Dahlia Lithwick: What Rehnquist Didn't Do

Roundup: Talking About History

... Rehnquist was appointed by Richard Nixon to the Supreme Court as an associate justice in 1971 and elevated to chief justice by Ronald Reagan in 1986. Those hearings were marked by accusations that the young Rehnquist had authored a memo, while clerking for Justice Robert Jackson in 1952, advocating for the constitutionality of segregation. He was similarly charged with having intimidated black voters at polling places in Arizona in the 1960s. What Rehnquist didn't do in response to those charges was what Clarence Thomas did: He didn't become bitter, or reclusive, or vengeful. Rehnquist denied them, then moved on, and—for the most part—the public did too.

Rehnquist's early writings could have melted paint. In 1973, when he and Byron White were the only dissenters in Roe v. Wade, his language was uncompromising: "To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment." But as Rehnquist rose to chief and saw his pet causes—including federalism, strict adherence to the views of the framers, and judicial restraint—shift from marginal theory to the court's polestars, he didn't do what Antonin Scalia has done: He didn't keep using his writing as a showcase for his own brilliant, persuasive ideas. Indeed his opinions became increasingly anorexic—thinner and pale. He had no need to shame his colleagues or flaunt his genius. He saw that he had won his wars and moved on.

Then there were the conservative votes Rehnquist never cast: He didn't vote with the other conservatives to get rid of the Miranda warning in 1999—even though the 1966 holding that ushered in the warning was the sort of Warren Court overreaching that would have sent him into orbit as a younger man. He didn't vote with the conservative bloc in Nevada Department of Human Resources v. Hibbs—the 2003 case reasserting Congress' power to apply the Family Medical Leave Act to state governments—even though he was the charter member of the so-called Federalism Five (the group of justices who did away with Congress' Gun Free School Zones Act and the Violence Against Women Act because they violated his core doctrine of states rights). The Hibbs vote was largely seen as tactical—most court watchers agreed that Rehnquist switched his vote (he'd have been on the losing side of a 5-4 decision anyhow) so he could author the opinion himself and thus narrow it to create a precedent he could live with.

The Miranda decision was in part about public expectations and the appearance of stability on the court: As he wrote: "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." But even more centrally, his decision about Miranda was about the primacy of the court over Congress: "We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves."

No one will ever accuse Rehnquist of having been a liberal, or even a moderate. But, as Walter Dellinger points out today, time and again, in cases that implicated the supremacy of the judicial branch—cases that suggested that states or Congress might have the last word—Rehnquist was willing to part with his ideological buddies to promote a higher value than intellectual purity: the court itself....
Read entire article at Slate

comments powered by Disqus