Rehnquist, William Hubbs

Rehnquist, William Hubbs (b. Milwaukee, Wis., 1 Oct. 1924), associate justice, 1972–1986; chief justice, 1986–. Appointed by President Richard Nixon for his views on criminal justice and his endorsement of a more modest role for the Court, William H. Rehnquist was the most conservative member of the Burger Court; he was also often identified as the justice with the most impressive intellectual ability. When Chief Justice Warren Burger announced his retirement in 1986 President Ronald Reagan, pleased with Rehnquist's conservative views, elevated him to the position of chief justice. By the end of the 1980s a conservative bloc of justices had emerged with views that coincided with Rehnquist's. Thus, he led the Court through the last decade of the twentieth century and into the twenty‐first.

Rehnquist's background sheds some light on his later work as a justice. After earning two masters' degrees in political science—one from Stanford in 1949 and one from Harvard in 1950—he graduated from Stanford Law School in December 1951. He served as clerk to Justice Robert H. Jackson in 1952 and 1953, and it was in that capacity that he wrote a memorandum to help the justice prepare for the Court's discussion of the constitutional challenge to officially segregated schools. Rehnquist's memorandum argued in favor of upholding the separate but equal doctrine of Plessy v. Ferguson (1896). After completing his clerkship with Jackson, he moved to Phoenix, Arizona, where for sixteen years he practiced law and participated in a variety of local political activities. During those years he appeared as a witness before the Phoenix City Council in opposition to a public accommodations ordinance and took part in a program of challenging voters at the polls. From 1969 until 1971 Rehnquist served as assistant attorney general for the Office of Legal Counsel. In that position, he supported executive authority to order wiretapping and surveillance without a court order, no‐knock entry by the police, preventive detention, and abolishing the exclusionary rule.

The influence that Rehnquist has had on the decisions of the Supreme Court during the last third of the twentieth and the early years of the twenty‐first centuries revolves around his efforts to shift the balance of power away from the federal government back to the states, and in so doing to limit the powers of the federal judiciary. His conception of the appropriate distribution of powers between the national government and the states has had a major influence as well on the extent to which the Constitution protects individual rights.

Rehnquist played a leading role during the 1970s in reviving the debate—generally considered to have been settled since the late 1930s—concerning the powers of Congress under the Commerce Clause. In his opinion for a five‐member majority in 1976 he asserted that Congress's commerce power is limited by the fact that it may not legislate in such a way as to infringe on fundamental aspects of state sovereignty that are essential to the states' ability to function in the federal system (National League of Cities v. Usery). When an equally narrow majority overruled that decision in 1985, Rehnquist expressed his confidence that the principles of state sovereignty would “in time again command the support of a majority of this Court” (Garcia v. San Antonio Metropolitan Transit Authority, p. 580). In 1995 his view prevailed once more when, for the first time in sixty years, a majority invalidated a federal law—the Gun‐Free School Zones Act—on the grounds that Congress had exceeded its constitutional authority to regulate interstate commerce (United States v. Lopez). His position dominated the Court into the twenty‐first century, albeit by a narrow majority. Indeed, the chief justice appeared to have successfully brought an end to the Court's deferential attitude toward Congress's exercise of its commerce power and revived the pre‐1937 requirement that Congress must demonstrate that activity it seeks to regulate has a substantial effect on interstate commerce.

In 2000 Rehnquist wrote for the majority to invalidate the Violence Against Women Act, which authorized civil actions against individuals who commit crimes of violence motivated by gender (United States v. Morrison). Noting that gender‐motivated crimes of violence are not economic activity, the chief justice suggested that even though Congress had tried to provide support for the statute with findings that gender‐motivated violence has a serious impact on interstate commerce, such findings were not sufficient to demonstrate the requisite substantial impact on interstate commercial transactions or products. Rehnquist, in short, has been instrumental in reversing the Court's long‐standing tradition of deferring to Congress's use of its power under the Commerce Clause. Moreover, he has played an active role in limiting the power of the federal courts by construing the Eleventh Amendment as a bar to federal suits brought by individuals against state agencies (see, for example, Edelman v. Jordan, 1974; Seminole Tribe of Florida v. Florida 1996; Board of Trustees of Alabama v. Garrett, 2001).

Rehnquist has also had a major impact on the Court's decisions in the area of the rights of individuals accused of crimes. His support for law enforcement has been consistent. He has referred to the process by which the Court incorporated the Bill of Rights in the 1960s as a “mysterious process of transmogrification” (p. 309) and has endorsed the earlier approach whereby the states were not required to comply with the Bill of Rights but only to treat individuals with fundamental fairness (see Carter v. Kentucky, 1981). He wrote opinions for the majority restricting defendants' ability to challenge police searches (Rakas v. Illinois, 1978; Rawlings v. Kentucky, 1980). He endorsed limiting the exclusionary rule with an exception based on the “good faith” of the police (United States v. Leon, 1984) and wrote the opinion for the majority upholding pretrial detention (United States v. Salerno, 1987).

Rehnquist has also played an active role in the Court's efforts to limit the Miranda rules. In 1984 he wrote an opinion for the majority endorsing a “public safety” exception to Miranda's requirement that the police advise suspects in custody of their rights before questioning them (New York v. Quarles). A pivotal issue in the controversy regarding the continuing viability of the Miranda standards is that of whether the rule is itself a constitutional requirement or a “prophylactic” rule to help protect Fifth Amendment rights. If the Miranda warnings are not required by the Constitution, then Congress could legislate to guarantee the protection against self‐incrimination through other means and, in effect, could overrule Miranda. Rehnquist made his position on this issue clear in 1974 when he stated that the Miranda rights are “prophylactic rules” (p. 439), “procedural safeguards,” intended “to provide practical reinforcement for the privilege against self‐incrimination” that are “not themselves rights protected by the Constitution” (Michigan v. Tucker, p. 444). When the issue came squarely before the Court in 2000 it was widely expected that a majority, including the chief justice, would take the opportunity to overrule Miranda. Surprisingly, however, Rehnquist wrote an opinion for the majority declining to do so, emphasizing that there was no justification for casting aside a rule that had become embedded in routine police practice (Dickerson v. United States).

Throughout his career on the Court, Rehnquist has consistently opposed efforts to limit the death penalty. He urged the Court to retain the death penalty against the charge that it violates the Eighth Amendment (Furman v. Georgia, 1972). Subsequently, he joined the majority when it held that the death penalty may be used in cases of “felony murder” (Tison v. Arizona, 1987). He also voted with the majority to hold that statistical evidence of racial discrimination in capital sentencing cannot, without more, establish a violation of the Eighth Amendment (McCleskey v. Kemp, 1987). Additionally, Rehnquist supported the Court when it upheld the imposition of the death penalty on individuals who were sixteen or seventeen years old at the time they committed murder and dissented when a majority held that a fifteen‐year‐old could not be executed (Stanford v. Kentucky, 1989; Thompson v. Oklahoma, 1988). He dissented when the Court held that the Eighth Amendment prohibits the execution of the mentally retarded (Atkins v. Virginia, 2002).

As a member of the Burger Court, Rehnquist was outspoken in his opposition to the expansive use of habeas corpus as a vehicle for reform. He campaigned to limit the use of federal habeas corpus to challenge death sentences. In 1981 he complained that in spite of the Court's determination that capital punishment does not violate the Constitution, there had been only one execution of a defendant who had persisted in challenging his sentence. He blamed the Court for allowing the death penalty to become “virtually an illusion” (p. 958), making a mockery of the criminal justice system (Coleman v. Balkcom). Although he stood alone in 1981 his position came to prevail in the 1990s.

In 1989, in his capacity as head of the Judicial Conference of the United States, Rehnquist appointed a committee to recommend limits on the availability of habeas corpus for death‐row appeals. The result was the Powell Report, which recommended that condemned prisoners be allowed only one appeal to the state courts, and if that failed, that one appeal to the federal courts would be allowed but only if filed within six months. Although the Conference postponed consideration of those recommendations, the chief justice sent the proposals directly to the House and Senate judiciary committees. Fourteen of the conference's twenty‐six other members asked the committees to delay action until they had heard from the senior federal judges. Undeterred, Rehnquist asked Congress to act on the proposals as soon as possible. Although Congress did not act, the Court did. In 1991, the justices held that petitioners would be required to show cause in second or subsequent habeas petitions for failing to raise a claim in an initial petition (McCleskey v. Zant). Two years later Rehnquist wrote for the majority, holding that a state prisoner's claim of actual innocence based on newly discovered evidence does not constitute grounds for federal habeas corpus relief (Herrera v. Collins, 1993). In 1996, when Congress moved to restrict habeas corpus in the Antiterrorism and Effective Death Penalty Act by providing that second or subsequent habeas petitions cannot be filed unless a federal appeals court grants a motion giving the prisoner permission to file a petition, the Court unanimously and quickly upheld the legislation (Felker v. Turpin, 1996).

Two additional areas of individual rights in which Rehnquist has been outspoken but in which he has not been as successful in getting his views into the law concern privacy and equal protection. He has made clear his disagreement with the principle that a woman's right to choose to terminate a pregnancy is constitutionally protected. In his view, laws regulating abortion should be upheld so long as they are reasonably related to a legitimate state interest, including an interest in preserving human life (see Roe v. Wade 1973; Webster v. Reproductive Health Services, 1989; Planned Parenthood v. Casey, 1992). He has taken a similar position with regard to the right to refuse medical treatment, the right to assisted suicide (Cruzan v. Director, Missouri Department of Health, 1990; Washington v. Glucksberg, 1997), and the right of same‐sex couples to engage in consensual sex (Bowers v. Hardwick, 1986; Lawrence v. Texas, 2003).

Rehnquist's construction of the Fourteenth Amendment's mandate to the states not to deny any person the “equal protection of the laws ” is similarly narrow. He has contended that all that the framers of the Fourteenth Amendment hoped to achieve with the Equal Protection Clause was to prevent the states from treating black and white citizens differently. Consequently, according to Rehnquist, that clause should not apply when the state has not intentionally discriminated (Columbus v. Penick, 1979) nor when the state has not participated in discrimination (Moose Lodge v. Irvis, 1972); nor should the Equal Protection Clause be construed to prohibit disparate treatment based on gender (Craig v. Boren, 1976; Michael M. v. Superior Court of Sonoma County, 1981). He has also consistently held that race may not be considered in employment and university admissions programs (Regents of University of California v. Bakke, 1978; United Steelworkers of America v. Weber, 1979; Grutter v. Bollinger, 2003; Gratz v. Bollinger, 2003).

Rehnquist's decision making in the area of property rights has been noteworthy for the limits he would set on the extent to which the states may regulate property under the Fifth Amendment's Takings Clause. As a general rule, governmental regulation of property amounts to a compensable taking when it physically invades the property or prevents its use in such a way that its value is destroyed. Nevertheless, the mere fact that an exercise of the police power to protect the health, safety, and morals of the community causes some economic loss does not establish a taking of property. In 1978 Rehnquist dissented from the Court's determination that application of New York City's preservation law to prohibit construction of a fifty‐three‐story office building on top of Grand Central Terminal was not a taking (Penn Central Transportation Co. v. New York City, 1978). The landmarks law, he argued, imposed a multimillion‐dollar loss on the owners—an unfair burden that was not offset with any benefit to the city of landmark preservation—even though the law did not interfere with the use of the building as a railroad terminal. In several cases decided in the 1970s and early 1980s Rehnquist voted to uphold restrictions on property usage imposed by state and local governments, suggesting that his state‐centered federalism was more important to him than protecting property rights (Village of Belle Terre v. Boraas, 1973; Moore v. City of East Cleveland, 1977; Prune Yard Shopping Center v. Robbins, 1980). When Antonin Scalia joined the Court in 1986 and played a leading role in the Court's reinvigoration of the Takings Clause to protect the interests of property owners, Rehnquist was his ally (Nollan v. California Coastal Commission, 1987; Lucas v. South Carolina Coastal Council, 1992). The chief justice wrote for a five‐member majority in 1994 to hold that a local agency's decision to condition permission for the enlargement of a business site on the owner leaving a portion of the property open for a bicycle/pedestrian path and devoting some of it to a public green space constituted a taking. Rehnquist explained that if such exactions on development are to survive takings challenges, there must be some “sort of individualized determination” (p. 391) that there is a relationship between the conditions on the proposed development and the burdens anticipated from the building project. Stressing that the Takings Clause was an integral part of the Bill of Rights, Rehnquist intimated that regulations on land use might be held to a higher level of judicial scrutiny (Dolan v. City of Tigard, 1994).

Chief Justice Rehnquist has had an impact not only on the substance of the decisions of the Court but also on the way that the Court does its work. As the workload of the Court increased during the Warren and Burger years it became imperative for the chief justice to run the Court efficiently. Chief Justice Burger instituted a variety of reforms that were geared to improving the efficiency of the judiciary, and when Rehnquist became chief justice he adopted the same goal. The result is that the Court has become more bureaucratic (see Bureaucratization of the Court). Moreover, his efforts to streamline the conference have reputedly led to a decline in intellectual debate among the justices. He has also tried to promote efficiency by reducing the share of majority opinions assigned to justices who fail to complete their dissents within four weeks after the majority opinion circulates. While rushing through the cases with a minimum of intellectual exchange among the justices is consistent with the goal of increasing efficiency, it also may enhance Rehnquist's ability to control the decisions of the Court. Moreover, the Court's failure to address national controversies serves to promote Rehnquist's goal of reducing the role of the federal judiciary. The chief justice is also commonly credited with the shrinking docket of the Court—during the 2003 term the Court decided fewer than 90 cases, considerably fewer than the 175 decided in the 1985 term. The sharp decline in the number of cases the Court accepts for review may make the Court operate more efficiently, while it also may be part of Rehnquist's strategy to reduce the role of the Court and to let conservative decisions of the lower federal courts stand.

Scholars have explained Rehnquist's record in a variety of ways. Early assessments identified judicial self‐restraint as the driving force behind his decision making. By his own account, Rehnquist favored judicial deference to legislative decisions. In cases in which the Court was called on to resolve a conflict between the power of government and an individual, Rehnquist favored restraint, but when the conflict was between the federal government and a state, he was willing to use judicial power to invalidate federal laws in favor of state autonomy. Moreover, when the Court was called upon to resolve the disputed election of 2000 the chief justice voted to reverse the decision of the Florida supreme court (Bush v. Gore, 2000).

Such inconsistencies promote the perception of Rehnquist as unprincipled and result‐oriented. Yet his decision making might be understood as the product of a judicial philosophy with legal positivism at its core and a particular ordering of judicial values. In this view the most important value for Rehnquist is state‐centered federalism. Thus, federalism may be so central to his decision making that it abrogates any prescription for a minimal role for the Court. Such an analysis helps to account for his failure to support judicial restraint faithfully. Moreover, the consequences of state autonomy are usually consistent with such political objectives as facilitating the punishment of criminals.

Over the years Chief Justice Rehnquist has had an increasingly important impact on the Supreme Court. As chief justice he has been particularly successful in shaping the law in the areas that are central to his agenda of curtailing federal power, thereby limiting the constitutional protection of individual rights. He will surely be remembered as a justice whose conservative views began to capture a majority, as the make‐up of the Court grew increasingly conservative during the final years of the twentieth century. He has had a major influence on some of the most important decisions of the Court and has been particularly successful in shaping the law in the areas that are most important to him.

Bibliography

Sue Davis , Justice Rehnquist and the Constitution (1989).
Sue Davis , The Chief Justice and Judicial Decision‐Making: The Institutional Basis for Leadership on the Supreme Court, in Supreme Court Decision‐Making: New Institutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman (1999), pp. 135–154.
Jeff Powell , The Compleat Jeffersonian: Justice Rehnquist and Federalism, Yale Law Journal 91 (1982): 1317–1370.
Jeffrey Rosen , Court Marshall, The New Republic, 21 June 1993.
John R. Rydell . Mr. Justice Rehnquist and Judicial Self‐Restraint, Hastings Law Journal 26 (1975): 875–915.

Sue Davis