Rehnquist, William H. (1924–)

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William Rehnquist joined the Supreme Court in 1971 at age forty-seven. He had been a clerk to Justice robert h. jackson and a practitioner in Arizona. At the time of his appointment, he was the assistant attorney general for legal counsel—as President richard m. nixon described the post on appointing him, "the President's lawyer's lawyer."

Brilliant, charming, and deeply conservative, he has become the intellectual leader of the court—a fact that is not obvious from the statistics. Many terms he has dissented more than any other Justice, often alone. Rehnquist's influence lies in setting the terms of the debate. His dissents mark the path for future developments. His majority opinions have been unusually influential, in part because Chief Justice warren e. burger regularly assigns him the most difficult and interesting cases, and in part because the opinions articulate approaches that have substantial general importance.

Rehnquist follows a structural approach in which the original understanding and the text of the Constitution assume great importance. The states play a substantial role in this structure, and a vision of an allocation of functions between state and federal governments lies at the center of Rehnquist's thought. He takes seriously the proposition that the federal government has limited powers and that the states hold sway over substantial fields. The Justice also has a view of the allocation of powers within the federal government in which judges play only a limited role. Judges may enforce some explicit guarantees, such as the right to freedom of speech, but Rehnquist sees their more important function as enforcing the decisions of the political branches rather than questioning them. Judges must patrol the allocation of powers among other contending claimants, but once a political branch acts within its capacity, the decision, no matter how unwise, binds the courts.

This highly deferential approach follows from a belief that the Framers of the Constitution settled little but governmental structure, leaving the rest to future generations. Judges have no authority to restrict the powers of the political branches. They cannot invoke a decision by the Framers or political branches allocating power to the courts, and they cannot point to any other source of authority. Rehnquist is a moral skeptic and so rejects arguments that the Constitution authorizes judges to insist that other branches keep up with evolving notions of decent conduct; he believes that only the political process can define decency.

Justice Rehnquist outlined his approach in a solitary dissent to trimble v. gordon (1977). The majority held that a statute discriminating against illegitimate children violated the equal protection clause of the fourteenth amendment. Calling that clause a "classic paradox" that "makes sense only in the context of a recently fought Civil War," Rehnquist continued:

In the case of equality and equal protection, the constitutional principle—the thing to be protected to a greater or lesser degree—is not even identifiable from within the four corners of the Constitution. For equal protection does not mean that all persons must be treated alike. Rather, its general principle is that persons similarly situated should be treated similarly. But that statement of the rule does little to determine whether or not a question of equality is even involved in a given case. For the crux of the problem is whether persons are similarly situated for purposes of the state action in issue.

Rehnquist therefore finds the constitutional guarantee of equality empty and thus vulnerable to being made a mere vessel for the beliefs of modern judges about what things should count as the pertinent similarities and differences. In his view, however, the Constitution does not resolve that question, which is at root political, to be resolved by political processes. The equal protection clause is limited to the civil war concern, race. Within that field the prohibition is absolute, and race is a forbidden classification. Rehnquist has opposed governmental racial distinctions of all sorts, preferential "set-asides" for construction work, which the majority approved in fullilove v. klutznick (1980), and preferences for private employment, which were sustained in united steelworkers v. weber (1979), as well as those stigmatizing blacks.

He applies the same approach to almost every other aspect of the Constitution. The first amendment disables government from stopping speech—the subject debated by the Framers—but does not require government to facilitate speech, for example, by creating rights of access to information. Judicial expansion of the amendment's core meaning is unauthorized. A judge may not properly pursue the principles or values that underlie the document, because every principle has its limit, and the Constitution left adjustments to the political branches. As Rehnquist wrote in an article published in 1976: "Even in the face of a conceded social evil, a reasonably competent and reasonably representative legislature may decide to do nothing. It may decide that the evil is not of sufficient magnitude to warrant any governmental intervention. It may decide that the financial cost of eliminating the evil is not worth the benefit which would result from its elimination. It may decide that the evils which might ensue from the proposed solution are worse than the evils which the solution would eliminate." The judge must accept the political answers to these problems.

This limitation does not imply judicial passivity. The judge must rigorously enforce any actual constitutional decisions to remove issues from the political process. The bill of rights contains some of these decisions, but the most important are those concerning the structure of government. Rehnquist is perhaps best known for his enforcement of principles of federalism that cannot be found in the constitutional text. Writing for a bare majority in national league of cities v. usery (1976), he concluded that the structure of the Constitution withheld from Congress any power to regulate the operation of "states as states." As a result, the Court held, Congress could not require state and local governments to pay the minimum wages applicable to private parties. The Justice also has read into many statutes limits founded on a perceived need to maintain the role of states as coordinate centers of power.

But decisions based on the structure of the Constitution do not always favor the states. Often Rehnquist has joined holdings under the commerce clause restricting the powers of states to levy discriminatory taxes or otherwise hinder interstate commerce, even though neither legislation not any clear textual command prohibits this discrimination. He wrote the court's opinion in fitzpatrick v. bitzer (1976), holding that in the exercise of its power under the Fourteenth Amendment, Congress may authorize suits against the states, even though the eleventh amendment appears to deprive federal courts of jurisdiction to entertain such suits.

The allocation of powers within the federal government also has been a theme of Rehnquist's work. He has attempted to revive the "antidelegation" doctrine, arguing that Congress may not grant uncertain decision-making powers to the executive branch. He joined the Court's opinion in buckley v. valeo (1976), invalidating Congress's effort to appoint officers to administer the election laws, characterizing that effort as an intrusion on the executive power. And he supplied the theory and vote necessary to strike down in northern pipeline construction corp. v. marathon pipe line co. (1982) a grant of judicial power to bankruptcy judges who lacked life tenure of office.

Part of Rehnquist's influence among the Justices comes from his distinctive style. Most judicial opinions come in shades of gray, following a dull formula notable only for turgid prose and abundant footnotes. Justice Rehnquist's opinions come closer to lavender than gray. They are relatively short and lively. One began with a limerick. Rehnquist often uses colorful (if strained) metaphors. The opinions are less copiously documented than those of his colleagues, but not because he does not know the references—they appear in the appropriate quantities in his articles. The Justice has simply chosen to write in an entertaining style. His opinions are read, and being read is the first step in being influential.

Some critics, including David L. Shapiro, have accused Rehnquist of intellectual dishonesty, because he is willing to distinguish a case on a marginally relevant basis, or to purport to honor precedent while disavowing the earlier case's rationale. Timid or weak Justices routinely treat precedents so, but Rehnquist is neither timid nor weak. That is why his nimble treatment of precedent is troubling. No one can attribute his conduct to inadvertence or to the work of a law clerk.

Justice Rehnquist is not always cavalier in distinguishing or narrowing unpleasant precedents. He will attack earlier cases openly in separate or dissenting opinions, only to distinguish them in opinions for the Court. His opinion in National League of Cities purported to preserve some cases he had attacked, in solitary dissent, a year before, in Fry v. United States (1975). Part of his approach to precedent arises from his understanding that the author of a majority opinion speaks not for himself but for the Court as institution. He therefore tries to preserve precedents with which he does not agree, by flimsy distinctions if necessary. The result may seem contrived, but it is often essential to the functioning of the Court.

The ultimate test of honesty is whether a Justice faithfully distinguishes his constitutional views from his personal ones. Most Justices see little difference, leading to the conclusion that the Constitution follows the personal view rather than the reverse. Yet Rehnquist, who generally opposes governmental control of economic affairs, believes that the Constitution allows the political branches to establish and maintain a welfare state with extensive economic regulation. He follows his jurisprudence to its logical conclusions. Though he supports property rights, he wrote an opinion in pruneyard shopping center v. robins (1980) sustaining the authority of a state to restrict those rights in the interest of fostering political speech with which the property owner disagreed.

In 1986 President ronald reagan nominated Rehnquist to succeed Warren Burger as Chief Justice of the United States. One may expect Chief Justice Rehnquist to retain the same coherent picture of a government in which judges police structure rather than substance.

Frank H. Easterbrook


Powell, Jeff 1982 The Compleat Jeffersonian: Justice Rehnquist and Federalism. Yale Law Journal 91:1317–1370.

Rehnquist, William H. 1976 The Notion of a Living Constitution. Texas Law Review 54:693–706.

Shapiro, David L. 1976 Mr. Justice Rehnquist: A Preliminary View. Harvard Law Review 90:293–357.