William H. Rehnquist: 1924-2005
by Joshua Adams

By all accounts, Chief Justice William Rehnquist was as compelling in private life — particularly on the basketball court — as he was opaque on the bench of the Supreme Court. His death, and the recollections of the man it has brought to light, have highlighted this dichotomy. In private, the chief justice indulged in a quixotic and un-PC sense of humor, poking fun at his ceremonial role by wearing a Native American headdress. Such drollness was not an obvious part of his stern public persona, but it wasn't entirely absent either. The gold stripes on his robes may have seemed pompous or off-putting or just plain ugly to some, but given that they originated in a local performance of a Gilbert and Sullivan operetta, their intent is much more ambiguous, even funny. It turns out that William Rehnquist may have been one of those rare traditionalists for whom irony was not a foreign language.

The present conservative ascendancy notwithstanding, the legacy of the man, like his official wardrobe, is a bit difficult to parse. Although he remains a hero to conservatives for advancing the causes they hold dear — limited government and deference to traditional cultural values — Rehnquist presided over a court that reaffirmed a series of liberal rulings on abortion, affirmative action and gay rights. He may have been the architect of the federalism revolution, but his opinions and dissents portray someone who did not engage in the customary theoretical flights of fancy of the revolutionary thinker. Given the chance to restrict the Warren Court's ruling in Miranda v. Arizona with the 2000 case Dickinson v. United States, Rehnquist declined, explaining in a majority opinion that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture."

Neither of Rehnquist's more strident colleagues, Antonin Scalia and Clarence Thomas, would allow themselves to write that sentence, with its heterodox acquiescence to the way the world is rather than the way one thinks the world should be. As a result, Rehnquist managed to remain free of the stigma of inflexibility so applicable to his younger brethren. He also won the praise and respect of liberal members of the court, not only because they appreciated his efficient management skills as chief justice but also because they saw something more fundamental, something like the shadow of respect. Rehnquist did not pepper his opinions with incendiary anti-gay rhetoric or recondite attacks on the regulatory capacities of the federal government. He was a conservative for whom conservatism was, at least on the surface, primarily a political philosophy of restraint, not a radical means to a particular end, such as banning abortion or outlawing affirmative action.

That's not to say that Rehnquist did not sincerely want to do these things. While wary of politicizing his judicial opinions, there was no doubt where the chief justice, a Goldwater volunteer and Nixon appointee, stood politically. Just how far to the right he tilted was the subject of much debate. During his confirmation hearings, a memo that Rehnquist wrote as a clerk emerged that supported the "separate but equal" precedent of Plessy v. Ferguson. The memo put him squarely on the lunatic fringe, but Rehnquist quickly disowned it as unrepresentative of his own opinions on the matter. His subsequent jurisprudence did not give the impression he was even remotely sensitive to the rights of criminals, to government regulation, to alternative lifestyles or, most crucially, to civil rights. In 1983, he was the only justice to dissent in a case revoking the tax-exempt status of Bob Jones University because of its racist policies. Whether or not these judgments were ideologically driven, their ostensible rationale was always the same: the Supreme Court is not Congress, and should not act as such.

Rehnquist dusted off this rationale for the first of two important cases decided late in his tenure, Planned Parenthood v. Casey. His dissent both called for a reassessment of the court's decision in Roe v. Wade and implied that the court had erred in that decision by asserting that the right to an abortion was "fundamental." States, according to the dissenting opinion, could regulate access to abortions as they might regulate other forms of private liberty subject to the due process clause of the 14th Amendment. This means that states would be free to permit abortions, too, if their publics, and their legislatures, were so inclined. In a later case, Grutter v. Bollinger, Rehnquist's dissent demolished the University of Michigan's rationale for using race in university admissions, but did not disown the principle that using race in university admissions might be legally acceptable under a different admissions regime.

What is remarkable about both examples is their procedural consistency: Rehnquist confined his judgments to the legal issues at hand rather than the larger philosophical problems entailed in both cases, i.e. whether abortion or positive discrimination are morally right. If ever there was a cause to celebrate the myopia of deferential jurisprudence and stare decisis, these two cases give it to us. Compared to the concurring dissents of Scalia and Thomas, which reek of prejudice against the twin vices of abortion and affirmative action, Rehnquist's reasoning is comparatively objective. Liberals, of course, are on tough ground here. Roe may be morally right, but it's hardly good constitutional law. And University of California v. Bakke, which provided the grounds for the majority in Grutter v. Bollinger, rests on an opinion by Lewis Powell that is the definition of ambiguity, having struck down one affirmative action program while providing the justification for thousands of others.

The point is that the Rehnquist Court has challenged the received wisdom of American liberalism — that the Supreme Court is a progressive force in the battle for equality — and that this challenge is fortuitous for liberalism itself. With a few notable exceptions, the court has lagged behind the rest of the country in every phase of its political development. Even given the opportunity of judicial review — snatched out of the air by John Marshall in Marbury v. Madison — the court remains profoundly limited in what it can accomplish. And this remains true when its decisions are sympathetic to the injustices that riddle our society. One need merely look at the massive resistance in the aftermath of the court's most courageous moment, Brown v. Board of Education, to find the bitter evidence of this reality. As an institution, the Supreme Court is good at affirming and overturning its own decisions. It is not good at translating those decisions into reality. Plessy v. Ferguson may have died in 1954, but its spirit, sadly, lived on. If the televised images of New Orleans are any indication, it still lives.

The liberal project can continue in the wake of the Rehnquist Court, and under the auspices of his former clerk, and more charismatic doppelganger, John Roberts. But to do so it will need to learn the lessons offered by its ideological adversaries in the Supreme Court and elsewhere. The first is that the legislature, not the judiciary, remains the most powerful tool for supporting the less fortunate, building a more just society and curbing the excesses of the marketplace. And the second is that, in the wake of the federalism revolution, and the continued and egregious gerrymandering of congressional districts, it is state governments, not Washington, that will allow liberals the ground on which to build and fortify these achievements. William Rehnquist may have justified his reactionary politics by couching them in terms of a strict reading of the Constitution that promoted state sovereignty. But his jurisprudence now provides the opportunity to forge a new, locally savvy and state-centered progressive tradition. It is so ordered.

E-mail Joshua Adams at joshua at uchicago dot edu.