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Rehnquist, William H. (1924–) (Update 2)

REHNQUIST, WILLIAM H. (1924–) (Update 2)

William Hobbes Rehnquist served as an Associate Justice of the Supreme Court and later ascended to the position of chief justice of the United States. Rehnquist was born in 1924 outside of Milwaukee, Wisconsin. After initially attending Kenyon College and serving in the U.S. Army for three years during world war ii, he received his undergraduate degree from Stanford University in 1948. Prior to attending law school, Rehnquist then received an M.A. in political science from Stanford in 1949, followed by an M.A. in government from Harvard in 1950. In December, 1951, he was graduated first in his class from Stanford Law School. Rehnquist then served as a law clerk to Justice robert h. jackson, thereafter entering private practice in Phoenix, Arizona. During his years in Phoenix, Rehnquist was an outspoken, politically active conservative, criticizing the warren court for "extreme solicitude for the claims of Communists and other criminal defendants" and at one point opposing open housing laws as an unjustifiable infringement on private property rights. When richard m. nixon was elected President, he chose Rehnquist to head the Office of Legal Counsel in the U.S. Department of Justice. In that position, Rehnquist often served as the administration's spokesman on controversial legal issues.

After the resignation of the second john marshall harlan and hugo l. black in 1971, Nixon nominated Rehnquist and lewis f. powell to serve as Associate Justices. Rehnquist's nomination was by far the more controversial of the two; indeed, it set off a bitter struggle over confirmation in the U.S. senate. No one questioned Rehnquist's intellectual capacity; however, Senate liberals were disturbed by his record on civil rights. In particular, they focused on two points. The first was a memorandum that Rehnquist had written for Justice Jackson in connection with brown v. board of education (1954) which argued that plessy v. ferguson (1896) "was right and should be reaffirmed." The second was Rehnquist's participation in a Republican poll-watching project that challenged voting credentials in predominantly African American and Hispanic neighborhoods in Phoenix. Rehnquist responded that Jackson himself had requested a defense of Plessy, and that he had engaged in no wrongdoing during the poll-watching project. Ultimately, Rehnquist was confirmed on a 68–26 vote.

In personal terms, Rehnquist soon became known on the Court for his friendliness, informality, and irreverent sense of humor. From a jurisprudential perspective, it quickly became clear that he would vindicate the fears of his liberal detractors and the hopes of his conservative supporters. During the burger court era, Rehnquist was the most conservative Justice on the Court, and also the most able of the four Nixon appointees. His opinions reflect a technical mastery of the law, and are marked by a forceful writing style that at times employs colorful, emotionally charged imagery to underscore distaste for the positions of his more liberal colleagues.

Because of these qualities, Rehnquist was chosen by President ronald reagan to succeed warren e. burger as Chief Justice in 1986. The confirmation process reprised the political struggle that had taken place in 1971. Once again, liberal senators opposed the nomination, harshly criticizing Rehnquist's record on civil rights; once again, their effort to derail the nomination was unsuccessful. Rehnquist was confirmed by a vote of 65–32, and assumed the office of Chief Justice on September 26, 1986.

Ironically, Rehnquist's elevation to the Chief Justiceship coincided with the appointment of Justice antonin scalia, who displaced Rehnquist as the intellectual leader of the conservative wing of the Court. During his tenure as Chief Justice, Rehnquist has been as likely to vote with sandra day o'connor and anthony m. kennedy as with Scalia and clarence thomas, both of whom were more firmly committed to conservative ideology. Bush v. Vera (1996) exemplifies this point. There, rather than joining Scalia and Thomas in arguing that all consideration of race in electoral districting was unconstitutional, Rehnquist agreed with O'Connor and Kennedy in concluding that the Constitution requires only that "legitimate districting principles [not be] 'subordinated' to race."

The significance of cases such as Vera should not be overstated in evaluating Rehnquist's judicial philosophy. He remains a staunch conservative, fiercely opposed to the basic principles of liberal constitutionalism. For example, in planned parenthood v. casey (1992), Rehnquist voted to overturn roe v. wade (1973) and deconstitutionalize the law of abortion, rather than simply to modify Roe and its progeny as successfully advocated by O'Connor and Kennedy.

Rehnquist's opposition to Roe reflects his basic approach to constitutional interpretation, which in turn embodies the standard conservative political ideology of the late 1960s and early 1970s. Stung by the liberal activism of the Warren Court, conservatives had generally become vociferous advocates of the concept of judicial restraint generally, and a commitment to a jurisprudence based on the original intent of the Framers of the Constitution in particular. Not surprisingly, Rehnquist became the foremost defender of originalism on the Court. He expressed this philosophy in "The Notion of a Living Constitution":

[T]o the extent that it makes possible an individual's persuading one or more appointed federal judges to impose on other individuals a rule of conduct that the popularly elected branches of government would not have enacted and the voters have not and would not have embodied in the Constitution, … [nonoriginalist review] is genuinely corrosive of the fundamental values of our democratic society.

Among the best-known examples of the application of these principles are Rehnquist's dissenting opinions in cases such as sugarman v. dougall (1973) and trimble v. gordon (1977), where he argued that enhanced scrutiny under the equal protection clause should be limited to cases involving race-based classifications. The same jurisprudential philosophy has served Rehnquist well in cases where liberals have sought to deploy the Constitution in support of their values on issues ranging from school desegregation to criminal procedure, religious liberty, and gay rights. In dealing with these cases, he was the most consistent and effective advocate of judicial restraint on the Burger Court. Rehnquist has been equally effective in articulating conservative positions on issues of statutory interpretation involving matters such as habeas corpus, civil rights, and business regulation generally. As Chief Justice, he has continued to be a strong advocate for these positions.

By contrast, in cases where litigants have attempted to deploy the Constitution against liberal government programs, Rehnquist's voting pattern clearly reflects the tensions inherent in much of the conservative political–judicial theory of the late-twentieth century. Rehnquist was the Burger Court Justice who was most likely to uphold constitutional challenges raised by conservatives against liberal political programs, including cases involving federalism, property rights, and affirmative action. He has continued to support conservative activism on a variety of issues during his Chief Justiceship. Moreover, in some of these cases, Rehnquist's positions are hard to explain in terms other than pure politics; for example, his categorical rejection of race-based affirmative action plans in cases such as fullilove v. klutznick (1980) is inexplicable in any other terms. In other cases, however, Rehnquist has emphasized the principle of judicial restraint in rejecting constitutional challenges raised by conservatives. For example, following his general theory that corporations are creatures of the state and thus constitutionally subject to whatever restraints the state government wishes to impose, Rehnquist voted to uphold restraints on corporate political activities in cases such as first national bank of boston v. bellotti (1978)—hardly a policy that most conservative politicians would embrace. In short, despite his obvious gifts, Rehnquist has never fully resolved the potential conflicts between "judicial conservatism" and the political conservatism with which it has become associated. Nonetheless, he remains one of the most important and influential justices of the post-Warren era.

Earl M. Maltz
(2000)

Bibliography

Boles, Donald E. 1987 William Rehnquist: Judicial Activist. Ames, Iowa: Iowa State University Press.

Davis, Sue 1988 Justice Rehnquist and the Constitution. Princeton, N.J.: Princeton University Press.

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.

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