Jeffrey Rosen: Why Liberals May Miss Chief Justice Rehnquist

Jeffrey Rosen, in the Atlantic Monthly (April 2005):

[Jeffrey Rosen is a law professor at George Washington University and the legal-affairs editor of The New Republic. He profiled the former attorney general John Ashcroft for The Atlantic last April.]

In his thirty-four years on the Supreme Court, William Rehnquist participated enthusiastically in the annual Christmas party for the justices and their clerks. "He and I wrote the Christmas show the year I clerked for him, in 1975," recalls Craig M. Bradley, who now teaches law at Indiana University.

One carol that year was sung to the tune of "Angels From the Realms of Glory." It went like this: "Liberals from the realm of theory should adorn our highest bench / Though to crooks they're always chary / at police misdeeds they blench." ("The word 'blench' came from Rehnquist," Bradley says. "I didn't know it meant 'blanch.'") The members of the chorus then fell to their knees and sang, "Save Miranda, save Miranda, save it from the Nixon Four." The so-called Nixon Four were Supreme Court Justices Warren Burger, Harry Blackmun, Lewis Powell, and, of course, Rehnquist.

Twenty-five years later, after having repeatedly ridiculed the constitutional soundness of the decision requiring police officers to read suspects their Miranda rights, Rehnquist voted to uphold it. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," he wrote in a 7—2 opinion for the Court in Dickerson v. U.S., in 2000. Rehnquist's apostasy provoked one of Justice Antonin Scalia's most vitriolic dissenting opinions. Joined by Justice Clarence Thomas, Scalia declared, "Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."

Rehnquist's evolution from Miranda's leading critic to its improbable savior infuriated conservatives and confused liberals; but in fact it was emblematic of his career. Throughout his long tenure, liberals always simplistically lumped Rehnquist together with the other conservatives on the Court, whereas conservatives never fully embraced him as one of their own. Furthermore, liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him. And his administration of the Court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years....

If judicial activism is defined by a judge's willingness to strike down federal or state laws, then Scalia and Thomas are among the most activist justices on the Court today, surpassed only by Anthony Kennedy and, perhaps surprisingly, Sandra Day O'Connor. In contrast, Rehnquist is tied with Stephen Breyer for the role of second most restrained justice, after Ruth Bader Ginsburg. And while all the conservatives on the Rehnquist Court say for public consumption that the judiciary should occupy a modest role in American politics and should defer to the judgment of elected legislators, Rehnquist has most consistently practiced what he preaches.

''I'm a strong believer in pluralism," Rehnquist told The New York Times Magazine in 1985, the year before he was appointed chief justice. "Don't concentrate all the power in one place … You don't want all the power in the Government as opposed to the people. You don't want all the power in the Federal Government as opposed to the states." When pressed about the source of these views, he joked, "It may have something to do with my childhood." [He grew up in the midwest.] ...

After Harvard, Rehnquist attended Stanford Law School and graduated in 1952 at the top of an impressive class that included Sandra Day O'Connor. Based on his stellar academic record and genial personality, he won a clerkship with Supreme Court Justice Robert Jackson, who had been Franklin Roosevelt's attorney general and was committed to the principle of judicial deference to legislatures. During his clerkship, which began in 1952, Rehnquist wrote two highly controversial memos to Jackson that would provoke firestorms during his own confirmation hearings, in 1971 and 1986. In the memos Rehnquist seemed to urge Jackson to dissent in two historic civil-rights cases: Brown v. Board of Education, which would strike down school segregation, and Terry v. Adams, which would block efforts to exclude blacks from the pre-primary selection of Texas Democrats. Rehnquist claimed during the hearings that he was expressing these views at Jackson's request—an assertion disputed by Jackson's secretary. Several legal scholars believe that Rehnquist probably lied in denying that the views were his. He appears to have been the only Supreme Court clerk during the 1952 term who supported Plessy v. Ferguson—this at a time when the country as a whole was evenly split over desegregation. Whether he was speaking for himself or for Jackson, the central position that Rehnquist laid out in the memos—stressing the importance of judicial deference to the majority will—succinctly summarized what would become his judicial philosophy throughout his career.In the Brown memo Rehnquist wrote that the Supreme Court was ideally suited to mediate disputes between the states and the federal government or between branches of the federal government. In contrast, he said, "where a legislature [is] dealing with its own citizens, it [is] not part of the judicial function to thwart public opinion except in extreme cases." Brown was not one of those cases, Rehnquist argued, because "in the long run it is the majority who will determine what the constitutional rights of the minority are." Similarly, in Terry v. Adams, Rehnquist insisted that "the Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time that the Court faced the fact that white people in the South don't like the colored people."

As jarring as these memos appear now, they are consistent with the views of many political scientists today, who argue that the Court, except in rare cases, neither can nor should thwart the will of a determined national majority, and that it invites political backlash when it attempts to do so. After Rehnquist joined the Court, he was asked whether justices are able to isolate themselves from the pressures of public opinion. "My answer was that we are not able to do so, and it would probably be unwise to try," he recalled. Rehnquist's highly evolved pragmatism convinced him that the courts cannot ignore broad cultural shifts. This, as much as anything, distinguished Rehnquist from the later generation of judicial conservatives....

If the next chief justice turns out to be, as many Court watchers fear, less of a pragmatist and more of a rigid ideologue than Rehnquist, he or she may well end up dividing the Court that Rehnquist unified, and squandering its carefully constructed reserves of public trust. In that case Rehnquist's faith in majority rule, and his ability to resist the public's insistence that officeholders bare themselves in the spotlight, may seem like the scruples of a forgotten era. He may be the last of the old-fashioned judicial conservatives, who already look far more judicious than the conservatives who have arisen in their wake. And liberals may find themselves missing Rehnquist more than they could ever have imagined.