William Rehnquist | Wikipedia audio article
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William Rehnquist | Wikipedia audio article


William Hubbs Rehnquist (; October 1, 1924
– September 3, 2005) was an American lawyer and jurist who served on the Supreme Court
of the United States for 33 years, first as an Associate Justice from 1972 to 1986, and
then as the 16th Chief Justice of the United States from 1986 until his death in 2005.
Considered a conservative, Rehnquist favored a conception of federalism that emphasized
the Tenth Amendment’s reservation of powers to the states. Under this view of federalism,
the court, for the first time since the 1930s, struck down an act of Congress as exceeding
its power under the Commerce Clause. Born in Shorewood, Wisconsin, Rehnquist pursued
a legal career in Phoenix, Arizona after graduating from Stanford Law School. He clerked for Associate
Justice Robert H. Jackson during the Supreme Court’s 1952–1953 term and served as a legal
adviser for Republican presidential nominee Barry Goldwater in the 1964 election. In 1969,
President Richard Nixon appointed Rehnquist as Assistant Attorney General of the Office
of Legal Counsel. In 1971, Nixon nominated Rehnquist to succeed Associate Justice John
Marshall Harlan II, and Rehnquist won Senate confirmation that same year. Rehnquist quickly
established himself as the most conservative member of the Burger Court. In 1986, President
Ronald Reagan nominated Rehnquist to succeed retiring Chief Justice Warren Burger, and
Rehnquist again won Senate confirmation. Rehnquist served as Chief Justice for nearly
19 years, making him the fourth-longest-serving Chief Justice, and the eighth-longest-serving
Justice. He became an intellectual and social leader of the Rehnquist Court, earning respect
even from the Justices who frequently opposed his opinions. Though he remained a member
of the conservative wing of the court, Associate Justices Antonin Scalia and Clarence Thomas
were often regarded as more conservative. As Chief Justice, Rehnquist presided over
the impeachment trial of President Bill Clinton. Rehnquist wrote the majority opinions in United
States v. Lopez (1995) and United States v. Morrison (2000), holding in both cases that
Congress had exceeded its power under the Commerce Clause. He opposed the court’s Roe
v. Wade (1973) decision and continued to argue that Roe had been incorrectly decided in Planned
Parenthood v. Casey (1992). In Bush v. Gore (2000), he voted with the court’s majority
to end the Florida recount.==Early life==
Rehnquist was born on October 1, 1924 and grew up in the Milwaukee suburb of Shorewood.
His father, William Benjamin Rehnquist, was a sales manager at various times for printing
equipment, paper, and medical supplies and devices; his mother, Margery Peck Rehnquist—the
daughter of a local hardware store owner who also served as an officer and director of
a small insurance company—was a local civic activist, as well as translator and homemaker.
His paternal grandparents immigrated from Sweden.Rehnquist graduated from Shorewood
High School in 1942. He attended Kenyon College, in Gambier, Ohio, for one quarter in the fall
of 1942, before entering the U.S. Army Air Forces. He served from March 1943 – 1946,
mostly in assignments in the United States. He was put into a pre-meteorology program
and assigned to Denison University until February 1944, when the program was shut down. He served
three months at Will Rogers Field in Oklahoma City, three months in Carlsbad, New Mexico,
and then went to Hondo, Texas, for a few months. He was then chosen for another training program,
which began at Chanute Field, Illinois, and ended at Fort Monmouth, New Jersey. The program
was designed to teach the maintenance and repair of weather instruments. In the summer
of 1945, Rehnquist went overseas as a weather observer in North Africa.After the war, Rehnquist
attended Stanford University with assistance under the provisions of the G.I. Bill.
In 1948, he received both a Bachelor of Arts and a Master of Arts degree in political science.
In 1950, he attended Harvard University, where he received another Master of Arts, this time
in government. He later returned to Stanford, and graduated from the Stanford Law School
in the same class as Sandra Day O’Connor, with whom he would serve on the Supreme Court.
They briefly dated at Stanford and Rehnquist even proposed marriage, though O’Connor declined
as she was by then dating her future husband. Rehnquist graduated first in his class.==Law clerk at the Supreme Court==
Rehnquist went to Washington, D.C., to work as a law clerk for Justice Robert H. Jackson
of the United States Supreme Court during the court’s 1952–1953 term. There, he wrote
a memorandum arguing against federal court-ordered school desegregation while the court was considering
the landmark case of Brown v. Board of Education, which was decided in 1954. Rehnquist’s 1952
memo, entitled “A Random Thought on the Segregation Cases”, defended the “separate-but-equal”
doctrine. In that memo, Rehnquist said: I realize that it is an unpopular and unhumanitarian
position, for which I have been excoriated by “liberal” colleagues, but I think Plessy
v. Ferguson was right and should be reaffirmed. To the argument that a majority may not deprive
a minority of its constitutional right, the answer must be made that while this is sound
in theory, in the long run it is the majority who will determine what the constitutional
rights of the minority are. In both his 1971 Senate confirmation hearing
for associate justice and his 1986 hearing for chief justice, Rehnquist testified that
the memorandum reflected the views of Justice Jackson rather than his own views. Rehnquist
said, “I believe that the memorandum was prepared by me as a statement of Justice Jackson’s
tentative views for his own use.” Elsie Douglas, long-time secretary and confidante of Justice
Jackson, stated during Rehnquist’s 1986 hearings that his allegation was “a smear of a great
man, for whom I served as secretary for many years. Justice Jackson did not ask law clerks
to express his views. He expressed his own and they expressed theirs. That is what happened
in this instance.”However, the papers of Justices Douglas and Frankfurter indicate that Justice
Jackson voted for Brown in 1954 only after changing his mind.At his 1986 hearings for
chief justice, Rehnquist tried to put further distance between himself and the 1952 memo:
“The bald statement that ‘Plessy was right and should be reaffirmed,’ was not an accurate
reflection of my own views at the time.” However, Rehnquist acknowledged defending Plessy in
arguments with fellow law clerks.Several commentators have concluded that the memo reflected Rehnquist’s
own views rather than those of Justice Jackson. A biography on Jackson corroborates this explanation,
stating that Jackson instructed his clerks to express their own views, not his. This
conclusion is further corroborated by an article published in The Boston College Law Review
in 2012, which analyzes a 1955 letter written to Justice Frankfurter that criticized Justice
Jackson.In any event, while later serving on the Supreme Court, Rehnquist made no effort
to reverse or undermine the Brown decision and frequently relied upon it as precedent.
Rehnquist stated in 1985 that there was a “perfectly reasonable” argument against Brown
v. Board and in favor of Plessy, even though he now saw the Court’s decision in Brown as
correct. In a memorandum to Justice Jackson about Terry
v. Adams, which involved the right of blacks to vote in an allegedly private Texas election,
Rehnquist wrote: The Constitution does not prevent the majority from banding together,
nor does it attaint success in the effort. It is about time the Court faced the fact
that the white people of the south do not like the colored people. The constitution
restrains them from effecting this dislike through state action, but it most assuredly
did not appoint the Court as a sociological watchdog to rear up every time private discrimination
raises its admittedly ugly head. In another memorandum to Justice Jackson regarding
the same case (Terry), Rehnquist wrote: Clerks began screaming as soon as they saw this that
‘Now we can show those damn southerners, etc.’ I take a dim view of this pathological search
for discrimination and as a result I now have something of a mental block against the case.
Nevertheless, Rehnquist recommended to Justice Jackson that the Supreme Court should agree
to hear the Terry case.==Private practice==
Rehnquist moved to Phoenix, Arizona, where he was in private law practice from 1953 to
1969. He began his legal work in the firm of Denison Kitchel, subsequently the national
campaign manager of the Barry M. Goldwater presidential campaign in 1964. Prominent clients
included Jim Hensley, the future father-in-law of John McCain. During these years, Rehnquist
was active in the Republican Party and served as a legal advisor under Kitchel to Goldwater’s
campaign. He collaborated with Harry Jaffa on Goldwater’s speeches.Many years later,
during the 1971 hearing for associate justice and later during the 1986 Senate hearings
on his chief justice nomination, several people came forward to complain about Rehnquist’s
participation in Operation Eagle Eye, a Republican attempt to discourage minority voters in Arizona
elections, when Rehnquist served as a poll watcher in the early 1960s. Rehnquist denied
the charges, and Vincent Maggiore, then chairman of the Phoenix-area Democratic Party, said
he had never heard any negative reports about Rehnquist’s Election Day activities. “All
of these things,” he said, “would have come through me.”==
Justice Department==When President Richard Nixon was elected in
1968, Rehnquist returned to work in Washington. He served as Assistant Attorney General of
the Office of Legal Counsel, from 1969 to 1971. In this role, he served as the chief
lawyer to Attorney General John Mitchell. President Nixon mistakenly referred to him
as “Renchburg” in several of the tapes of Oval Office conversations revealed during
the Watergate investigations.Because he was well-placed in the Justice Department, Rehnquist
was mentioned for many years as a possibility for the source known as Deep Throat during
the Watergate scandal. Once Bob Woodward revealed on May 31, 2005, that W. Mark Felt was Deep
Throat, this speculation ended. It was William Rehnquist who determined that Government National
Mortgage Association guarantees constituted a full faith and credit promise of the United
States.In fall 1971, Nixon received the resignations of two Supreme Court justices, Hugo Black
and John Marshall Harlan II. After compiling an initial list of possible appointees that
ran afoul of Chief Justice Burger and the American Bar Association, Nixon considered
Rehnquist for one of the slots. Henry Kissinger discussed the possible pick with presidential
advisor H.R. Haldeman and asked. “Rehnquist is pretty far right, isn’t he?” Haldeman responded,
“Oh, Christ! He’s way to the right of Buchanan,” referring to then-presidential advisor Patrick
Buchanan.==Associate Justice==Nixon nominated Rehnquist to replace John
Marshall Harlan II on the Supreme Court upon Harlan’s retirement, and after being confirmed
by the Senate by a 68–26 vote on December 10, 1971, Rehnquist took his seat as an associate
justice on January 7, 1972. There were two vacancies on the court at the time; Nixon
nominated Lewis Franklin Powell Jr. to fill the other, left by the retirement of Hugo
Black. Black died September 25, 1971, and Harlan died on December 29 of that year.
On the Burger Court, Rehnquist promptly established himself as the most conservative of Nixon’s
appointees, taking a narrow view of the Fourteenth Amendment and a broad view of state power.
Rehnquist almost always voted “with the prosecution in criminal cases, with business in antitrust
cases, with employers in labor cases, and with the government in speech cases.” Although
Rehnquist was often a lone dissenter in cases early on, his views would later often become
the majority view of the Court.===Federalism===
For years, Rehnquist was determined to keep cases involving individual rights in state
courts away from federal reach.In 1977s National League of Cities v. Usery, Rehnquist’s majority
opinion invalidated a federal law extending minimum wage and maximum hours provisions
to state and local government employees. Rehnquist wrote that “this exercise of congressional
authority does not comport with the federal system of government embodied in the Constitution.”As
chief justice, Rehnquist presided over what law professor Erwin Chemerinsky has called
a “federalist revolution”, during which the Court limited federal power in cases such
as New York v. United States, United States v. Lopez, Printz v. United States, and United
States v. Morrison. Similarly, Cato Institute scholar Roger Pilon has said that “[t]he Rehnquist
court has revived the doctrine of federalism . . . only at the edges and in very easy cases.”===
Equal protection, civil rights, and abortion===
Rehnquist rejected a broad view of the Fourteenth Amendment. In 1952, while serving as a clerk
to Supreme Court Justice Robert Jackson, Rehnquist wrote a memorandum which concludes that “Plessy
v. Ferguson was right and should be re-affirmed. If the Fourteenth Amendment did not enact
Spencer’s Social Statics, it just as surely did not enact Myrddahl’s American Dilemma”
(An American Dilemma), by which he meant that the Court should not “read its own sociological
views into the Constitution.” He believed that the Fourteenth Amendment was meant only
as a solution to the problems of slavery, and was misapplied when applied towards abortion
rights or prisoner’s rights. Rehnquist believed that the Court “had no business reflecting
society’s changing and expanding values” and argued that this was the domain of the Congress.
Rehnquist tried to weave his view of the amendment into his opinion for Fitzpatrick v. Bitzer,
but it was rejected by the other justices. Rehnquist later extended what he said he saw
as the scope of the amendment, writing in Trimble v. Gordon: “except in the area of
the law in which the Framers obviously meant it to apply—classifications based on race
or on national origin”.Also, during the Burger Court’s deliberations over Roe v. Wade, Rehnquist
promoted his view that court’s jurisdiction does not apply over abortion.He voted against
the expansion of school desegregation plans and the establishment of legalized abortions,
dissenting in Roe v. Wade, 410 U.S. 113 (1973). Rehnquist expressed his views about the Equal
Protection Clause in cases like Trimble v. Gordon:
Unfortunately, more than a century of decisions under this Clause of the Fourteenth Amendment
have produced …. a syndrome wherein this Court seems to regard the Equal Protection
Clause as a cat-o’-nine-tails to be kept in the judicial closet as a threat to legislatures
which may, in the view of the judiciary, get out of hand and pass “arbitrary”, “illogical”,
or “unreasonable” laws. Except in the area of the law in which the Framers obviously
meant it to apply—classifications based on race or on national origin, the first cousin
of race—the Court’s decisions can fairly be described as an endless tinkering with
legislative judgments, a series of conclusions unsupported by any central guiding principle.===Other issues===
Rehnquist consistently defended state-sanctioned prayer in public schools.Rehnquist held a
restrictive view of criminals’ and prisoners’ rights, and held the view that capital punishment
is constitutionally permissible. He supported the view that the Fourth Amendment permitted
a warrantless search incident to a valid arrest.In Nixon v. Administrator of General Services
(1977), Rehnquist dissented from a decision upholding the constitutionality of an act
that gave a federal agency administrator certain authority over former President Nixon’s presidential
papers and tape recordings. He dissented solely on the ground that the law was “a clear violation
of the constitutional principle of separation of powers”.During oral argument in Duren v.
Missouri (1978), the court faced a challenge to laws and practices that made jury duty
voluntary for women in that state. At the end of Ruth Ginsburg’s oral presentation Rehnquist
asked her, “You will not settle for putting Susan B. Anthony on the new dollar, then?”Rehnquist
wrote the majority opinion in Diamond v. Diehr, 450 U.S. 175 (1981), which began a gradual
trend toward overturning the ban on software patents in the United States first established
in Parker v. Flook, 437 U.S. 584 (1978). In Sony Corp. of America v. Universal City Studios,
Inc., pertaining to video cassette recorders such as the Betamax system, Justice Stevens
again wrote an opinion providing a broad fair use doctrine while Rehnquist joined the dissent,
which supported stronger copyrights. Years later, in Eldred v. Ashcroft, 537 U.S. 186
(2003), Rehnquist was in the majority favoring the copyright holders, with Justices Stevens
and Breyer dissenting in favor of a narrower construction of copyright law.===Rehnquist’s view of the rational basis
test===David Shapiro, professor of law at Harvard
University, wrote that while Rehnquist was an associate justice, he disliked even minimal
inquiries into legislative objectives except in the areas of race, national origin, and
infringement of specific constitutional guarantees. For Rehnquist, the rational basis test, which
is an important part of equal protection jurisprudence, was not a standard for weighing the interests
of the government against the individual; rather, it was a label to describe a preordained
result. Shapiro in 1978 pointed out that Rehnquist had avoided joining rational basis determinations
for years, except in one case, Weinberger v. Wiesenfeld. Rehnquist eschewed the Court
majority’s approach to equal protection, writing in dissent in Trimble v. Gordon that the state’s
distinction should be sustained because it was not “mindless and patently irrational”.
(The court struck down an Illinois law allowing illegitimate children to inherit by intestate
succession only from their mothers.) Shapiro pointed out that Rehnquist seemed
content to find a sufficient relationship between a challenged classification and perceived
governmental interests “no matter how tenuous or speculative that relationship might be”.
A practical result of Rehnquist’s view of rational basis can be seen in Cleveland Board
of Education v. LaFleur, wherein the Court’s majority struck down a school board rule that
required every pregnant teacher to take unpaid maternity leave beginning five months before
the expected birth of her child. Justice Powell wrote an opinion rested on the ground that
the school board rule was too overinclusive to survive equal protection analysis. In dissent,
Rehnquist attacked Powell’s opinion, saying: If legislative bodies are to be permitted
to draw a line anywhere short of the delivery room, I can find no judicial standard of measurement
which says the ones drawn here were invalid. Shapiro writes that Rehnquist’s opinion implied:
That there is no constitutionally significant difference between a classification that encompasses
virtually no one outside the scope of its purpose and a classification so overinclusive
that the vast majority of those falling within are beyond its intended scope.
Rehnquist’s dissent in United States Department of Agriculture v. Murry illuminates his view
that a classification should pass muster under the rational basis test so long as that classification
is not entirely counter-productive with respect to the purposes of the legislation in which
it is contained. Shapiro alleges that Rehnquist’s stance “makes rational basis a virtual nullity”.===Relations on the Court===
Rehnquist built warm personal relations with his colleagues, even with ideological opposites.
Justice William Brennan Jr. “startled one acquaintance by informing him that ‘Bill Rehnquist
is my best friend up here.'” Rehnquist and Justice William O. Douglas bonded over a shared
iconoclasm and love of the west. The Brethren claims that the court’s “liberals found it
hard not to like the good-natured, thoughtful Rehnquist”, despite finding his legal philosophy
“extreme”, and that Justice Stewart regarded Rehnquist as “excellent” and “a “team player,
a part of the group in the center of the court, even though he usually ended up in the conservative
bloc”.Since Rehnquist’s first years on the Supreme Court, other justices criticized what
they saw as his “willingness to cut corners to reach a conservative result”, “gloss[ing]
over inconsistencies of logic or fact” or distinguishing indistinct cases to reach their
destination. In Jefferson v. Hackney, for example, Douglas and Justice Thurgood Marshall
charged that Rehnquist’s opinion “misrepresented the legislative history” of a federal welfare
program. Rehnquist did not correct what The Brethren characterizes as an “outright misstatement,
… [and thus] publish[ed] an opinion that twisted the facts”. Rehnquist’s “misuse” of
precedents in another case “shocked” Justice John Paul Stevens. For his part, Rehnquist
was often “contemptuous of Brennan’s opinions”, seeing them as “bending the facts or law to
suit his purposes”.Reluctant to compromise, Rehnquist was the most frequent sole dissenter
during the Burger years, garnering the nickname “the Lone Ranger”. He usually voted with Chief
Justice Burger, and – recognizing “the importance of his relationship with Burger” – often
went along to get along, joining Burger’s majority opinions even when he disagreed with
them, and, in important cases, “tr[ying] to straighten him out”.==Chief Justice==When Chief Justice Warren Burger retired in
1986, President Ronald Reagan nominated Rehnquist to fill the position. Although Rehnquist was
to the right of Burger, “his colleagues were unanimously pleased and supportive”, even
his “ideological opposites”. The nomination “was met with ‘genuine enthusiasm on the part
of not only his colleagues on the Court but others who served the Court in a staff capacity
and some of the relatively lowly paid individuals at the Court. There was almost a unanimous
feeling of joy.'” Justice Thurgood Marshall would later call him “a great chief justice”.During
confirmation hearings, Senator Edward Kennedy challenged Rehnquist on his unwitting ownership
of property that had a restrictive covenant against sale to Jews
(such covenants were held to be unenforceable under the 1948 Supreme Court case Shelley
v. Kraemer). Despite this and other controversies, including a concern over his membership in
the Alfalfa Club (which at the time did not allow women to join),
the Senate confirmed his appointment by a 65–33 vote, and he assumed the office on
September 26. Rehnquist’s seat as an associate justice was filled by newly appointed Antonin
Scalia. In 1999, Rehnquist became the second chief
justice (after Salmon P. Chase) to preside over a presidential impeachment trial, during
the proceedings against President Bill Clinton. In 2000, Rehnquist wrote a concurring opinion
in Bush v. Gore, the case that effectively ended the presidential election controversy
in Florida. He concurred with four other justices in that case that the Equal Protection Clause
barred a “standardless” manual recount of the votes as ordered by the Florida Supreme
Court. In his capacity as chief justice, Rehnquist
administered the Oath of Office to the following presidents of the United States: George H. W. Bush in 1989
Bill Clinton in 1993 and 1997 George W. Bush in 2001 and 2005===Leadership of the Court===
Rehnquist’s predecessor as chief justice, Warren Burger, had floundered as a leader,
alienating his colleagues with his overbearing manner, his inability to effectively manage
the justices’ conference sessions, and abuse of his seniority—in particular, his tendency
to change his vote on important cases so that he could maintain control over opinion assignments.
Rehnquist, in sharp contrast, won over his fellow justices with his easygoing, humorous,
and unpretentious personality. He also tightened up the justices’ conferences, keeping the
justices from going too long or off track and not allowing any justice to speak twice
before all had spoken once, and gained a reputation for scrupulous fairness in assigning opinions:
Rehnquist assigned no Justice (including himself) two opinions before everyone had been assigned
one, and made no attempts to interfere with assignments for cases in which he was in the
minority. Most significantly, Rehnquist successfully lobbied Congress in 1988 to give the Court
control of its own docket, cutting back on mandatory appeals and certiorari grants in
general. Rehnquist added four yellow stripes to the
sleeves of his robe in 1995. He was a lifelong fan of Gilbert and Sullivan operas, and after
appreciating the Lord Chancellor’s costume in a community theater production of Iolanthe
he thereafter appeared in court with the same striped sleeves. (The Lord Chancellor was
traditionally the senior member of the British judiciary.) His successor, Chief Justice John
Roberts, chose not to continue the practice.===Federalism doctrine===
Rehnquist was expected by scholars to push the Supreme Court in a more conservative direction
during his tenure. One area many commentators expected to see changes was in limiting the
power of the federal government and in increasing the power of state governments. However, legal
reporter Jan Crawford says some of Rehnquist’s victories toward the federalist goal of scaling
back congressional power over the states had little practical impact.
Rehnquist voted with the majority in City of Boerne v. Flores (1997) and would refer
to that decision as precedent for requiring Congress to defer to the Court as regards
interpretation of the Fourteenth Amendment (including the Equal Protection Clause) in
a number of cases. Boerne held that any statute that Congress enacted to enforce the provisions
of the Fourteenth Amendment (including the Equal Protection Clause) had to show “a congruence
and proportionality between the injury to be prevented or remedied and the means adopted
to that end”. The Rehnquist Court’s congruence and proportionality theory replaced the “ratchet”
theory that had arguably been advanced in Katzenbach v. Morgan (1966). According to
the “ratchet” theory, Congress could “ratchet up” civil rights beyond what the Court had
recognized, but Congress could not “ratchet down” judicially recognized rights. According
to the majority opinion of Justice Anthony Kennedy, which Rehnquist joined in Boerne:
There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966), which could
be interpreted as acknowledging a power in Congress to enact legislation that expands
the rights contained in §1 of the Fourteenth Amendment. This is not a necessary interpretation,
however, or even the best one…. If Congress could define its own powers by altering the
Fourteenth Amendment’s meaning, no longer would the Constitution be “superior paramount
law, unchangeable by ordinary means”. The Rehnquist Court’s congruence and proportionality
standard made it easier to revive older precedents preventing Congress from going too far in
enforcing equal protection of the laws.One of the Rehnquist Court’s major developments
involved reinforcing and extending the doctrine of sovereign immunity, which limits the ability
of Congress to subject non-consenting states to lawsuits by individual citizens seeking
money damages. In both Kimel v. Florida Board of Regents
(2000) and Board of Trustees of the University of Alabama v. Garrett (2001), the Court held
that Congress had exceeded its power to enforce the Equal Protection Clause. In both those
cases, Rehnquist was in the majority that held discrimination by states based upon age
or disability (as opposed to race or gender) need satisfy only rational basis review as
opposed to strict scrutiny. Though the Eleventh Amendment by its terms
applies only to suits against a state by citizens of another state, the Rehnquist Court often
extended this principle to suits by citizens against their own states. One such case was
Alden v. Maine (1999), in which the Court explained that the authority to subject states
to private suits does not follow from any of the express enumerated powers in Article
One of the Constitution, and therefore the Alden Court looked to the Necessary and Proper
Clause to see if that Clause authorized Congress to subject the states to lawsuits by the state’s
own citizens. Rehnquist agreed with Justice Kennedy’s statement that such lawsuits were
not “necessary and proper”: Nor can we conclude that the specific Article I powers delegated
to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise,
the incidental authority to subject the States to private suits as a means of achieving objectives
otherwise within the scope of the enumerated powers. Rehnquist also led the Court toward a more
limited view of Congressional power under the Commerce Clause of the U.S. Constitution.
For example, he wrote for a 5-to-4 majority in United States v. Lopez, 514 U.S. 549 (1995),
striking down a federal law as exceeding congressional power under the Clause.
Lopez was followed by United States v. Morrison, 529 U.S. 598 (2000), in which Rehnquist wrote
the Court’s opinion striking down the civil damages portion of the Violence Against Women
Act of 1994 as regulating conduct that does not have a significant direct effect on interstate
commerce. Rehnquist’s majority opinion in Morrison also rejected an Equal Protection
argument on behalf of the Act. All four dissenters disagreed with the Court’s interpretation
of the Commerce Clause, and two dissenters (Stevens and Stephen Breyer) also took issue
with the Court’s Equal Protection analysis. Regarding the Commerce Clause, Justice David
Souter asserted that the Court was improperly seeking to convert the judiciary into a “shield
against the commerce power”. Regarding the Equal Protection Clause, Rehnquist’s
majority opinion in Morrison cited precedents limiting the Clause’s scope, such as United
States v. Cruikshank (1876), which held that the Fourteenth Amendment applied only to state
actions, not private acts of violence. Dissenting Justice Breyer, joined by Justice Stevens,
agreed with the majority that it “is certainly so” that Congress may not “use the Fourteenth
Amendment as a source of power to remedy the conduct of private persons”. However, Breyer
and Stevens took issue with another aspect of the Morrison Court’s Equal Protection analysis:
they argued that cases that the majority had cited (including United States v. Harris and
the Civil Rights Cases regarding lynching and segregation respectively) did not consider
“this kind of claim” in which state actors “failed to provide adequate (or any) state
remedies”. In response, the Morrison majority asserted that the Violence Against Women Act
was “directed not at any State or state actor, but at individuals who have committed criminal
acts motivated by gender bias”. The federalist trend set by Lopez and Morrison
was seemingly halted by Gonzales v. Raich (2005), in which the court broadly interpreted
the Commerce Clause to allow Congress to prohibit the intrastate cultivation of medicinal cannabis.
Rehnquist, along with O’Connor and Thomas, dissented in Raich.
Rehnquist authored the majority opinion in South Dakota v. Dole (1987), upholding Congress’s
reduction of funds to states not complying with the national 21-year-old drinking age.
Rehnquist’s broad reading of Congress’s spending power was also seen as a major limitation
on the Rehnquist Court’s push towards redistribution of power from the federal government to the
states.===Stare decisis===
Some commentators expected the Rehnquist Court to overrule several controversial decisions
broadly interpreting the Bill of Rights. The Rehnquist Court, however, expressly declined
to overrule Miranda v. Arizona in its decision in Dickerson v. United States. Rehnquist believed
that federal judges should not impose their personal views on the law or stray beyond
the intent of the framers by reading broad meaning into the Constitution; he saw himself
as an “apostle of judicial restraint”. TIME Magazine suggested, however, that Rehnquist
violated this belief by overruling many cases, particularly from the Warren Court era. Columbia
Law School Professor Vincent Blasi said of Rehnquist in 1986 that “[n]obody since the
1930s has been so niggardly in interpreting the Bill of Rights, so blatant in simply ignoring
years and years of precedent.” (In the same article, Rehnquist was quoted as retorting
that “such attacks come from liberal academics and that ‘on occasion, they write somewhat
disingenuously about me’.”) Rehnquist was a foe of the Court’s 1973 Roe
v. Wade decision. In 1992, that decision survived by a 5–4 vote, in Planned Parenthood v.
Casey, which relied heavily on the doctrine of stare decisis. Dissenting in Casey, Rehnquist
criticized the Court’s “newly minted variation on stare decisis”, and asserted his belief
“that Roe was wrongly decided, and that it can and should be overruled consistently with
our traditional approach to stare decisis in constitutional cases”.Rehnquist was not
reluctant to apply stare decisis in the fashion he believed appropriate. For example, in Dickerson
v. United States (2000), Rehnquist voted to reaffirm the Court’s famous decision in Miranda
v. Arizona (1966) based not only on the notion of adhering to precedent but also on his belief
that “the totality-of-the-circumstances test … is more difficult than Miranda for law
enforcement officers to conform to, and for courts to apply in a consistent manner.” Shortly
after Dickerson was decided, the Court dealt with another abortion case, this time dealing
with partial birth abortion in Stenberg v. Carhart (2000). Again, a 5–4 decision, and
again a dissent from Rehnquist urged that stare decisis should not be the sole consideration:
“I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505
U. S. 833 (1992), and continue to believe that case is wrongly decided.”===Gay rights===
Among the many closely watched decisions during Rehnquist’s tenure was Romer v. Evans (1996).
Colorado had adopted an amendment to the state constitution (“Amendment 2”) that the Court
majority said would have prevented any city, town, or county in the state from taking any
legislative, executive, or judicial action to protect homosexual citizens from discrimination
on the basis of their sexual orientation. Rehnquist joined the dissent, which argued
that the Constitution of the United States says nothing about this subject, so “it is
left to be resolved by normal democratic means”. The dissent, written by Justice Scalia, argued
as follows (some punctuation omitted): General laws and policies that prohibit arbitrary
discrimination would continue to prohibit discrimination on the basis of homosexual
conduct as well. This … lays to rest such horribles, raised in the course of oral argument,
as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits
special treatment of homosexuals, and nothing more. It would not affect, for example, a
requirement of state law that pensions be paid to all retiring state employees with
a certain length of service; homosexual employees, as well as others, would be entitled to that
benefit. The dissent mentioned the Court’s then-existing
precedent in Bowers v. Hardwick (1986), that “the Constitution does not prohibit what virtually
all States had done from the founding of the Republic until very recent years—making
homosexual conduct a crime.” By analogy, the Romer dissent reasoned that: If it is rational
to criminalize the conduct, surely it is rational to deny special favor and protection to those
with a self avowed tendency or desire to engage in the conduct.
The dissent listed murder, polygamy, and cruelty to animals as behaviors that the federal Constitution
allows states to be very hostile toward, and in contrast the dissent stated: “the degree
of hostility reflected by Amendment 2 is the smallest conceivable.” The Romer dissent added:
I would not myself indulge in … official praise for heterosexual monogamy, because
I think it no business of the courts (as opposed to the political branches) to take sides in
this culture war. But the Court today has done so, not only by inventing a novel and
extravagant constitutional doctrine to take the victory away from traditional forces,
but even by verbally disparaging as bigotry adherence to traditional attitudes. With the case of Lawrence v. Texas in 2003,
the Supreme Court under Rehnquist went on to overrule Bowers. Rehnquist again dissented
along with Scalia and Clarence Thomas. The Court’s result in Romer had described the
struck-down statute as “a status-based enactment divorced from any factual context from which
we could discern a relationship to legitimate state interests”. The sentiment behind that
statute had led to the court evaluating it with a “more searching” form of review. Similarly,
in Lawrence, “moral disapproval” was found to be an unconstitutional basis for condemning
a group of people. The Court protected homosexual behavior in the name of liberty and autonomy.Rehnquist
sometimes reached results favorable to homosexuals, for example voting to allow a gay CIA employee
to sue on the basis of constitutional law for improper personnel practices (although
barring suit on the basis of administrative law in deference to a claim of national security
reasons), voting to allow same-sex sexual harassment
claims to be adjudicated, and voting to allow the University of Wisconsin–Madison
to require students to pay a mandatory fee that subsidized gay groups along with all
other student organizations.===Civil Rights Act===
Rehnquist voted with the majority in denying a private right to sue for discrimination
based on race or national origin involving a disparate impact under title VI of the Civil
Rights Act of 1964, in Alexander v. Sandoval (2001), which involved the issue of whether
a citizen could sue a state for not providing driver’s license exams in languages other
than English. Sandoval cited Cannon v. University of Chicago (1979) as a precedent. The Court
voted 5–4 that various facts (regarding disparate impact) mentioned in a footnote
of Cannon were not part of the holding of Cannon. The majority also viewed it as significant
that §602 of Title VI did not repeat the rights-creating language (race, color, or
national origin) in §601.===Religion clauses===
In 1992, Rehnquist joined Lee v. Weisman’s dissenting opinion that the Free Exercise
Clause of the First Amendment to the Constitution only forbids government from preferring one
particular religion over another. Justice Souter wrote a dissent specifically
addressed to Rehnquist on this issue in 1992.Rehnquist also led the way in allowing greater state
assistance to religious schools, writing for another 5-to-4 majority in Zelman v. Simmons-Harris.
In Zelman, the Court approved a school voucher program that aided church schools along with
other private schools. In June 2005, Rehnquist wrote the plurality
opinion upholding the constitutionality of a display of the Ten Commandments at the Texas
state capitol in Austin. The case was Van Orden v. Perry. Rehnquist wrote: Our cases,
Janus like, point in two directions in applying the Establishment Clause. One face looks toward
the strong role played by religion and religious traditions throughout our Nation’s history….
The other face looks toward the principle that governmental intervention in religious
matters can itself endanger religious freedom. This decision was joined by Justices Scalia,
Thomas, Breyer, and Kennedy.===First Amendment===
University of Chicago Law School Professor Geoffrey Stone explains that Rehnquist was
by an impressive margin the member of the Supreme Court least likely to invalidate a
law as violating “the freedom of speech, or of the press”. Justice Burger, who was chief
justice when Rehnquist started as an associate justice, was 1.8 times more likely to vote
in favor of the First Amendment; Scalia, 1.6 times; Thomas, 1.5 times. Excluding unanimous
Court decisions, Rehnquist voted to reject First Amendment claims 92% of the time. In
issues involving freedom of the press, Rehnquist rejected First Amendment claims 100% of the
time. Stone says: There were only three areas in which Rehnquist showed any interest in
enforcing the constitutional guarantee of free expression: in cases involving advertising,
religious expression, and campaign finance regulation. However, as he did in Bigelow
v. Commonwealth of Virginia, Rehnquist voted against freedom of advertising if an advertisement
involved birth control or abortion.===Fourteenth Amendment===
Rehnquist wrote a concurrence agreeing to strike down the male-only admissions policy
of the Virginia Military Institute, as violative of the Fourteenth Amendment’s Equal Protection
Clause. However, he declined to join the majority opinion’s basis for using the Fourteenth Amendment,
writing: Had Virginia made a genuine effort to devote comparable public resources to a
facility for women, and followed through on such a plan, it might well have avoided an
equal protection violation. This rationale supported facilities separated on the basis
of gender: It is not the ‘exclusion of women’ that violates the Equal Protection Clause,
but the maintenance of an all-men school without providing any—much less a comparable—institution
for women…. It would be a sufficient remedy, I think, if the two institutions offered the
same quality of education and were of the same overall caliber.
Rehnquist remained skeptical about the Court’s Equal Protection Clause jurisprudence; some
of his opinions most favorable to equality resulted from statutory rather than constitutional
interpretation. For example, in Meritor Savings Bank v. Vinson (1986), Rehnquist established
a hostile-environment sexual harassment cause of action under Title VII of the Civil Rights
Act of 1964, including protection against psychological aspects of harassment in the
workplace.==Legacy==
Jeffery Rosen has argued that William Rehnquist’s “tactical flexibility was more effective than
the rigid purity of Scalia and Thomas.” Rosen says: In truth, Rehnquist carefully staked out a
limbo between the right and the left and showed that it was a very good place to be. With
exceptional efficiency and amiability he led a Court that put the brakes on some of the
excesses of the Earl Warren era while keeping pace with the sentiments of a majority of
the country—generally siding with economic conservatives and against cultural conservatives.
As for judicial temperament, he was far more devoted to preserving tradition and majority
rule than the generation of fire-breathing conservatives who followed him. And his administration
of the Court was brilliantly if quietly effective, making him one of the most impressive chief
justices of the past hundred years. In The Partisan: The Life of William Rehnquist,
biographer John A. Jenkins was critical of Rehnquist’s history with racial discrimination.
He noted that, as a private citizen, Rehnquist had protested the Court’s decision in Brown
v. Board of Education and as a justice, consistently ruled against racial minorities in affirmative
action cases. Only when white males began to make reverse discrimination claims, did
Rehnquist become sympathetic to equal protection arguments.Charles Fried has described the
Rehnquist Court’s “project” as being “to reverse not the course of history but the course of
constitutional doctrine’s abdication to politics”. Legal reporter Jan Greenburg has said that
conservative critics noted that the Rehnquist court did little to overturn the left’s successes
in the lower courts, and in many cases actively furthered them.However, in 2005 law professor
John Yoo wrote: “It is telling to see how many of Rehnquist’s views, considered outside
the mainstream at the time by professors and commentators, the court has now adopted.”==
Personal health==After Rehnquist’s death in 2005, the FBI honored
a Freedom of Information Act request detailing the Bureau’s background investigation prior
to Rehnquist’s nomination as chief justice. The files reveal that for a period, Rehnquist
had been addicted to Placidyl, a drug widely prescribed for insomnia. Placidyl can be addictive,
and it was not until he was hospitalized that doctors learned of the depth of his dependency.
Rehnquist was prescribed Placidyl by Dr. Freeman Cary, a physician at the U.S. Capitol, for
insomnia and back pain from 1972 through 1981 in doses exceeding the recommended limits.
The FBI report concluded, however, that Rehnquist was already taking the drug as early as 1970.
By the time he sought treatment, Rehnquist was taking three times the prescribed dose
of the drug nightly. On December 27, 1981, Rehnquist entered George Washington University
Hospital for treatment of back pain and dependency on Placidyl. There, he underwent a month-long
detoxification process. While hospitalized, he had typical withdrawal symptoms, including
hallucinations and paranoia. For example, “One doctor said Rehnquist thought he heard
voices outside his hospital room plotting against him and had ‘bizarre ideas and outrageous
thoughts’, including imagining ‘a CIA plot against him’ and seeming to see the design
patterns on the hospital curtains change configuration.”For several weeks prior to hospitalization, Rehnquist
had slurred his words, but there were no indications he was otherwise impaired. Law professor Michael
Dorf has observed that “none of the Justices, law clerks or others who served with Rehnquist
have so much as hinted that his Placidyl addiction affected his work, beyond its impact on his
speech.”==
Declining health and death==On October 26, 2004, the Supreme Court press
office announced that Rehnquist had recently been diagnosed with anaplastic thyroid cancer.
In the summer of 2004, Rehnquist traveled to England to teach a constitutional law class
at Tulane University Law School’s program abroad. After several months out of the public
eye, Rehnquist administered the oath of office to President George W. Bush at his second
inauguration on January 20, 2005, despite doubts over whether his health would permit
his participation. He arrived using a cane, walked very slowly, and left immediately after
the oath itself was administered.After missing 44 oral arguments before the Court in late
2004 and early 2005, Rehnquist appeared on the bench again on March 21, 2005. During
his absence, however, he remained involved in the business of the Court, participating
in many of the decisions and deliberations.On July 1, 2005, Rehnquist’s colleague Sandra
Day O’Connor announced her impending retirement from her position of associate justice, after
consulting with Rehnquist and learning that he intended to remain on the Court. Commenting
on the frenzy of speculation over his retirement, Rehnquist responded to a reporter who asked
if he would be retiring, “That’s for me to know and you to find out.”Rehnquist died at
his Arlington, Virginia, home on September 3, 2005, just four weeks before his 81st birthday.
Rehnquist was the first member of the Supreme Court to die in office since Justice Robert
H. Jackson in 1954 and the first chief justice to die in office since Fred M. Vinson in 1953.On
September 6, 2005, eight of Rehnquist’s former law clerks, including Judge John Roberts,
his eventual successor, served as pallbearers as his casket was placed on the same catafalque
that bore Abraham Lincoln’s casket as he lay in state in 1865. Rehnquist’s body lay in
repose in the Great Hall of the United States Supreme Court Building until his funeral on
September 7, 2005, a Lutheran service conducted at the Roman Catholic Cathedral of St. Matthew
the Apostle in Washington, D.C. Rehnquist was eulogized by President George W. Bush
and Justice Sandra Day O’Connor, as well as by members of his family. The Rehnquist funeral
was the largest gathering of political dignitaries at the cathedral since the funeral of President
John F. Kennedy in 1963. Rehnquist’s funeral was followed by a private burial service,
in which he was interred next to his wife, Nan, at Arlington National Cemetery.==Replacement as chief justice==
Rehnquist’s death, just over two months after O’Connor announced her impending retirement,
left two vacancies to be filled by President George W. Bush. On September 5, 2005, Bush
withdrew the nomination of Judge John Roberts of the D.C. Circuit Court of Appeals to replace
O’Connor as associate justice, and instead nominated him to replace Rehnquist as chief
justice. Roberts was confirmed by the U.S. Senate and sworn in as the new chief justice
on September 29, 2005. Roberts had clerked for Rehnquist in 1980–1981. O’Connor, who
had made the effective date of her resignation the confirmation of her successor, continued
to serve on the Supreme Court until the confirmation and swearing in of Samuel Alito in January
2006. Eulogizing his predecessor in the Harvard
Law Review, Roberts wrote that Rehnquist was “direct, straightforward, utterly without
pretense—and a patriot who loved and served his country. He was completely unaffected
in manner.”==
Family life==Rehnquist’s paternal grandparents immigrated
separately from Sweden in 1880. His grandfather Olof Andersson, who changed his surname from
the patronymic Andersson to the family name Rehnquist, was born in the province of Värmland;
his grandmother was born Adolfina Ternberg in the Vreta Kloster parish in Östergötland.
Rehnquist is one of two chief justices of Swedish descent, the other being Earl Warren,
who had Norwegian and Swedish ancestry.Rehnquist married Natalie “Nan” Cornell on August 29,
1953. The daughter of a successful San Diego physician, she worked as an analyst on the
CIA’s Austria desk before their marriage. The couple had three children: James, a lawyer
and college basketball star, Janet, a lawyer, and Nancy, an editor (including of her father’s
books) and homemaker. Nan Rehnquist died on October 17, 1991, aged 62, from ovarian cancer.
Rehnquist was survived by nine grandchildren.Shortly after moving to Washington, D.C., the Rehnquists
purchased a home in Greensboro, Vermont, a rural community where they spent many vacations.==Books authored==
Rehnquist, William H. (2004). The Centennial Crisis: The Disputed Election of 1876. New
York: Knopf Publishing Group. ISBN 0-375-41387-1. Rehnquist, William H. (1998). All the Laws
but One: Civil Liberties in Wartime. New York: William Morrow & Co. ISBN 0-688-05142-1.
Rehnquist, William H. (1992). Grand Inquests: The Historic Impeachments of Justice Samuel
Chase and President Andrew Johnson. New York: Knopf Publishing Group. ISBN 0-679-44661-3.
Rehnquist, William H. (1987). The Supreme Court: How It Was, How It Is. New York: William
Morrow & Co. ISBN 0-688-05714-4. Revised edition: Rehnquist, William H. (2001).
The Supreme Court: A new edition of the Chief Justice’s classic history. New York: Knopf
Publishing Group. ISBN 0-375-40943-2.==See also==Demographics of the Supreme Court of the United
States List of Justices of the Supreme Court of the
United States List of law clerks of the Supreme Court of
the United States List of United States Chief Justices by time
in office List of U.S. Supreme Court Justices by time
in office United States Supreme Court cases during the
Burger Court United States Supreme Court cases during the
Rehnquist Court

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