Rehnquist's Legacy Commentary
Rehnquist's Legacy
Edited by: Jeremiah Lee

JURIST Guest Columnist Craig Bradley, a former law clerk to the late Chief Justice William Rehnquist, says that Rehnquist's thirty-three year legal legacy is complex and must be examined from multiple perspectives…

No one person can adequately assess Chief Justice William Rehnquist’s thirty-three year-plus legal legacy. It's necessary to break that down into different areas of law, and to ask people with an expertise in each area to assess that legacy from their perspective. That's why this past April the Indiana University School of Law in Bloomington convened a special conference to examine Rehnquist's contributions in the field of constitutional law, including criminal procedure and habeas corpus. The papers delivered at that conference will soon be published by Cambridge University Press in a book aptly entitled The Rehnquist Legacy.

In abridged form, here's what our speakers and contributors had to say. Keynoter Linda Greenhouse, Supreme Court correspondent for the New York Times, picked up on a theme expressed in a 2002 lecture by Prof. Thomas Merrill entitled "The Making of the Second Rehnquist Court". She noted that the first eight years of Rehnquist’s Chief Justiceship saw the Court experiencing frequent changes in membership and it

spent much of its time and energy spinning its wheels on hot-button social issues without being able…to make much progress toward advancing the conservative agenda on such issues as abortion and school prayer. That was the First Rehnquist Court. Then, beginning in the summer of 1994, the Court experienced no turnover. The emphasis of the docket—a shrinking docket—shifted from the social issues to the structural, most notably to questions related to federalism, on which the conservative majority enjoyed striking…success. That was the second Rehnquist Court, and the Chief Justice appeared to be leading it with a sure hand.

The last three years, in Greenhouse's view, have shown the emergence of a “Third Rehnquist Court.” This is characterized by a “re-engagement with divisive social issues, including affirmative action, religion and gay rights,” “the suggestion that the much-vaunted federalism revolution may have run its course,” “and the unmistakable indication…that the Chief Justice no longer speaks for a majority of the Court on many of the docket’s most important issues.”

Turning to specific topics, Prof. Geoffrey Stone (University of Chicago) noted that, during his tenure on the Court, 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.” This was particularly true when unanimous cases were not considered. However, there were three areas, commercial speech, religious speech and campaign financing, where Rehnquist was more likely to uphold free speech claims than most of his colleagues. Stone observed that “a cynic might say that Rehnquist’s First Amendment reads ‘Congress shall make no law abridging the freedom of speech of corporations, the wealthy, or the church.'”

Specifically as to commercial speech, Prof. Earl Maltz (Rutgers University) pointed out that Rehnquist originally held out against First Amendment protection for commercial speech as the sole dissenter in the 1976 Virginia Pharmacy case. He attracted a majority to his position ten years later in Posadas de Puerto Rico v. Tourism Co. Of Puerto Rico, writing an opinion upholding a state imposed ban on billboards advertising casinos to local residents. However, in 1996 Posadas was overruled in Liquourmart v. Rhode Island with Chief Justice Rehnquist “giving up” and joining Justice Thomas unanimous opinion striking down a state ban on liquor price advertising. With both liberals and conservatives committed to an activist judiciary striking down commercial speech limitations imposed by legislative bodies, there was no longer any point in Rehnquist holding to his position of deference to those bodies.

In his paper "Free Speech, Public Property and Government Money", Prof. Richard Garnett (Notre Dame) was much more supportive than Prof. Stone of Rehnquist’s reluctance to favor First Amendment claims:

Rehnquist’s work does not reflect skepticism or hostility toward the core values protected by the Free Speech Clause, as some have charged, but instead reveals a careful appreciation for the fact that the translation and reduction of so many policy questions to free-speech problems comes at a cost. After all, as the civic, social and political territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically and experimentally by the people and their representatives or that is left under the direction of private persons, groups, and institutions. One implication of the free speech takeover, Rehnquist seems to be warning us, is that difficult policy and other decisions depend increasingly on judges’ evaluation of the abstract weight or worthiness of the government’s interests, rather than on deliberation, compromise, and trial-and-error by and among citizens and politically accountable public officials.

In fact, Garnett’s explanation could be applied to all of Rehnquist’s many decisions that are inhospitable to claims of constitutional protection by various litigants. As Rehnquist put it, dissenting in Trimble v. Gordon, a case in which the majority established constitutional protection for the inheritance rights of illegitimate children, the Constitution “did not confer on this Court any authority to nullify state laws that were merely felt to be inimical to the Court’s notion of the public interest.”

As for the First Amendment’s prohibition of the establishment of religion, Prof. Daniel Conkle noted that

consistently with his general inclination to read the Bill of Rights narrowly, Chief Justice Rehnquist has championed an extremely relaxed approach to the Establishment Clause. He has voted to reject virtually every Establishment Clause challenge the Court has confronted, and, contrary to settled doctrine, he has argued that the states should be permitted to favor religion as long as they avoid discrimination among competing religious sects. Rehnquist’s general view of the Establishment Clause has not prevailed and he frequently has found himself languishing in dissent.”

Rehnquist has, however, prevailed in one important area: voucher-based public funding for religious schools and organizations. As long as such funding programs are “neutral,” i.e. available to religious and non-religious schools or organizations alike, they are acceptable, even if the bulk of the funding in fact goes to religious schools/organizations.

The conference next turned to Rehnquist’s legacy in criminal procedure: specifically his record as to searches and seizures under the Fourth, confessions under the Fifth and right to counsel under the Sixth Amendments, as well as the right of state prisoners to seek habeas corpus relief in federal courts. In this area, Rehnquist has virtually never voted in favor of a criminal defendant in a non-unanimous case. As to the Fourth Amendment, I noted that “the police have had no greater friend on the Supreme Court than William Rehnquist.” While he has not succeeded in overruling Mapp v. Ohio, which extended the exclusionary rule to the states, he has participated in a substantial, across the board, curtailment of suspects’ Fourth Amendment rights. This includes limiting the definition of what police
conduct is a “search” (and hence covered by the Fourth Amendment at all); weakening the “probable cause” and warrant requirements for arrests and searches, creating a “good faith” exception to the exclusionary rule in warrant cases, and limiting the number of defendants who have “standing” to raise Fourth Amendment claims.

Likewise, he has been unsuccessful in his second major goal: overruling Miranda v. Arizona. In fact, he authored the majority opinion in Dickerson v. United States, striking down a federal statute that purported to “overrule” Miranda. However, as Professor Yale Kamisar pointed out, four years later, he joined in a decision that severely undercut Miranda by allowing the government to use the “fruits” of confessions obtained in violation of Miranda, and dissented in another case where the Court narrowly disallowed the fruits of confessions obtained due to intentional Miranda violations by police: “The Chief Justice has probably contributed more to the confusion about Miranda than any other Justice.”

Rehnquist has never expressed the same hostility to the third keystone of the “criminal procedure revolution,” Gideon v. Wainwright, that he has to Mapp and Miranda. Gideon established a Sixth Amendment right to appointed counsel for indigents in all felony cases. Argersinger v. Hamlin, extended Gideon to at least all cases in which a person is sentenced to imprisonment. Rehnquist joined Justice Powell’s opinion concurring in the result in that case, expressing reservations about the Court’s adoption of a bright line “actual imprisonment” standard. Since then, as Prof. James Tomkovicz explained, “he has had particular success in restricting indigent defendants’ rights to appointed counsel for trial and for post-trial phases of the criminal process.” In particular, he, joined by Powell, cut off the right to counsel at the “actual imprisonment” line about which he had previously expressed reservations, in Scott v. Illinois.

On the subject of federal habeas corpus as a means for state prisoners to achieve review of their convictions in federal court, Prof Joseph Hoffmann observed that

During his long career on the Court, Chief Justice Rehnquist has played a central role in reversing the (Justice) Brennan-engineered expansion of federal habeas. Rehnquist—a staunch believer in the prerogatives of the state vis-a-vis the federal government, as well as in the inherent right of society to punish criminals as it sees fit—consistently has advocated for a far narrower federal habeas remedy than the one Brennan envisioned in the 1960's. Today it is clearly Rehnquist’s view of federal habeas corpus that has prevailed….Moreover, to the extent that he has sometimes failed to persuade the Court to restructure federal habeas corpus, Congress has stepped in and completed the task for him.

The next section of the conference was devoted to the structure of government. Rehnquist authored two highly publicized opinions limiting the power of Congress to legislate under the Commerce Clause: United States v. Lopez and United States v. Morrison. However, Prof. Mark Tushnet (Georgetown) is of the view that these cases lack “second order principles (beyond the basic notion of federalism itself) that would translate these opinions into legal doctrines that could be regularly and predictably applied.” In fact, five years after Morrison, it now appears that these cases were not the opening salvo of a “federalism revolution” as some averred at the time, but more of a shot across the bow of Congress warning it to limit its Commerce Clause jurisdiction to situations that really did involve interstate commerce in some meaningful sense. The recent case of Gonzales v. Raich, in which the Court upheld a federal statute that prohibited use/possession of marijuana for medical purposes despite a state law allowing it, and despite no obvious connection to interstate commerce, seems to confirm that a major reduction of the powers of the federal government will not occur.

As Prof. Lynn Baker (Texas) pointed out, Rehnquist has been more hospitable to exercises of congressional power vis a vis the states when Congress attaches conditions to spending that the states can refuse altogether if they wish. In South Dakota v. Dole, the Court, per Rehnquist, upheld a federal statute that directed the Department of Transportation to withhold federal highway funds from states that did not establish a minimum drinking age of at least 21 “even if Congress may not regulate drinking ages directly.” In discussing Rehnquist’s apparent lack of interest in narrowing the “potentially eviscerative ‘loophole’ that existing spending doctrine provides to the Rehnquist Court’s important project of restoring a meaningful balance between the state and federal spheres,” Baker suggested that Rehnquist’s various spending power and Commerce Clause decisions can be reconciled with one another “if one acknowledges that what drives his jurisprudence in both areas is a (sometimes) unstated inquiry into whether the congressional statute would regulate an area ‘where states historically have been sovereign,’ or whether it instead involves a traditional and appropriate federal function. That is, Chief Justice Rehnquist’s legacy in the area of federalism and the spending power may be a quiet, and to date only partially successful, revival of the doctrine he set forth in 1976 in National League of Cities v. Usery.”

On a rather different note, Prof. Daniel Farber (Boalt) considered the issue of separation of powers as exemplified by the 1988 decision in Morrison v. Olson, which upheld the special counsel law, and hence led to Ken Starr’s prosecution of President Clinton. This decision “dramatically halted the efforts by Justice Scalia and other supporters of the ‘unitary executive theory’ to eliminate independent agencies and centralize power in the President.”

Prof. William Marshall (North Carolina) considered the issue of state immunity from tort suit as addressed in the Eleventh Amendment.

When Rehnquist joined the Court in 1972, the right of the states to be immune from suits for damages brought by individual citizens was under siege from a variety of doctrinal fronts. Justice Rehnquist… reversed course….In two cases early in his tenure, Rehnquist both turned back the existing challenges to state immunity and created the intellectual foundation for (its) future expansion.

Prof. Philip Frickey (Boalt) examined Rehnquist’s work in often unpublicized cases involving statutory interpretation, which make up a substantial part of the Supreme Court’s workload. Frickey observed that “Rehnquist has done more than his share of (this) routine work of the Supreme Court with good cheer, few complaints, and an admirable humility.” When constitutional values do come into play, Frickey argues that it can be said that “Rehnquist’s voting record is best explained as implementing the preferences of the Republican Party,” as Prof Tushnet has averred. But, it can also be said that his votes in statutory cases, “travel a methodologically defensible path based on a version of pluralist theory that assumes legislatures often reach good results, that courts are not well-equipped or even authorized to displace legislative policy judgements, and that local decisions are to be preferred to national ones,” as Prof. Merrill has argued. As discussed below, when it comes to a choice between his principles of federalism, and the politics of the individual case, Rehnquist has more often stuck to his principles over politics, as his dissent in the medical marijuana case illustrates.

Professors Ruth Colker (Ohio State) and Kevin Scott (Texas Tech) did a statistical analysis of Rehnquist’s federalism decisions. They found that Chief Justice Rehnquist does in fact

demonstrate the respect for the balance between stat
e and federal governments that he has articulated in so many of his opinions…he places the actions of (federal and state) governments on equal footing. Rehnquist also demonstrates a fair amount of judicial restraint, frequently tolerating state (and federal) action even if the underlying action is liberal….Ultimately we conclude that while there is an ideological component to Chief Justice Rehnquist’s jurisprudence, there also appears to be evidence of a sincere commitment to the protection of the line between national and state governments.

The final topic of the conference was Rehnquist’s view of the scope of various rights under the Fourteenth Amendment. As to abortion rights, Prof. Dawn Johnsen (Indiana Bloomington) observed that

Rehnquist’s abortion opinions over the years are striking in how little they have to say about abortion per se….Rehnquist has based his opposition to Roe v. Wade instead on an extremely narrow view of individual “liberty” protected against government intrusion….

However, as is well known, so far Rehnquist has failed in his efforts to overturn Roe, despite his claim in dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey that “Roe continues to exist, but only in the way a storefront on a western movie set exists: a mere facade to give the illusion of reality.”

Prof. Neil Devins (William & Mary) considered the Chief Justice’s opinion in Washington v. Glucksberg where the Court held that there was not a “right to die”and, more generally, the Court’s decisions on the right to privacy. In Glucksberg, the Court upheld the constitutionality of a state statue forbidding assisting a suicide. Although the 5 member majority opinion is “filled with internal inconsistencies and a startling disregard of precedent” Devins attributes this to “likely compromises that the Chief Justice made in order to secure the vote of the Court’s swing Justices” O’Connor and Kennedy. However, this left an opinion that was “so indeterminate as to be without precedential force” paving the way for Justice Kennedy to totally ignore Glucksberg six years later in striking down the Texas sodomy statute, on “right to privacy” grounds in Lawrence v. Texas.

Prof. David Barron (Harvard) considered the topic of “state action.” A prerequisite to an assertion of a constitutional right is that the person against whom the assertion is made be a governmental (i.e.”state”), not a private, actor. Rehnquist has been instrumental in limiting what is considered “state action” and therefore the range of activities subject to constitutional limitation. As Barron observed:

An increasingly popular view argues that Rehnquist’s jurisprudence is marked by an unusually strong embrace of judicial supremacy. But it is hard to square that critique with his consistent efforts…to narrow the scope of judicial authority to impose constitutional constraints. At the same time, his state action decisions do not support the view…that his Court has been overly deferential to politics. The striking thing about his state action decisions is that they limit the scope of constitutional reach without deferring to majority decision making. Instead, they consistently assert the independence of private action from governmental authority…. Rehnquist’s jurisprudence in many ways has more to do with privatizing the Constitution than entrusting it to, or wresting it from, the people.

In the book we leave the last word to Prof. Earl Maltz and his paper "The Intractable Problem of Race." Maltz notes that “in general terms, Rehnquist accepted the consensus view condemning racial discrimination.” However, Rehnquist was a staunch supporter of neighborhood schools, and consequently against busing as a remedy for de facto school segregation. This led to his key decision in Board of Education of Oklahoma City v. Dowell in 1991, ending busing in that city. By contrast, when it came to affirmative action, Rehnquist’s view that “under our Constitution, the government may never act to the detriment of a person solely on the basis of that person’s race,” has not prevailed. Most recently, Rehnquist found himself on the losing side of Grutter v, Bollinger which upheld the University of Michigan Law School’s affirmative action program. Finally, Maltz notes that, “the only area where Rehnquist was less categorical in his opposition to race-conscious government has been in cases involving the creation of electoral districts.”

What does all this mean? Rehnquist’s legacy will be one of staunch conservatism, with a very narrow view of judicially protected constitutional rights, and a broad view of the authority of the democratically elected branches of government. But, where a conservative social view clashed with a conservative view of the power of states within the federal system, he often allowed the states’ power to trump conservative social values.

Craig Bradley is the James L. Calamaras Professor of Law at the Indiana University School of Law Bloomington, and a former clerk (1975-76) to then-Justice William Rehnquist.

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