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

William Hubbs Rehnquist

William Hubbs Rehnquist, (born 1924) one of the most Conservative members of the Supreme Court, became the court's Chief Justice when he succeeded Justice Warren Burger in 1986.

William Hubbs Rehnquist was born in Milwaukee, Wisconsin, on October 1, 1924. He grew up in the well-to-do Milwaukee suburb of Shorewood where his father, a first generation American of Swedish parentage, was a wholesale paper salesman. His mother, a graduate of the University of Wisconsin, was a housewife and a civic activist and, fluent in five foreign languages, worked as a freelance translator for local companies. At an early age he embraced his family's respect for such leaders of the Republican Party as Alf Landon, Wendell Wilkie, Herbert Hoover, and Robert A. Taft. As a child, he once told a teacher that his career plans were to "change the world."

Rehnquist attended public schools and as feature editor of the paper of the all-white Shorewood high school was critical of such news commentators as Walter Winchell whom he believed interpreted rather than reported the news. At 17 during World War II the young Rehnquist volunteered as a neighborhood civil defense officer. After attending one year of college on scholarship, he joined the Army Air Corps as a weather observer, serving principally in North Africa from 1943 to 1946. When he returned from Africa he first used his G.I. Bill benefits, then worked various part-time jobs to attend Stanford University in California. Rehnquist was an excellent student; majoring in political science he graduated Phi Beta Kappa in 1948. He received Master's degrees from Stanford and Harvard universities before completing a law degree at Stanford, where he was editor of the law review and graduated first in his class in 1952. His conservative views were solidly established by this time and he was a willing and able debater on any political issues of the day. Such impressive accomplishments earned Rehnquist a prestigious 18-month clerkship in 1952-1953 with Associate Justice Robert H. Jackson of the U.S. Supreme Court. In 1953 he married Natalie Cornell, a fellow Stanford student.

Republican Activist and Assistant U.S. Attorney General

After completing his clerkship, the Rehnquists moved to Phoenix, Arizona, a city noted for its conservative bent. Once there, Rehnquist established a private practice and became increasingly involved in Republican politics. He soon achieved prominence and in 1958 was chosen as a special Arizona state prosecutor involved in bringing charges against several state officials accused of state highway frauds. He publicly opposed a number of legislative initiatives over the years, including one that would institute busing to achieve racial integration of the schools.

Rehnquist associated with conservative Senator Barry Goldwater and Richard G. Kleindienst, and who served as chairman of the state party and as national field director for the presidential campaigns of Goldwater in 1964 and Richard M. Nixon in 1968. Among the liberals he targeted for criticism during this period were Justices Earl Warren, William O. Douglas, and Hugo L. Black, whom he termed "left-wing philosophers" of the Supreme Court, accusing them of "making the Constitution say what they wanted it to say."

Following his election in 1968, Nixon appointed Kleindienst as deputy attorney general. Kleindienst then chose Rehnquist as assistant attorney general responsible for the Office of Legal Counsel. During his two and a half years at the Justice Department Rehnquist turned what had been an obscure position into a focus of publicity and a target for criticism from liberals and Democrats. Among other controversial positions, Rehnquist defended the constitutionality of the president's policies in Indochina, Nixon's orders barring disclosure of certain government documents, and the mass arrest of peaceful demonstrators. He strongly supported the administration's stringent law-and-order program, including "no-knock" entries, pretrial detention, wire tapping, and electronic surveillance, and repeatedly stated the view that the Supreme Court had been too vigilant in defending the rights of the accused. Such positions were consistent with Nixon's desire to appoint "judicial conservatives" to the Supreme Court, and the president nominated Rehnquist and Lewis F. Powell, Jr., a noted Virginia lawyer, to be associate justices on October 21, 1971.

A Conservative on the Supreme Court

A few liberal senators opposed Rehnquist, but after he softened his law-and-order image and admitted having acquired a more sympathetic attitude toward civil rights, he was confirmed. Rehnquist and Powell then filled the seats on the Court vacated by Justices Hugo L. Black and John M. Harlan.

Rehnquist was easily the most conservative member of the Warren Court. He joined a tribunal that was just beginning to reconcile years of judicial activism maintained under the leadership of Chief Justice Earl Warren with a more restrained approach to decisions symbolized by the new chief, Warren Burger. Even though Nixon had tried to fill the Court with "judicial conservatives," no radical shift to the right immediately occurred. Instead, the Court pursued an uneven course, sometimes adhering to a conservative position, at other times to a liberal one. There was, however, never a doubt about where Rehnquist stood. When the Court in Roe v. Wade (1973) overturned state laws against abortions, he dissented, arguing in favor of state power. Similarly, when the majority upheld bussing as a means to bring about desegregation in Keyes v. School District No. 1, Denver, Colorado (1973), Rehnquist wrote a stinging dissent. Often the only dissenter, he opposed school desegregation, women's rights, civil-service jobs for aliens, and health care for the poor, among others. Especially during the early years on the Court, his one-man dissents occurred so often that Rehnquist's law clerks presented him a Lone Ranger doll, referring to their boss as the "lone dissenter." He remained unpopular with liberals who argued that his unwavering support on such issues as states rights served to endorse blatant discrimination against minorities and women. Nevertheless, he was also recognized as an extremely intelligent and well organized addition to the Court, and some note that his lone dissents became important in later shaping majority decisions.

No decision illustrated better Justice Rehnquist's orientation than his remarkable decision in National League of Cities v. Usery (1976). The issue was whether the federal minimum-wage law applied to all state and local government employees. In an earlier case the majority of the Court had decided in favor of the federal government. Rehnquist alone had dissented, arguing against decades of opinions decided since the New Deal that the wage law violated state sovereignty. But in National League of Cities four justices accepted the reasoning of his previous dissent and Rehnquist wrote for a 5-4 majority that "this Court has never doubted that there are limits upon the power of Congress to override state sovereignty."

By the early 1980s Justice Rehnquist found himself more often in the majority. This occurred not because he changed, but because the Court did. With President Ronald Reagan's appointment of Justice Sandra Day O'Connor in 1981 Rehnquist and Chief Justice Burger gained a reliable third vote, which made it much easier to put together a majority whose views favored Rehnquist's views. Of 28 cases decided during the October 1984 term by a 5-4 vote, for example, the former "lone dissenter" was in the majority in 17. Slowly, the Court seemed to be shifting toward a discernibly conservative position more consistent with Rehnquist's views. Yet even so, the future was cloudy. Early in 1985 the Court overturned Rehnquist's National League of Cities opinion in Garcia v. San Antonio by a 5-4 vote.

When Chief Justice Burger resigned in 1986, President Reagan impressed with Rehnquist's intellect and conservative stances nominated him to be the nation's 16th chief justice, with Antonin Scalia named to the open associate justice slot. Liberals, and members of Congress who had long been at odds with Rehnquist were alarmed at the nomination. Allegations of past misdeeds (including a charge that he had harassed minority voters in Phoenix) were raised to try and thwart the confirmation, but nothing could stick in view of his years on the Supreme Court. The Senate confirmed both nominations.

Rehnquist proved an excellent administrator, lessening the Court's burgeoning case workload. Although he remained one of the most conservative justices, he also maintained a strong sense of independence. He had to endure charges that his opinions reflected his own personal politics more than actual judicial philosophy. However, when examined, it was noted that he often stood with the majority even if it crossed the established Republican line. In Morrison v Olson (1988) he upheld Congress' right to appoint independent counsel to investigate and prosecute government officials, over the strenuous objects of the Reagan administration, who had been responsible for his appointment to the Supreme Court. In 1996, he clashed openly with Republicans over their criticism of President Clinton's judicial appointments. As Chief Justice, Rehnquist brought order to the court and won striking support for judicial restraint from his colleagues. His belief that any move to weaken judicial independence would only serve to undermine the effectiveness of the federal courts was the cornerstone of his tenure at the Court. In a 1996 speech he said "Change is the law of life, and judiciary will have to change to meet the challenges which will face it in the future. But the independence of the federal judiciary is essential to its proper functioning and must be retained." Rehnquist was a pillar of conservative judicial thought on the nation's highest court.

Further Reading

The best treatment of Justice Rehnquist's role on the Supreme Court can be found in The Burger Court: The Counter-Revolution That Wasn't, Vincent Blasi, editor (1983). For Rehnquist's own views see his The Supreme Court: How It Was, How It Is (1987). An excellent article that covered both the course of Rehnquist's career and his ideas was "The Partisan: A Talk With Justice Rehnquist," by John A. Jenkins in New York Times Magazine (March 3, 1985). A specialized but nonetheless very good piece was Jeff Powell's "The Complete Jeffersonian: Justice Rehnquist and Federalism," The Yale Law Journal 91 (June 1982), which dealt especially with judicial theory and the National League of Cities opinion. Peter Iron's Brennan vs. Rehnquist: The Battle for the Constitution (1994) compared the conservative and liberal interpretations of the constitution and the courts. David Savage examined the rightward swing of the court in Turning Right: The Making of the Rehnquist Supreme Court Rehnquist's own views of the role of the federal judiciary can be found in a speech given May 1, 1996 in Vital Speeches May 1, 1996, p 418 The Future of the Federal Courts. □

REHNQUIST, WILLIAM HUBBS

William Hubbs Rehnquist was appointed to the U.S. Supreme Court in 1972 and was elevated to the position of chief justice in 1986. A political and judicial conservative, Rehnquist has consistently sought to limit the power of the federal government to intervene in areas that are traditionally left to the states.

Rehnquist was born on October 1, 1924, in Milwaukee, Wisconsin. In 1943, he joined the U.S. Army Air Corps and served until 1946. He then took advantage of the gi bill to attend college at Stanford University. After graduating in 1948 with both a bachelor's and a master's degree, Rehnquist earned a second master's degree in political science from Harvard University in 1949. He then attended Stanford University Law School, where he finished first in his 1952 graduating class.

Rehnquist then served as a law clerk for U.S. Supreme Court Justice robert h. jackson. It was during the 1952 term that the Court first

heard arguments on the constitutionality of state-segregated public education. In a memorandum to Jackson that would come back to haunt him at his judicial confirmation hearings, Rehnquist argued for upholding the separate but equal doctrine contained in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896).

After he left his judicial clerkship in 1953, Rehnquist relocated to Phoenix, Arizona, where he joined the state bar and entered private practice. In 1958, he served as a special state prosecutor, bringing charges against several state highway officials who were accused of fraud. During his years of practice, he specialized in civil litigation.

Rehnquist's path to the U.S. Supreme Court began in Arizona republican party politics of the 1950s. Under the leadership of U.S. Senator barry m. goldwater, the party became the dominant force in Arizona government, espousing a political view that was more rigid and doctrinaire than that of the national Republican party. Rehnquist became active in the party and made the acquaintance of richard g. kleindienst, an attorney who chaired the state Republican Party and who was a close adviser to Goldwater. Kleindienst served as Rehnquist's political mentor and involved him in the 1964 presidential election that Goldwater lost to President lyndon b. johnson.

In 1968, Kleindienst worked on richard m. nixon's presidential campaign. After Nixon was elected, he appointed Kleindienst to be deputy attorney general. Kleindienst in turn recommended Rehnquist for the position of assistant attorney general in charge of the Office of Legal Counsel in the u.s. justice department. Attorney General john n. mitchell was initially reluctant to hire Rehnquist, but, after interviewing him, Mitchell became convinced that Rehnquist was the right person for the job.

As head of the Office of Legal Counsel, Rehnquist supplied legal advice to all of the departments of the federal government. He also became one of the most stalwart defenders of the Nixon administration's policies. He supported preventive detention and the administration's authority to order wiretapping and surveillance without a court order. He also agreed that the exclusionary rule in criminal cases should be abolished. This rule excludes evidence that the police have seized illegally.

In 1971, President Nixon nominated Rehnquist to the U.S. Supreme Court. Senate Democrats, concerned about Rehnquist's conservative philosophy and his actions as a member of the Nixon administration, sought to defeat the nomination. They used Rehnquist's memorandum supporting the upholding of Plessy as evidence that he was hostile to civil rights. Despite these efforts, Rehnquist was easily confirmed.

Rehnquist joined a Court that was headed by Chief Justice warren e. burger. At the time of his appointment, the Court still had a liberal majority. Rehnquist immediately became the most conservative member of the Court. When the Court ruled in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), that a woman had the right to an abortion, Rehnquist dissented. He has remained consistently opposed to abortion but has never found enough votes to overturn Roe.

As justices retired or died during the 1970s and early 1980s, more conservative justices were appointed to the Court. Rehnquist's views on federalism began to be adopted by his colleagues. The concept of federalism concerns the distribution of power to the states and the federal government. Until the coming of franklin d. roosevelt's new deal in the 1930s, states had much more power over regulating day-today life than the federal government did. The liberal warren court of the 1960s greatly expanded the right of Congress to regulate economic and other societal activities.

By the late 1970s, Rehnquist helped convince a majority of the Court to begin to pull back from the idea that the federal government, which included the federal courts, could intrude into areas that traditionally were left to the states. In National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976), Rehnquist held that the commerce clause of the U.S. Constitution did not give Congress the power to extend federal minimum wage and overtime standards to state and local governments.

Rehnquist wrote decisions that restricted the power of a federal court to oversee the reform of a police department (Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 [1976]); prohibited construing nineteenth-century federal civil rights laws to allow affirmative action (General Building Contractors v. Pennsylvania, 458 U.S. 375, 102 S. Ct. 3141, 73 L. Ed. 2d 835 [1982]); and prevented plaintiffs from collecting government benefits that had been wrongfully withheld by state governments (Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 [1974]).

In cases involving criminal law and procedure, Rehnquist has consistently sided with law enforcement. In Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983), he crafted a new rule that made it easier for police to obtain a warrant on the basis of an informant's tip. He supported the creation of a "good faith" exception to the exclusionary rule (United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984]) and has upheld the constitutionality of pretrial detention (United States v. Salerno, 481 U.S. 739, 107 S. Ct. 2095, 95 L. Ed. 2d 697 [1987]). Rehnquist has also been a consistent defender of the constitutionality of the death penalty and a consistent critic of lengthy and repetitive death penalty appeals based on the writ of habeas corpus.

In civil rights cases, Rehnquist has sought to tie affirmative action to specific discriminatory conduct against the plaintiffs, rather than to past societal wrongs. He did, however, write the majority opinion in Meritor Savings Bank, Federal Savings Bank v. Vinson, 477 U.S. 57, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), which applied Title VII of the civil rights act of 1964 (42 U.S.C.A. § 2000a et seq.) to sexual harassment on the job. An employer may be held liable if a "hostile work environment" is created where sexual harassment takes place.

"Justice is too important a matter to be left to the judges, or even to the lawyers: the American people must think about, discuss, and contribute to the future of their courts."
—William H. Rehnquist

In 2000, Rehnquist wrote the lead opinion in boy scouts of america v. dale, 530 U.S. 640, 120 S. Ct. 2446, 147 L. Ed. 2d 554 (2000), where the Court held that applying a New Jersey public-accommodation law to require the Boy Scouts to admit homosexuals violated the first amendment. The case had been watched closely by gay and lesbian rights advocates. Some

commentators suggested that Rehnquist and the majority had relied too heavily on tradition in making the ruling. However, others maintained that the decision was consistent with others in First Amendment jurisprudence.

In recognition of Rehnquist's record on the Court, President ronald reagan nominated him in 1986 to succeed Chief Justice Burger. Again, there was some opposition to his nomination, but he was easily confirmed.

Although Presidents Ronald Reagan and george h. w. bush appointed conservatives to the Court after Rehnquist became chief justice, the Rehnquist Court has maintained a moderate course. Justices sandra day o'connor, david h. souter, and anthony m. kennedy, who have moderately conservative views, have resisted calls from Rehnquist and Justices antonin scalia and clarence thomas to overturn Court precedents, including Roe v. Wade.

Rehnquist presided over the Senate impeachment trial of President bill clinton during January and February 1999. He assumed the role based on Article I, Section 3 of the Constitution, which provides that the chief justice shall preside when the president of the United States is tried, but it offers no guidance as to what the chief justice's role should be. Clinton's impeachment marked the second time in U.S. history that a chief justice has presided over the impeachment trial of a president. Rehnquist shares this distinction with his predecessor, salmon p. chase, who presided over the 1868 trial and subsequent acquittal of President andrew johnson.

Rehnquist modeled the Senate proceedings after the 1868 trial. The trial little resembled a typical courtroom trial because the chief justice's authority was rigidly circumscribed. The rules mandated that senators sit mute through the trial. Only Rehnquist could ask questions upon the written request of the senators. He had the authority to decide questions of procedure and admissibility of evidence, but the Senate had the power to overturn any ruling by a simple majority vote. Rehnquist was not called upon to rule on any evidentiary issues, nor was he asked to decide what questions a witness could be asked.

further readings

Belsky, Martin H., ed. 2002. The Rehnquist Court: A Retrospective. New York: Oxford Univ. Press.

Rehnquist, William H. 2001. The Supreme Court. New York: Knopf.

Schwartz, Herman, ed. 2002. The Rehnquist Court: Judicial Activism on the Right. New York: Hill and Wang.

Yarbrough, Tinsley E. 2000. The Rehnquist Court and the Constitution. New York: Oxford Univ. Press.

Rehnquist, William Hubbs (b. 1 Oct. 1924). US Supreme Court Chief Justice 1986–  Born in Milwaukee, Wisconsin, he became a lawyer after distinguishing himself in the air force during World War II. He holds BA, MA, and LLB degrees from Stanford and a Harvard MA. He became a clerk to the Supreme Court in 1952, a Republican politician, and an assistant Attorney-General of the United States under the Nixon administration in 1969. He was confirmed as a Supreme Court Justice in 1971. He dissented from the judgment in Roe v. Wade, and became associated with efforts to remove abortion rights from the federal sphere to the discretion of the states. Appalled by judicial activism, he advocated a classical, minimalist role for the court after the tumult of the 1960s. In 1986, he was appointed by Ronald Reagan to replace Warren Burger as Chief Justice. He is a distinguished author of legal histories and commentaries. In this position, he presided over the Court's shift to the right, culminating in the controversial Supreme Court intervention to decide the 2000 presidential elections.

Rehnquist, William Hubbs (1924– ) US jurist and lawyer. A political conservative, he was chosen by President Nixon to direct the Office of Legal Counsel of the Department of Justice (1968–71). In 1971 Nixon appointed him an associate justice of the US Supreme Court.