WASHINGTON (KRT) – When the Supreme Court issued its landmark ruling permitting abortion in 1973, it was William H. Rehnquist, the newest member writing in his first major case, who penned the most provocative dissent.

He said the court was out of line recognizing a right that wasn’t enshrined in the Constitution and arrogant for deciding an issue that should be left to the democratic process. The court’s rationale, he said, “is far more appropriate to a legislative judgment than to a judicial one.”

It was a role Rehnquist would fill often in his early years on the court: a polite but pointed critic of the court’s direction and of the constitutional basis for its decisions.

But Rehnquist’s opinions these days strike very different tones: conciliatory, cooperative and respectful of the court as an institution and its members as individuals. Now, he gives ground on principle to achieve court majorities. He sacrifices to hold coalitions together.

What accounts for the difference between the old Rehnquist and the one who died Saturday night at the age of 80 after a bout with thyroid cancer is a tale about the evolution of one of the nation’s most influential jurists.

His was a remarkable journey from firebrand minority to measured leader of the majority.

And while historians will debate whether he helped lead change or simply reflected it, Rehnquist’s path indisputably traced a larger transformation in society – from a time of burgeoning progressive legislation and expanding federal power to the modern era of judicial and political conservatism.

“When he was first on the court, he was challenging the dominant way of thinking,” said Richard Garnett, a professor at Notre Dame law school and former clerk for Rehnquist. “But when he became chief, he decided his role was different. The chief has a stewardship obligation, in his view, and is the face of the court and caretaker of the institution. That’s bound to change the way you do things.”

Rehnquist’s demeanor as chief is described by many court watchers as his principal virtue in the job. Under his leadership, the court docket has been pared and cases have been handled faster and more efficiently.

Conferences – during which the justices debate rulings – run professionally, without needless acrimony or shouting matches. And Rehnquist is deeply respected, even admired, by justices who have deep disagreements with him. Rehnquist’s authority to run the court so deftly stems in part, many say, from his cooperative nature with regard to cases.

“Liberal justices like Thurgood Marshall and Ruth Bader Ginsburg think as highly of him as someone like Clarence Thomas,” Garnett said. “I think that’s a testament to the respect he enjoys.”

Georgetown University law professor Mark Tushnet, whose most recent book analyzes the court’s time with Rehnquist as chief, said Rehnquist’s demeanor also changed as the positions he advocated became mainstream.

“They really did reshape the law in significant ways,” Tushnet said. “So, in some ways, he doesn’t need to be as hard-edged now as when he started. He has accomplished a lot, so it’s less urgent for him to be pressing hard for change.”

Any look at Rehnquist’s influence has to start with his views on federal power, and his work to reshape the assumptions that federal judges use to determine its bounds.

When Rehnquist was appointed in 1972, he joined a court that was dominated by views of expansive federal power and the belief that the justices could – and often should – assert that federal power to settle controversial social issues.

Under Chief Justices Earl Warren and Warren Burger, the court had amplified its power and that of Congress to remedy what the justices saw as social ills. Schools were desegregated by court order. Individual liberties gained new strength, as did civil rights and women’s rights.

Underneath the court decisions on those issues, though, was reasoning that some conservatives feared had only loose moorings in the Constitution – or no footing at all.

Though President Richard Nixon had already appointed three judges to the court by 1972, including Chief Justice Burger, they hadn’t proved willing to substantially curb federal power in the name of constitutional restraint.

From a Rehnquist point of view, Tushnet and others say, the court needed a jolt from strident internal opposition, someone who could articulate a new direction that was grounded in a disciplined school of constitutional thought.

In a 1975 case called Fry v. United States, Rehnquist announced to an unconvinced majority of the court that the justices had cast important doubt on the idea of states as “indestructible” with regard to the Constitution’s balance between federal and local authority.

He wrote dissenting opinions with similar language in several other cases, running up through the early 1980s.

By the time Rehnquist was elevated to chief justice in 1986, President Ronald Reagan had begun appointing other justices with similar views. Soon, the court’s direction swung dramatically toward Rehnquist’s thinking.

A pivotal decision in a 1991 case, Gregory v. Ashcroft, signaled the coming change. In that case the court turned away an attempt to use federal age discrimination protections to challenge a mandatory retirement age for judges in Missouri.

The opinion, written by close Rehnquist ally Justice Sandra Day O’Connor, included a sweeping section on the need for a restrained relationship between the federal government and states. It was described by two dissenting justices as “ignoring several areas of well-established precedent” and questioning Congress’ authority to protect individual rights at the state level.

During the 1990s, the court went on to dramatically reduce Congress’ power. Not only did the justices limit federal lawmakers’ authority, but they also curbed Congress’ ability to compel states to enforce the laws it could pass. Federal gun laws, business and environmental regulation, and anti-discrimination legislation have all seen their reach clipped during Rehnquist’s tenure.

Ultimately, the Rehnquist court struck down more acts of Congress than any high court in the nation’s history.

“This court has been very aggressive in defining the bounds of the other branches, and Congress in particular,” said Emory University law professor and court historian David Garrow. “And that has to do with Rehnquist’s vision as much as anybody’s.”


Rehnquist’s views have become doctrine in other areas as well.

His position on separation of church and state is a prime example. In a 1985 dissent, Rehnquist penned a scathing assessment of the notion that the founders intended for the state to always adopt a hostile stance toward religious influence.

“The “wall between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging,” he wrote. “It should be frankly and explicitly abandoned.”

Instead, Rehnquist said the constitution called for government to approach religious activity with a neutral stance – one that doesn’t choose favorites among religions but also doesn’t prefer non-religion over everything else.

Today, that point of view is dominant on the court and was best articulated in a 2002 ruling that upheld an effort by Cleveland public schools to provide private vouchers that parents could use for religious education.

“… The Ohio program is entirely neutral with respect to religion,” Rehnquist wrote, this time for the court majority in 2002. “It provides benefits directly to a wide spectrum of individuals. … It permits such individuals to exercise genuine choice among options public and private, secular and religious.”


Rehnquist was also key in paring down the court’s supervision of criminal procedure – both in terms of police activity and lower court action.

He led the way in halting court review of the minute details of police searches and stops, opting instead for a standard that considered the “totality of the circumstances.” The result has been fewer federal challenges to local police authority.

He frequently lamented the exhaustive federal appeals process that was afforded death row inmates. That resulted in many court rulings turning aside challenges to death sentences and inspired Congress to essentially codify Rehnquist’s position into law in 1996.

In recent years, Rehnquist’s authority over some areas has been questioned, as the court has issued surprising opinions that counter much of what he accomplished – especially with regard to states’ rights. The court recently has asserted federal authority to strike down state bans on gay sex, eliminate the death penalty for the mentally retarded and juveniles, and approve of federal prosecution for medical marijuana users in states that allow that practice.

But Marci Hamilton, a former clerk for O’Connor and law professor at the Benjamin Cardozo School of Law, Yeshiva University, said most of the “losses” were still within the framework that Rehnquist helped establish.

“His earlier views, which seemed radical at the time, have become settled doctrine,” she said.


Garnett of Notre Dame agrees.

“The conversation is so different now, largely because of him,” he said. “Even if the outcomes in cases aren’t what he would prefer, the decisions are being made according to the constraints he advocated on federal power.”

Still, there’s been some backtracking – even by Rehnquist himself. Most notably, in a 2000 case called Dickerson v. United States that reaffirmed the landmark Miranda v. Arizona decision requiring police to inform arrestees of their rights. Rehnquist voted with the majority after years of harshly criticizing the Miranda opinion.

For years, he’d insisted that Miranda wasn’t an explicit constitutional rule, but in Dickerson, he said it was.

Garrow said that contradiction is partly explained by Rehnquist’s view of the difference between the role of the chief and other justices. Dickerson upheld the court’s supremacy in interpreting the Constitution – something any chief would have to support.

“The court’s own long-term, institutional commitments came to loom significantly larger, and personal policy preferences came to loom significantly smaller,” Garrow said. “In some ways, Dickerson is the number one important Rehnquist opinion of all time, because it shows the long-time Miranda critic reaffirming Miranda for the good of the court. It’s a short-hand for the path he took during his tenure.”

(c) 2005, Knight Ridder/Tribune Information Services.


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AP-NY-09-04-05 0003EDT

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