Rehnquist, William Hubbs

views updated May 21 2018

Rehnquist, William Hubbs

(b. 1 October 1924 in Milwaukee, Wisconsin; d. 3 September 2005 in Arlington, Virginia), sixteenth chief justice of the U.S. Supreme Court, known for his conservative decisions upholding the principles of strict construction, judicial restraint, and federalism.

Rehnquist was the oldest of two siblings and grew up in Shorewood, a Milwaukee suburb. His father, William Benjamin Rehnquist, was a wholesale paper salesman. His mother, Margery (Peck) Rehnquist, a graduate of the University of Wisconsin, worked part-time as a translator and was a homemaker. Rehnquist changed his middle name from “Donald” to “Hubbs,” his grandmother’s maiden name, as a teenager. His grandfather was a Swedish immigrant who, along with his brother, changed the family name from “Anderson,” which he deemed too common, to “Rehnquist” (meaning “clean branch” in Swedish) upon arrival in America.

Rehnquist graduated from Shorewood High School and briefly attended Kenyon College in Gambier, Ohio, on a scholarship. In March 1943 he dropped out of college after one quarter to join the U.S. Army Air Forces. After considerable training in meteorology in the United States, he was sent to North Africa as a weather observer and repairer of meteorological equipment in the summer of 1945. However, by the time he arrived, the French had returned to this area and insisted on doing most of the weather work themselves, so Rehnquist had limited wartime duties. He played a lot of touch football.

After his discharge in 1946 at the rank of sergeant, he attended Stanford University in California on the GI Bill. He worked in the school dining room and, according to the future Supreme Court justice Sandra Day O’Connor, a younger undergraduate at the time, impressed her and her friends with his ability to carry several trays full of dishes at one time. In 1948 he received a BA and an MA in political science from Stanford and went on to Harvard University in Cambridge, Massachusetts. There he earned another MA in government in 1949, with an eye toward becoming a college professor. However, he decided the academic life was not for him and returned to Stanford to get a law degree. He graduated as the valedictorian with an LLB in 1952.

At that time, it was unthinkable to travel from California to Washington, D.C., to interview for a Supreme Court clerkship and William Douglas, the only justice who recruited in the West, had already chosen his clerks. As luck would have it, however, Justice Robert Jackson was coming to Stanford to dedicate the new law building, and Rehnquist’s professor Philip Neal, a former Jackson clerk, arranged an interview for him. Rehnquist felt the interview had gone badly, as Jackson regaled him with tales of Swedish clients he had known (and not necessarily liked). Nevertheless, in November 1951 he received a letter from Jackson offering him a clerkship and asking if he could begin in February. Accordingly, Rehnquist returned home briefly after graduating and then drove to Washington to clerk for Jackson through June 1953.

While clerking, Rehnquist wrote a memo defending the case of Plessy v. Ferguson (1896). Plessy had established the “separate but equal” doctrine as to the races, which the Court was reconsidering in the famous case of Brown v. Board of Education (1954). The memo took the view that such matters should be determined by democratic processes rather than by judicial fiat. When this memo came to light during Rehnquist’s confirmation hearings for Supreme Court justice in 1971, he claimed that it was either reflecting Jackson’s views or was a “devil’s advocate” memo to air the other side of the issue. In any case, Jackson ended up joining Chief Justice Earl Warren’s opinion striking down the so-called separate but equal educational system of Topeka, Kansas.

During his clerkship Rehnquist became engaged to Natalie Cornell, and they married on 29 August 1953. They had three children. Natalie died in 1993 from ovarian cancer. Rehnquist moved the family to Phoenix, Arizona, where he engaged in the private practice of law with several firms. There he became active in Republican politics and also authored a famous article in U.S. News and World Report in which he claimed that the liberal bias of Supreme Court law clerks influenced not the outcome of cases but the justices’ decisions as to which cases to hear. At one point he became disaffected with the practice of law and bought an orchard in Utah. However, after experimentally moving his family to rural Utah one summer, he decided to return to Phoenix and law.

After Richard M. Nixon was elected as the U.S. president in 1968, Richard Kleindienst, whom Rehnquist knew from politics and poker in Phoenix, became the deputy attorney general. He invited Rehnquist to become the assistant attorney general for the Office of Legal Counsel in the Justice Department, a highly respected post sometimes referred to as “the president’s lawyer.” In this job, it fell to Rehnquist to defend many of the Nixon administration’s most controversial policies, including the invasion of Cambodia without the assent of Congress, domestic wiretapping in the name of national security, and tough anticrime measures like no-knock police entries and preventive detention. His duties also included screening potential Supreme Court nominees.

After Nixon’s first choices for the Court, the Arkansas lawyer Hershel Friday and California judge Mildred Lillie, were rejected by the American Bar Association as “unqualified,” a conclusion that infuriated Nixon, a White House aide suggested Rehnquist as a possible substitute. Attorney General John Mitchell agreed, and virtually overnight Rehnquist, who had not previously even been on the radar screen, became the nominee. At his confirmation hearings, when the question of his memo to Jackson was raised, Rehnquist emphasized that he now “unequivocally” supported “the legal reasoning and rightness from the standpoint of fundamental fairness of the Brown decision.” He was confirmed after a contentious five-day Senate hearing, by a vote of 68 to 26. He joined the Supreme Court on 7 January 1972, replacing Justice John Marshall Harlan, a Republican. Lewis Powell, a former president of the American Bar Association who joined the Court the same day as Rehnquist, replaced the Democrat Hugo Black. This gave the Republicans a majority on the Court that they were never to relinquish during Rehnquist’s entire thirty-three-year tenure.

Rehnquist’s vision of the Constitution was based on three principles: strict construction, judicial restraint, and federalism. He summarized this vision in his speech “The Notion of a Living Constitution” (1976): “It is almost impossible... to conclude that the [founding fathers] intended the Constitution itself to suggest answers to the manifold problems that they knew would confront succeeding generations. The Constitution that they drafted was intended to endure indefinitely, but the reason for this well-founded hope was the general language by which national authority was granted to Congress and the Presidency. These two branches were to furnish the motive power within the federal system, which was in turn to coexist with the state governments; the elements of government having a popular constituency were looked to for the solution of the numerous and varied problems that the future would bring.” In other words, as he elaborated in a dissenting opinion in Trimble v. Gordon (1977), nothing in the Constitution made “this Court [or the federal courts generally] into a council of revision, and they did not confer on this Court any authority to nullify state laws which were merely felt to be inimical to the Court’s notion of the public interest.”

Despite the Court’s Republican majority (which included, in addition to four Nixon appointees, the moderate Eisenhower appointee Potter Stewart), Rehnquist was often in lone dissent during his early years as a justice. His expansive view of states’ rights and correspondingly narrow view of federal judicial authority were considered by many as anachronistic. For example, in Weber v. Aetna Casualty and Surety Company (1972), Sugarman v. Dougall (1973), and Frontiero v. Richardson (1973), he resisted the view of the other eight justices that the equal protection clause of the Fourteenth Amendment required heightened judicial scrutiny of state-sponsored discrimination against illegitimate children, resident aliens, and women, respectively. He insisted that the scope of the equal protection clause was limited to racial discrimination, which was arguably the original intent of its framers.

In the criminal procedure area, he unsuccessfully pursued an agenda of overruling Mapp v. Ohio (1961), which had given the Fourth Amendment teeth by requiring that states must exclude evidence obtained in violation of its requirements. And, as he set forth in a Justice Department memo when he was the assistant attorney general, he was also in favor of reversing Miranda v. Arizona (1966), which had imposed the famous warnings requirement on all police prior to any custodial interrogation of criminal suspects. As it was, he was instrumental in limiting both Mapp and Miranda, particularly in the 1974 case of Michigan v. Tucker.

Still, even in these early years, he was less likely to be in dissent than the liberal bloc of William O. Douglas, William Brennan, and Thurgood Marshall. More important, some of his early dissents, such as in Memorial Hospital v. Maricopa County (1974), Cleveland Board of Education v. LaFleur (1974), and Fry v. United States (1975), were to form the basis of majority opinions in subsequent years. As the Harvard Law School professor Laurence Tribe observed, “Even in lone dissent, he has helped define a new range of what is possible.”

In the 1975 term, Rehnquist was able to attract a majority to his position in three significant cases. He wrote Paul v. Davis (1976), holding that reputation, standing alone, was not a constitutionally protected interest that could be the basis of a suit under 42 U.S.C. §1983. National League of Cities v. Usery (1976) held that the Tenth Amendment limited Congress’s power to regulate the wages and hours of state employees under the commerce clause. Finally, Rizzo v. Goode (1976) held that principles of federalism forbade federal courts from ordering that state agencies be reconfigured owing to violations of §1983.

For any justice, however, the need to hold a majority of five makes it difficult to give voice to one’s own philosophy in an opinion for the Court. Accordingly, Rehnquist made his most telling points in dissent. For example, in United Steel Workers of America v. Weber (1979), the Court upheld a voluntary affirmative action plan under which half of the positions in an on-the-job training program at Kaiser Aluminum would be reserved for blacks. Weber, excluded solely because he was white, had filed suit under Title VII of the Civil Rights Act of 1964. The statute provided that “it shall be unlawful for an employer... to fail or refuse to hire... any individual... because of such individual’s race.” The majority had found that discrimination against whites was not within the “spirit” of Title VII. Rehnquist accused the majority of Orwellian “newspeak” and concluded, “Close examination of what the Court proffers as the spirit of the Act reveals it as the spirit of the present majority.”

Similarly, in Roe v. Wade (1973) the majority based a woman’s right to an abortion on a constitutional right to privacy that arose not from the terms but from the “penumbras” of the Bill of Rights. Rehnquist wrote, “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.” Despite the force of his argument, however, and repeated efforts of presidents to appoint justices who would vote to reverse Roe, he was never able to persuade a majority to do so.

Finally, in Wallace v. Jaffree (1985) the majority struck down a state statute calling for a “moment of silence for voluntary prayer” as a thinly disguised endorsement of school prayer in violation of the “wall of separation” between church and state. Rehnquist in dissent declared, “No amount of repetition of historical errors in judicial opinions can make the errors true. The “wall of separation between church and state’ is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.” While Rehnquist was usually unable to persuade his colleagues to tear down the “wall of separation,” in Zelman v. Simmons-Harris (2002) he was able to convince a majority that a school voucher program, which aided religious along with other private schools, was constitutional.

In 1986 Chief Justice Warren Burger announced his retirement, and Rehnquist was nominated by President Ronald Reagan to replace him. Burger had recommended Rehnquist, with whom he had a close working relationship. Reagan met with Rehnquist, who was supposed to be the first of three people to interview for the chief justiceship. However, at the conclusion of the interview, Reagan offered him the job. Antonin Scalia was nominated to fill Rehnquist’s seat. Rehnquist’s nomination gave rise to fierce protest from liberals. Senator Edward Kennedy denounced him as having an “appalling record on race,” and he was branded an “extremist” by liberal columnists. Many of the same issues that had been raised in 1971 were aired again. It is significant that no allegation of any misconduct or untoward remarks was raised as to Rehnquist’s fourteen and a half years as an associate justice, and he was confirmed by a vote of 65 to 33. Justice Scalia, who proved to be a more radical conservative thinker than Rehnquist, was able to slip by largely unnoticed in his confirmation hearings thanks to the furor surrounding Rehnquist.

The question of the extent to which Rehnquist’s conservative political philosophy influenced his narrow view of the role of the generally liberal federal courts is a difficult one. In disavowing his opposition to Brown v. Board of Education at his first confirmation hearing, Rehnquist conceded that he had been insensitive to the concerns of minorities. He would perhaps admit he was also “insensitive” to the concerns of women, illegitimate children, and criminal defendants; since he felt that the Court had exceeded its constitutional authority in declaring rights for these groups, however, he would consider such insensitivity a virtue. They should, in his view, vindicate their concerns through the political process rather than through the courts.

When faced with a choice between a “liberal” outcome in a case and principles of federalism, Rehnquist would go with federalism (according to a study by Ruth Colker, a professor at the Michael E. Moritz College of Law at the Ohio State University, and Kevin Scott, an assistant professor at Texas Tech University). That is, Rehnquist would tend to vote against federal authority to interfere with states, even when states were moving in a liberal direction. This is consistent with the impression of people who knew him. He was not a racist or a religious zealot but simply took a dim view of Washington’s and particularly federal courts’ having too much power.

It is ironic that Rehnquist, often condemned as a right-wing ideologue, was advancing a judicial philosophy that had previously been the redoubt of the Court’s progressive members. In Morehead v. New York ex rel. Tipaldo (1936), for example, the dissenting opinion of Justice Harlan F. Stone, joined by Louis Brandeis and Benjamin Cardozo, declared: “It is not for the Court to resolve doubts whether the remedy by regulation is as efficacious as many believe, or better than some other, is better even than blind operation of uncontrolled economic forces. The legislature must be free to choose unless government is rendered impotent. The Fourteen Amendment has no more imbedded in the Constitution our preference for some particular set of economic beliefs, than it has adopted in the name of liberty the system of theology which we happen to approve.”

As chief justice, Rehnquist was able to further advance his views on federalism and limited judicial power. In United States v. Lopez (1995), Rehnquist wrote for a 5–4 majority striking down Congress’s assertion of authority to legislate under the commerce clause for the first time since the 1930s. The Court held, not unreasonably, that Congress must limit itself to regulating truly commercial activity when acting pursuant to the commerce clause and that an act forbidding carrying guns near schools did not fall within Congress’s power. Likewise, in United States v. Morrison (2000), Rehnquist authored the majority opinion striking down the Violence Against Women Act of 1994 for the same reason. In so doing, the Court brushed off congressional findings that such violence did adversely affect commerce.

In some cases, Rehnquist seemed to moderate positions he had held when he first came on the Court. For example, in Dickerson v. United States (2000) he abandoned his long quest to overrule Miranda and authored a majority opinion to uphold it, over an outraged dissent by Justice Scalia. However, this probably had more to do with resistance to Congress’s attempt to “overrule” Miranda than with any newfound fondness for the holding of that case, and he soon agreed with subsequent opinions that significantly limited Miranda’s impact. Similarly, in Nevada Department of Human Resources v. Hibbs (2003) he enhanced federal power over the states by authoring an opinion (over the dissents of Scalia, Clarence Thomas, and Anthony Kennedy) holding that Congress may require states to grant “family leave” to their employees by acting under the Fourteenth Amendment. It cannot be known whether Dickerson and Hibbs represent Rehnquist’s true beliefs or efforts to limit the damage done by decisions with which he would have preferred to disagree but could not get a majority to go that way. In any event, his opinions for the majority in both cases showed an increased willingness to work toward consensus and compromise.

Perhaps the most notable decision of Rehnquist’s tenure as chief justice was Bush v. Gore (2000), which effectively decided the 2000 presidential election for George W. Bush by stopping the recount of contested ballots in Florida. Cass R. Sunstein of the University of Chicago Law School deemed this decision “a far more radical intervention into the political processes than anything dared by the Warren Court.” Rehnquist seemed to defend this intervention of the Court into the political process in a speech referring to the Court’s decision concerning the controversial 1876 presidential election: “There is a national crisis, and only you can avert it. It may be very hard to say no.”

In an interview after he became the chief justice, Rehnquist stated that his goal was to be remembered as a good administrator, “to run a relatively smoothly functioning Court.” In this he clearly succeeded, being admired even by his political opponents. Justice Marshall deemed him a “Great Chief Justice,” and Justice Brennan described him as “the most all-around successful Chief” he had known, including Chief Justice Warren. The reasons for Rehnquist’s success related to his agreeable personality; his fairness in assigning opinions, based primarily on whether a justice was up to date on assignments; and the fact that he ran disciplined oral arguments, not allowing advocates at argument to exceed their allotted time. Likewise, at the conference where the Court meets to discuss recently heard cases, he ran a tight ship, giving each justice a chance to state his or her views in order of seniority. He did not allow debate among the justices, being of the opinion that, since most had already made up their minds, extended discussion was a waste of time and source of rancor.

Since assigning opinions and presiding over the conference and oral argument are the extent of a chief justice’s formal powers, it is understandable that Brennan and Marshall might consider him a great chief justice while generally condemning his legal positions as misguided and even dangerous. Another attribute a chief justice might possess is the ability to sway other justices toward his position. Rehnquist, with his keen intelligence and personableness, was surely as likely as any chief justice to have been successful in this endeavor. He had a knack for explaining his views in ways that made them seem eminently reasonable. However, he simply did not believe in politicking his fellow justices, preferring to confine his arguments to the logic of the opinions he drafted. This was probably a shrewd decision, since any attempt to engage in arm twisting likely would only have irritated his fiercely independent colleagues without producing the desired votes.

After Rehnquist’s death at his home from complications of thyroid cancer, he was succeeded as chief justice by John G. Roberts, Jr., who had served as a law clerk for Rehnquist in 1980. Rehnquist is buried in Arlington National Cemetery. He will be remembered for leading the Court away from the activism of the Warren Court and for enhancing the power of the states in the federal system. As Rehnquist himself put it, “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.”

Rehnquist’s book about the Supreme Court, including some autobiographical materials concerning his clerkship with Justice Jackson, is The Supreme Court (2002). For a detailed analysis of his legacy in constitutional law, see Craig Bradley, ed., The Rehnquist Legacy (2006). For an analysis of the Supreme Court under Rehnquist, see Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2005). For reminiscences about Rehnquist by his former clerks, see “Hail to the Chief,” ABA Journal (Nov. 2005): 42. Obituaries are in the New York Times and Washington Post (both 4 Sept. 2005).

Craig Bradley

William Hubbs Rehnquist

views updated May 17 2018

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

views updated May 23 2018


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

views updated May 11 2018

Rehnquist, William Hubbs

Although some Supreme Court justices have not shared Rehnquist's staunchly conservative views, they generally respected his efficiency, quiet humor, and fairness. He served on the Supreme Court for more than 30 memorable years.

The son of a paper salesman, Rehnquist grew up in suburban Shorewood, Wisconsin. Since his family worshipped Republican President Herbert Hoover, William had little affection for Democratic President Franklin Delano Roosevelt, who was president for much of his childhood. When one of William's elementary school teachers inquired about his career goals, he answered that he wanted to change the government.

After completing high school in Milwaukee, Rehnquist served in the United States Army Air Force in the middle 1940s. Like many other American men who fought in World War II, Rehnquist used the GI Bill to attend college. He enrolled in Stanford University and graduated with both a bachelor of arts (Phi Beta Kappa) and master of arts in political science in 1948. Two years later, Harvard University conferred upon him another master of arts in government. He returned to Stanford University to study law. In 1952, he received a law degree and graduated first in his class. Considered brilliant by his instructors and classmates, Rehnquist also acquired a reputation as an conservative student.

One of Rehnquist's Stanford professors arranged for Supreme Court Justice Robert H. Jackson to interview Rehnquist for a clerkship, and he clerked for Jackson in 1952 and 1953. After his clerkship ended, Rehnquist married Natalie Cornell. The couple moved to Phoenix, Arizona, where he worked in the law firm of Evans, Kitchel & Jenckes from 1953 to 1956. Subsequently, he formed a law partnership with Keith Ragan. Gradually, Rehnquist allied himself with many conservative Republican politicians in Arizona. He often criticized the Supreme Court's liberalism, attributing it partly to the leftist tendencies of the justices' law clerks. He particularly disliked the reasoning of Justices William O. Douglas, Earl Warren, and Hugo L. Black for what he perceived as their interpreting the U.S. Constitution too loosely to reflect their own biases.

After dissolving his partnership with Ragan, Rehnquist became a partner in the law firm of Cunningham, Carson, & Messenger. In 1958, he also became a special Arizona state prosecutor, and part of his work involved charging many state officials with highway frauds.

Rehnquist's friendship with conservative Richard Kleindienst, the national field director of the presidential campaigns of Barry Goldwater in 1964 and Richard Nixon in 1968, proved important. In February 1969, soon after Kleindienst was appointed deputy attorney general in President Nixon's administration, Kleindienst arranged for Rehnquist to become assistant attorney general in charge of the office of legal counsel.

In October 1971, President Nixon nominated Rehnquist to fill one of two vacancies on the Supreme Court. Democratic Senators Birch Bayh and Edward M. Kennedy were initially suspicious of Rehnquist's conservatism. Many labor leaders and liberal spokespersons also op-posed him for what they perceived as his lack of concern for civil rights. A Rehnquist memorandum in favor of continuing the separate but equal doctrine for public schools was discovered, written when he clerked for Justice Jackson. In effect, Rehnquist's memo endorsed the racial segregation of public schools. Rehnquist's opponents also learned that in 1964 he had taken a stand against public accommodations legislation in Phoenix, and in 1967 Rehnquist had disputed an integration plan for the Phoenix high schools.

Rehnquist confronted these accusations in testimony before the Senate Judiciary Committee inNovember 1971. He said he now endorsed the public accommodations law that he had formerly contested. Rehnquist denied that he had ever supported school segregation by saying his memorandum on the topic reflected Justice Jackson's beliefs, not his own. Along those lines, Rehnquist argued that several of his former positions reflected his status as a government advocate; personally, he had not always agreed with those views. Although Rehnquist's critics still opposed his nomination for the Supreme Court, the Senate in December 1971 voted 68 to 26 to confirm it. Nearly every Republican in the Senate voted for him, and even some of the Democrats that did not agree with his opinions thought he was qualified to serve on the Supreme Court.

In his first years on the Court, Rehnquist often disagreed with the other justices. Unlike the others, he did not believe the Equal Protection Clause of the Fourteenth Amendment generally pertained to state-sponsored discrimination of children born out of wedlock, resident aliens, and women; he believed the Equal Protection Clause concerned predominantly racial discrimination. Rehnquist dissented on Roe v. Wade, a landmark 1973 decision permitting women the right to have abortions. He also disagreed with the majority opinion in United Steel Workers of America v. Weber (1979), in which the Supreme Court declared that discrimination against whites was not prohibited by the Civil Rights Act of 1964.

In the middle 1970s, Rehnquist wrote many majority opinions that undermined the power of the federal government in favor of states' rights. One of the most memorable of these decisions evolved out of National League of Cities v. Usery, in which Rehnquist interpreted the Tenth Amendment to void a federal statute that controlled state government employees' earnings and hours.

When Chief Justice Warren Burger declared his resignation in 1986, President Reagan nominated Rehnquist to replace him. Senator Edward Kennedy and other liberals opposed his nomination for many of the same reasons that they had opposed Rehnquist's nomination to the Supreme Court in 1971. Many of them criticized his record on civil rights and race and considered him a right-wing fanatic. However, no significant charges of misconduct were brought against Rehnquist in his term as an associate justice. After much debate, the Senate confirmed him as chief justice in September 1986, by a vote of 65 to 33.

After Rehnquist became chief justice, the Court often supported the powers of the states over the federal government. Another Supreme Court trend was a smaller caseload; in 1986, 175 cases were argued before the Court; in 1995, that number had declined to 90. Chief Justice Rehnquist advocated similar views to the ones he expressed as an associate justice, although his image as the lone dissenter of the Court was mostly gone. While Rehnquist's vision impacted on the direction of the Supreme Court, his vote was usually not the pivotal one in close decisions.


Graduated from Stanford University Law School
Clerked for Supreme Court Justice Robert H. Jackson
Practiced private law in Arizona
Became a special Arizona state prosecutor
Became assistant attorney general in charge of the office of legal counsel
Richard Nixon appoints Rehnquist to the Supreme Court
Ronald Reagan nominates Rehnquist to replace retiring Chief Justice Warren Burger
Rehnquist dies at age 80 from thyroid cancer

In the 1990s, Rehnquist voted against the majority opinion in two extremely significant Court decisions. The first was Planned Parenthood v. Casey, which reaffirmed Roe v. Wade, thus protecting women's right to abortions. The second was Romer v. Evans, in which the Court voided an antigay Colorado state constitutional amendment. In 1996, Rehnquist clashed openly with Republicans over their criticism of President Clinton's judicial appointments. In the early months of 1999, Rehnquist presided over the impeachment trial of President Bill Clinton in the U. S. Senate.

In January 2001, without addressing the Supreme Court's election ruling (5-4 in favor of Bush after the Supreme Court had to step in after George W. Bush contested the Florida court's ruling), Rehnquist wrote, "Despite the seesaw aftermath of the presidential election, we are once again witnessing an orderly transition of power from one presidential administration to another…. This presidential election, however, tested our constitutional system in ways it has never been tested before. The Florida state courts, the lower federal courts and the Supreme Court of the United States became involved in a way that one hopes will seldom, if ever, be necessary in the future."

Though many speculated for years as to when he would retire, he continued to work at home up until a few days before his death from thyroid cancer in September 2005. He was 80 years old.

Rehnquist, William Hubbs

views updated May 11 2018

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.

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