Rehnquist, William H. (1924–) (Update 1)

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REHNQUIST, WILLIAM H. (1924–) (Update 1)

William H. Rehnquist grew up in Milwaukee and was educated at Stanford, Harvard, and Stanford Law School. He served as a law clerk to Supreme Court Justice robert h. jackson and then entered into private practice in Phoenix. In 1969, through his association with Deputy Attorney General Richard Kleindienst and work as a Republican party official in Phoenix, he went to Washington as Assistant Attorney General for the Office of Legal Counsel. On January 7, 1972, he, along with lewis f. powell, was sworn in as an Associate Justice of the Supreme Court. On September 26, 1986, he was sworn in as chief justice of the United States, only the third sitting Justice to be so elevated. Despite widespread disagreement with Rehnquist's views among legal academics, there is little dispute that he is among the ablest Justices who have ever served on the Court.

Justice Rehnquist's vision of the nation's constitutional structure, emphasizing the words and history of that document, is expressed in three doctrines: strict construction (of both the Constitution and of statutes), judicial restraint, and federalism. He summarized this vision in a 1976 speech at the University of Texas:

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 stated, dissenting, in trimble v. gordon (1977), neither the original Constitution nor the civil war amendments 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."

During his early years on the Court, despite the presence of three other Republican appointees, Justice Rehnquist was often in lone dissent, espousing a view of states ' rights and limited federal judicial power that many regarded 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 members of the Court that the equal protection clause of the fourteenth amendment applied to, and required heightened scrutiny of, state-sponsored discrimination against illegitimate children, resident aliens, and women, respectively. Indeed, he insisted that the equal protection clause had only marginal application beyond cases of racial discrimination. In the area of criminal procedure Rehnquist urged that the Court overrule mapp v. ohio (1961), which applied the exclusionary rule to the states. Rehnquist also seemed hostile to miranda v. arizona (1966), though he never directly argued that it should be reversed. Still, even in his early years on the Court, Justice Rehnquist was less likely to be in dissent than the liberal Justices william o. douglas, william j. brennan, and thurgood marshall; and the ideas expressed in some of Rehnquist's early dissents, such as in cleveland board of education v. lafleur (1974) and Fry v. United States (1975) were influential in majority opinions in the years to come.

The 1975 term saw Justice Rehnquist come into his own as the leader of the (ever-shifting) conservative wing of the Court. In that term he wrote for the Court in paul v. davis (1976), holding that reputation, standing alone, was not a constitutionally protected "liberty" interest subject to vindication under the guarantee of procedural due process of law;in national league of cities v. usery (1976), holding that the tenth amendment limited Congress's power under the commerce clause to regulate the states; and in rizzo v. goode (1976), holding that "principles of federalism" forbade federal courts from ordering a restructuring of a city police force in response to constitutional violations. In National League of Cities, Rehnquist used an expansive reading of the Tenth Amendment to strike down a federal statute that regulated the wages and hours of state government employees, although such regulation was otherwise concededly within Congress's commerce power. The opinion showed that when faced with a choice between judicial restraintstrict constructionism and states' rights, Justice Rehnquist was prepared to defend the latter aggressively. However, the potential significance of the first decision limiting Congress's use of the commerce power since 1936 was eroded by subsequent Court majorities, first refusing to follow, and then overruling, National League of Cities in garcia v. san antonio metropolitan transit authority (1985). Despite Justice Rehnquist's prediction in dissent that this issue would return to haunt the Court, it seems unlikely that the Court will really disable Congress from establishing national control of virtually any area in which Congress chooses to assert itself. Whatever the political leanings of the other Justices, a majority generally seems to believe that the strong national-weak state governmental system is the proper direction for the country.

When dissenting, Rehnquist makes his most telling points in opposing the majority's efforts to enact "desirable" social policy with little support from the constitutional or statutory provisions that they purport to be interpreting. An example is united steel workers of america v. weber (1979). In that case, Kaiser Aluminum Company and the United Steelworkers had devised a "voluntary" affirmative action plan under which half of available positions in an on-the-job training plan would be reserved for blacks. Weber, excluded solely because he was white, filed suit based on Title VII of the civil rights act of 1964. The statute provides that "it shall be unlawful for an employer … to fail or refuse to hire … any individual … because of such individual's race." The statute goes on to say that its provisions are not to be interpreted "to require any employer … to grant preferential treatment to any individual or group." Moreover, as a unanimous Court had recognized only three years before in McDonald v. Santa Fe Trail Transportation Co. (1976), the "uncontradicted legislative history" showed that Title VII "prohibited racial discrimination against the white petitioners … upon the same standards as would be applicable were they Negroes." Nevertheless, in Weber, a5–2 majority, reversing the lower courts, found that discrimination against whites was not within the "spirit" of Title VII and consequently not prohibited. In a bitter dissent, Justice Rehnquist accused the majority of Orwellian "new-speak" and concluded that "close examination of what the Court proffers as the spirit of the Act reveals it as the spirit of the present majority, not the 88th Congress." Similarly in roe v. wade (1973), where the majority based a woman's right to an abortion on a constitutional right of 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." Whatever the wisdom of the policies announced in these cases, it is difficult to disagree that Rehnquist's reading of the textual material in question was the more accurate one.

It is ironic that Rehnquist, often condemned as a right-wing ideologue was, in Weber and Roe, as in many other cases, advocating a view of the Court's role that had previously been vigorously advanced by the progressive members of the Court. In morehead v. new york ex rel. tipaldo (1936), for example, the dissenting opinion of Justice harlan f. stone, joined by Justices 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, or is better even than blind operation of uncontrolled economic forces. The legislature must be free to choose unless government is rendered impotent. The Fourteenth 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."

In criminal procedure, Rehnquist's views are driven by the same narrow view of the role of courts in a tripartite federal system, and he frankly admits that his goal when he came on the Court was to "call a halt to a number of sweeping rulings of the Warren Court in this area." In this objective he generally was joined by the other appointees of richard m. nixon and by Justice byron white. Consequently, the 1970s and 1980s saw a series of decisions aimed at making it easier for the police to investigate crimes and harder for defendants to upset their convictions because of police investigatory errors. For example, in Rakas v. Illinois (1978) the Court, per Rehnquist, made it more difficult for a defendant to establish standing to litigate search and seizure violations; in united states v. robinson (1973) the scope of police searches incident to arrest was expanded; and in United States v. Leon (1984) the Court, per Justice White, established a good faith exception to the exclusionary rule in search warrant cases. However, neither Rehnquist nor any of his fellow conservatives sought to undercut the fundamental rights to counsel, appeal, and trial by jury that had been applied to the states by the Warren Court. In a 1985 interview, despite the feeling of most Court watchers that the burger court had not dismantled the major criminal procedure protections of the Warren Court, including the miranda rules and the exclusionary rule, Justice Rehnquist pronounced himself satisfied that the law was "more evenhanded now than when I came on the Court."

If Rehnquist has not been successful in exempting states from congressional control, he has frequently prevailed in his efforts to exempt state courts from federal court interference. To do this, he has taken the 1971 decision in younger v. harris, which counseled restraint by federal courts in enjoining ongoing state criminal proceedings, and extended it greatly. In Rizzo and in Real Estate Association v. McNary (1981) he held that "principles of federalism" limited a federal court's ability to enjoin not just the judicial branch but the executive branch of state governments as well and that this comity limitation was not confined to criminal proceedings. Nor, as he held in Doran v. Salem Inn, Inc. (1975), was it necessary that a state criminal proceeding predate a federal action for the federal action to be barred by principles of comity.

Similarly, in the area of federal habeas corpus for state prisoners, Rehnquist and his conservative colleagues have advanced the dual goals of limiting federal court interference with state court adjudications and enhancing the finality of criminal convictions. The most significant holding in this line of cases is the decision in wainwright v. sykes (1977). In this case, Rehnquist, writing for a six-Justice majority, held that a defendant's failure to raise an issue at the appropriate stage of a state criminal proceeding barred the federal courts from considering that issue later under habeas corpus, absent a showing by the defendant of good cause for the failure and prejudice to his case. Sykes thus largely overruled fay v. noia (1963), which had allowed new issues to be raised on federal habeas corpus unless they had been deliberately bypassed by the defendant in state proceedings. Sykes represented a significant diminution of the power of federal courts to interfere with state convictions. The trend continued in 1989 in the significant case of Teague v. Lane, authored by Justice sandra day o'connor, where the Court held that "new" rules of criminal procedure generally should not apply retroactively on habeas corpus to defendants whose state convictions had become final before the new law was established. In Butler v. McKellar (1990), Justice Rehnquist defined "new" broadly so as to make it very difficult for state prisoners to obtain federal habeas relief.

Consistent with his stance on federalism and judicial restraint, Rehnquist is the Court's leading advocate of a restrictive interpretation of the establishment clause of the first amendment. He set forth his view in detail in a dissenting opinion in wallace v. jaffree (1985), where the majority struck down Alabama's statutorily required moment of silence for "meditation or voluntary prayer" in public schools. Rehnquist rejected the "wall of separation between church and state" principle of everson v. board of education (1947), arguing that history did not support this rigid interpretation of the First Amendment. According to Rehnquist, james madison viewed the purpose of the establishment clause as simply "to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects. He did not see it as requiring neutrality on the part of the government between religion and irreligion." Consequently, Rehnquist would have found no defect in a state statute that openly endorsed prayer, much less a "moment of silence."

In a similar vein, in first national bank v. bellotti (1978), Rehnquist, in a sole dissent, refused to recognize a First Amendment commercial speech right for corporations, and in virginia state board of pharmacy v. virginia consumer council (1976) he refused to recognize a First Amendment right of consumers to receive commercial information. In short, in the First Amendment area, as in all others, he would generally give the legislative branch, whether state or federal, greater freedom to plot its own course than his colleagues would.

When, in June of 1986, warren burger announced his resignation as Chief Justice and President ronald reagan nominated Rehnquist as his replacement, there was a fire-storm of protest among liberals. Senator Edward Kennedy denounced Justice Rehnquist as having an "appalling record on race" and liberal columnists branded him a right-wing extremist. A concerted effort was undertaken to find something in his past that might provide a basis for defeating the nomination. Assorted allegations were raised concerning contacts with black voters when he was a Republican party official in Phoenix, the handling of a family trust, a memo he had written to Justice Jackson as a law clerk urging that the separate but equal doctrine not be overruled in brown v. board of education of topeka (1954,1955), and a racially restrictive covenant in the deed to his Phoenix house. The Senate perceived that these allegations were either unproven or, if true, were "ancient history" and irrelevant to his fitness for the post of Chief Justice. Significantly, no serious charge of misconduct was shown as to Rehnquist's fourteen and a half years as an Associate Justice on the Supreme Court. In the end, after much sound and fury, he was confirmed by a vote of 65–13.

If the 1975 term saw Rehnquist "arrive" as a major force on the Court, it was the 1987 term, his second year in the post, that saw him mature as Chief Justice. In a speech given in 1976 he had discussed the role of Chief Justice, citing charles evans hughes as his model: "Hughes believed that unanimity of decision contributed to public confidence in the Court.… Except in cases involving matters of high principle he willingly acquiesced in silence rather than expose his dissenting views.…Hughes was also willing to modify his own opinions to hold or increase his majority and if that meant he had to put in disconnected thoughts or sentences, in they went."

Following his own advice, in the 1987 term he achieved a high level of agreement with his fellow Justices (ranging from 57.6 percent with Justice Thurgood Marshall to 83.1 percent with Justice anthony kennedy). His administrative abilities in the 1987 term won the praise of Justice harry blackmun, who deemed him a "splendid administrator in conference." For the first time in years, the Court concluded its work prior to July 1. During that term, Rehnquist showed that he could be flexible, joining with the more liberal Justices to subject the dismissal of a homosexual CIA agent to judicial review and to support the First Amendment claims of Hustler magazine to direct off-color ridicule at a public figure. Most significantly, in Morrison v. Olson (1988) Rehnquist wrote for a 7–1 majority upholding the office of independent counsel against a challenge by the Reagan administration. In a decision termed an "exercise in folly" by the lone dissenter, Justice antonin scalia, Rehnquist held that the appointments clause was not violated by Congress's vesting the power to appoint a special prosecutor in a "Special Division" of three United States Court of Appeals judges. Nor did the act violate separation of powers principles by impermissibly interfering with the functions of the executive branch. While the act can be shown to have theoretical flaws, Rehnquist could not be faulted if he perceived that a truly independent prosecutor was a necessary check on the many abuses of executive power, including criminal violations, that were occurring during the latter years of the Reagan administration and in upholding a check on those abuses in an opinion that gained the concurrence of a substantial majority of his colleagues. Rehnquist's performance during the 1988 term led the New York Times, which had vigorously opposed his elevation to Chief Justice, to praise him with faint damnation. "While he is certainly no liberal, or even a moderate, his positions are not always responsive to the tides of fashionable opinion among his fellow political conservatives."

Indeed, while Rehnquist's judicial philosophy is undoubtedly born of a staunch political conservatism, the principles of federalism and strict construction will frequently prevail even when they lead to a "liberal" result. For example, in pruneyard shopping center v. robins (1980) he wrote the opinion upholding state constitutional provisions that allowed political demonstrators to solicit signatures for a petition in a shopping center. He recognized "the authority of the state to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." Similarly, in Hughes v. Oklahoma (1979) he dissented when the Court invalidated a state's attempt to preserve its wildlife. And, in Pennell v. City of San Jose (1988), he upheld the city's rent control ordinance in the face of a due process challenge by landlords. In numerous criminal cases, such as United States v. Maze (1974) and Ball v. United States (1985), he has voted to reverse criminal convictions on the ground that the government had failed to prove that the defendant's conduct had violated the terms of the (strictly construed) statute.

But if the 1987 term showed that Rehnquist could be flexible as Chief Justice, that term and the 1988 term also had him, in most cases, leading the Court in a conservative direction. In a series of close cases decided in the 1987 term, ranging across the landscape of the bill of rights, the Court denied an equal protection challenge to user fees for bus transportation to school, denied a claim by Indians that a Forest Service logging road through a national forest would interfere with their free exercise of religion, denied food stamps to striking workers, allowed censorship of a school newspaper, upheld federal tort immunity for defense contractors, and allowed illegally discovered evidence to be used against a criminal defendant under the "independent source" exception to the exclusionary rule.

The 1988 term demonstrated that Rehnquist was still prepared to be flexible. For example, in City of Canton v. Harris he joined an opinion by Justice White that held that a city could be liable for damages under section 1983, title 42, u. s. code for poor training of police officers and that a new trial was not barred; Justices O'Connor, Kennedy, and Scalia, on the other hand, wanted to dismiss the plaintiff's case because the plaintiff could not have met the "deliberate indifference" standard of proof. Such flexibility was rarely called for during the 1988 term, however, and the conservatives stayed together most of the time. The leading case of the term was webster v. reproductive health services (1988). Here Chief Justice Rehnquist and four others upheld a Missouri statute that forbade public funding and the use of public hospitals for abortions. The decision was consistent with Rehnquist's views of state's rights and strict construction of the federal Bill of Rights. Rehnquist observed that "our cases have recognized that the due process clauses generally confer no affirmative right to government aid, even where such aid may be necessary to some life, liberty or property interests of which the government itself may not deprive the individual." Because a state is under no constitutional obligation to provide public hospitals at all, it is free to condition their use however it wishes. This notion, that beneficiaries of public largess must accept the "bitter [restrictions] with the sweet" has been a hallmark of Rehnquist's jurisprudence since he first expressed it in arnett v. kennedy in 1974. However, Rehnquist (at least temporarily) was unable to convince Justice O'Connor that it was time to abandon the "rigid" framework of Roe v. Wade that gave a woman an absolute right to an abortion during the first trimester of pregnancy. This failure resulted even though he had drafted a compromise that continued to recognize a limited constitutional right to abortion.

Despite the current national debate on abortion, it seems unlikely that the country in the foreseeable future will be confronted with a constitutional problem of the magnitude of the legal discrimination against blacks (and the closely related problem of police abuse of the rights of criminal suspects) that faced the Warren Court. Consequently, it is also unlikely that the judicial activism displayed by the Warren Court to deal with these problems will seem as morally necessary or politically desirable in the future. Thus, while Justice Rehnquist's vision of a vigorous Tenth Amendment checking Congress's power visà-vis the states seems unlikely to prevail in the long term, his view of a more limited role for the federal Constitution, and hence for the federal courts, probably will be the wave of the future. Having reached its highest point in the 1960s, the "Rights Revolution"—already dying during the Burger Court years—terminated with the appointment of William Rehnquist as Chief Justice of the United States; it probably will not recur after he steps down.

Craig M. Bradley

(see also: Conservatism; Rehnquist Court.)


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Davis, Sue 1989 Justice Rehnquist and the Constitution. Princeton, N.J.: Princeton University Press.

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Rehnquist, William H. 1976 Chief Justices I Never Knew. Hastings Constitutional Law Quarterly 3:637.

——1976 The Notion of a Living Constitution. Texas Law Review 54:693–706.

——1987 The Supreme Court: How It Was, How It Is. New York: Morrow.

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