HE COULD SWAY OTHER JUSTICES, BUT NOT ALWAYS
By Brad Joondeph
Chief Justice William Rehnquist’s passing, after a rather heroic battle with thyroid cancer, has created a second vacancy on the Supreme Court and set the stage for another confirmation battle. But before the fight begins, it is worth reflecting on Rehnquist’s tenure as chief justice.
First, the substance of American law has grown significantly more conservative since 1986, when Rehnquist rose from associate justice to chief. Across a number of issues, constitutional law now reflects Rehnquist’s own conservative views. The Constitution is less protective of the rights of criminal defendants, and fewer prisoners can obtain reversals of their convictions through the writ of habeas corpus. The breadth of Congress’ authority vis-a-vis the states is more circumscribed. It is more difficult to sue the government for its failure to follow the law. And the wall separating church and state has been lowered.
Of course, it is impossible to know how much of this is personally attributable to Rehnquist. The chief justice has only one vote, same as the other eight justices. The chief justice can lead the court, if at all, only through his strategic assignment of opinions and his general management of the institution.
Moreover, the Supreme Court lacks the power to produce social change on its own. It reflects, rather than causes, the nation’s broader political trends. And American politics moved substantially rightward during Rehnquist’s tenure as chief. In 1986, Democrats enjoyed a 73-seat majority in the House of Representatives and, although the Republicans controlled the Senate, the party’s leadership was relatively moderate. Today, Republicans control both the House and the Senate, and their leaders are substantially more conservative.
Still, the law does not change itself. Under Rehnquist’s administration, the court translated these shifting political conditions into concrete changes in constitutional law.
At the same time, Rehnquist failed to deliver on several issues dear to conservatives. The court upheld Roe vs. Wade and the right to abortion; affirmed the authority of universities to practice affirmative action; ruled unconstitutional state laws banning gay sex; and prohibited states from applying the death penalty to the mentally retarded or to juveniles. In each of these cases, Rehnquist was unable to hold a conservative majority, losing Sandra Day O’Connor, Anthony Kennedy, or both.
The Rehnquist court’s five conservatives often split because they actually represented two very different brands of legal conservatism. O’Connor and Kennedy are more traditional: incrementalist, pragmatic and comparatively moderate. They respect precedent and tend to proceed one case at a time. In contrast, Antonin Scalia and Clarence Thomas are more ideological: fundamentally committed to ambitious, overarching theories of constitutional interpretation, and thus to broad (and even radical) change. Rehnquist has fallen somewhere in between.
Rehnquist was most successful in transforming the law where the traditional and ideological conservatives could agree, such as in reducing the size of government and enhancing the authority of law enforcement. But on several social issues, the conservative majority fell apart.
Finally, and perhaps most important, Rehnquist oversaw a substantial increase in the court’s own power. On a wide variety of issues, the court claimed supremacy over the other branches of government in shaping public policy, removing questions from the realm of politics and making them matters for the judiciary.
For the first time in 60 years, the court invalidated an act of Congress as beyond its commerce power. It curtailed Congress’ authority to enact laws enforcing the 14th Amendment, asserting that only the court could define the scope of constitutional rights. It limited the president’s authority to use military tribunals and detain enemy combatants. And, most famously, it effectively decided the 2000 presidential election.
From the war on terror to congressional redistricting to peer-to-peer computer file sharing, the Rehnquist court deemed itself qualified to resolve virtually any issue of significant public concern. And in deciding these questions, it showed remarkably little deference to the elected branches.
In short, we became a more court-centric nation during Rehnquist’s tenure as chief justice. Whether this constitutes a lasting change in the distribution of governmental power — or instead just a temporary shift due to fortuitous circumstances — will largely determine Rehnquist’s legacy.
BRAD JOONDEPH is an associate professor of law at Santa Clara University and a former clerk to Justice Sandra Day O’Connor. He wrote this article for the Mercury News.
