehovah's Witnesses -- have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men. 

• 1973 : Roe v. Wade
  Rehnquist wrote the dissent, where he noted: "I have difficulty in concluding, as the Court does, that the right of 'privacy' is involved in this case."
• 1976 : National League of Cities v. Usery
  Rehnquist wrote the majority opinion, which invalided federal minimum wage requirements for local and state government employees; overturned in 1985 in Garcia v. San Antonio Transit. This case highlighted the 10th Amendment, which reserves for the states powers not explicitly enumerated elsewhere in the Constitution; this Amendment is the foundation for the state's rights movement.
• 1985 : Wallace v. Jaffree
  This court decision invalided an Alabama law providing a moment for silent prayer in public schools. Rehnquist dissented, contending that the belief that the founders intended to erect a "wall of separation" between church and state was misguided.
• 1989 : Texas v Johnson
  This case found flag-burning to be a protected form of political speech under the First Amendment. Rehnquist wrote one of two dissents in this 5-4 decision, saying that the flag is "the visible symbol embodying our Nation" ... "not simply another 'idea' or 'point of view' competing in the marketplace of ideas."
• 1992 : Planned Parenthood v. Casey
  Although he wrote one of two dissents in Roe v. Wade, in this Pennsylvania case he was not so alone, although the constitutional right to an abortion was upheld 5-4.
• 1995 : United States v. Lopez 
  Rehnquist wrote the majority opinion in this case, which declared unconstitional the Gun Free School Zones Act of 1990; the Act gave schools a 1,000-foot "gun-free" perimeter. Rehnquist's ruling states that Congress can only regulate commerce: its channels and instruments as well as substantive actions. His argument, that if the government could regulate guns in schools as though they were commerce, is errily like Sandra Day O'Connor's 2005 remarks on Kelo v. New London: "Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory."

• 2005: Kelo v New London
  In this controversial 5-4 decision, the Court expanded the power of the Fifth Amendment, saying that local governments may "take" property for private (no long just public) use because, in this case, there was a plan which promises jobs and revenue (tax income). Sandra Day O'Connor wrote for the minority, which included Rehnquist:
  • Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded--i.e., given to an owner who will use it in a way that the legislature deems more beneficial to the public--in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings "for public use" is to wash out any distinction between private and public use of property--and thereby effectively to delete the words "for public use" from the Takings Clause of the Fifth Amendment.