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February 24, 2005

The Rehnquist Legacy

Richard Garnett writes movingly of William Rehnquist's tenure as Chief Justice:

...Walter Dellinger, a respected scholar and former acting solicitor general for President Bill Clinton, called Rehnquist one of "three dominant chief justices of American history." The others are John Marshall, the first chief justice who transformed the Supreme Court's role and interpreted the Constitution to unify the new nation, and Earl Warren, who committed the federal courts to protecting individual rights by expanding their power over state and local officials. What has Rehnquist done to gain admission to this select group?

He cites several instances where Rehnquist's influence has changed the course of modern jurisprudence:

Rehnquist has significantly reshaped and reformed our constitutional law. Take, for example, the area of religious freedom. Throughout the 1970s, the court's interpretation of the Establishment Clause, which was designed to protect religious liberty by limiting government power, tended instead to be almost faith-phobic. In cases involving state aid to children in religious schools, several of the justices were often distracted by a suspicion of parochial education and by what Rehnquist correctly called "Jefferson's misleading metaphor" of a "wall of separation" between church and state. Yet over the years Rehnquist has guided the court toward a more balanced position that calls for government neutrality, not hostility, toward religious choices, institutions, and activities. These efforts paid off in Zelman v. Simmons-Harris, the 2002 decision in which a majority led by Rehnquist upheld Cleveland's school voucher program, which includes religious schools. As Rehnquist recognized, Cleveland's experiment is an evenhanded effort to expand opportunities for low-income kids, not a first step toward theocracy.
A picture begins to emerge: a careful, patient guiding of the Court, always with the future in mind:
He has dramatically "shifted the center of the discussion," as Duke law professor Jefferson Powell put it. According to Powell, Rehnquist "took the long view, and he has won." Time and again—for example, in cases involving the Fourth Amendment's ban on unreasonable searches and seizures, or the appropriate balance between local control and federal power—seeds that Rehnquist planted decades ago in solitary and provocative dissents have taken root and flowered. As Walter Dellinger observed, Rehnquist's achievement is to have pushed into the mainstream once idiosyncratic views of state sovereignty and limited federal power.

Garnett sums up Rehnquist's philosophy thusly:

...two pithy statements ...go a long way toward capturing Rehnquist's judicial philosophy and legacy. "We start with first principles," he wrote in United States v. Lopez, the court's 1995 ruling that Congress lacks the power to make it a crime to bring a gun within 1,000 feet of a school. "The Constitution creates a Federal Government of enumerated powers." There it is, short and sweet: We the People have authorized our federal courts, legislators, and administrators to do many things—but not everything. Because the nation's powers are, in James Madison's words, "few and defined," Congress may not pursue every good idea or smart policy. The point of this arrangement, Rehnquist reminded us, was not to hamstring good government or throw up roadblocks to democracy, but to "ensure protection of our fundamental liberties."
There is also this from Rehnquist's dissent in Texas v. Johnson, the flag-burning case: "The Court's role as the final expositor of the Constitution is well established, but its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government." This rebuke eloquently states Rehnquist's view of the function of judges and engages the primary argument of his contemporary critics. Prominent legal scholars like Yale's Jack Balkin and Stanford's Larry Kramer often charge that Rehnquist's calls for judges to act with restraint, humility, and deference are little more than disingenuous cover for his conservative activism. Rehnquist and his allies, the argument goes, have embraced judicial supremacy while professing judicial restraint, and have proved far more willing than their liberal predecessors to invalidate measures like the gun-control law at issue in Lopez.

This line of attack is misguided, though, and misses Rehnquist's point. Put aside that many of the critics who cry "judicial supremacy!" when the court limits Congressional power in the name of federalism go quiet when it strikes down pornography regulations in the name of freedom. In Rehnquist's view, even an appropriately restrained judge is not a rubber stamp for the legislature. It is neither arrogant nor illegitimate for judges to enforce strictly the Constitution's textual limits on federal power and the boundaries it sets between the different branches of government. This kind of judging is not antidemocratic. It does not end public debate on difficult questions or substitute judges' policy preferences for those of We the People.

A good read for those seeking to understand the role of Chief Justice and curious about where the Court will go under new leadership.

Posted by Cassandra at February 24, 2005 09:35 AM

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