This year, after 33 years of service on the Supreme Court, Chief Justice William Rehnquist turns 81; he is likely to retire soon. In the last century, the average justice has served 14 years and retired at 71.
What will historians and lawyers make of Rehnquist? Perhaps his defining characteristic is that he displayed little interest in a legacy. His opinions are straightforward and workmanlike. Overblown rhetoric or appeals to broad theories and abstract principles remain noticeably absent. He sees his job simply as interpreting the constitutional text in light of its structure and history, rather than acting as a philosopher-king. He runs a tight courtroom, keeping lawyers and his colleagues within the time for oral arguments, and he doesn't grandstand by asking sound-bite questions sure to be picked up by newspapers the next day. He enjoys his anonymity to the point that he can walk around the outside of the court building to think about cases, and sometimes stops to give directions to a lost tourist.
Academics and commentators sometimes mistake Rehnquist's simplicity as a sign that the court is rudderless or controlled by moderates. To be sure, his views have not prevailed in every instance. Most notably, he has failed to convince a majority of the court to overrule Roe v. Wade, which has guaranteed the right to abortion for a quarter-century. Moderates such as Justices Sandra Day O'Connor and Anthony Kennedy seem to be calling the shots in recent cases, striking down the execution of convicted 16-year-old murderers and laws prohibiting homosexual sex. Over his long-standing dissent, the court recently allowed colleges and universities to consider race in making admissions decisions.
But this misses the broader changes in constitutional law wrought by Rehnquist. Before he became chief justice, he was sometimes known as the "Lone Ranger" for his solitary dissents from the precedents of the Warren and Burger years. When Rehnquist first joined the court, the justices were still hungover from the Warren court's revolutionary changes. It had expanded the rights of criminals so broadly as to make it difficult for police to do their jobs; it would briefly hold the death penalty unconstitutional; it had driven religion out of the public sphere; and it had removed almost all limits on the federal government's regulatory powers.
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. Most notably, in the area of criminal law and procedure, Rehnquist successfully urged the court to narrow (but not eliminate) the Miranda warning and the exclusionary rule, which prohibits the use of illegally-gathered evidence at trial. His court reversed excessive federal court interference in state supervision of the death penalty. Rehnquist long has sought to end government hostility toward religion. As a young justice, he first developed the theory that the government should treat religious groups on an equal footing with secular ones. Decades later, this approach allowed state and local communities to experiment with educational vouchers that could be used at religious schools.
Early on, Rehnquist attempted to restore the Constitution's limits on the federal government's regulatory powers over the economy. He wanted to recognize spheres of activity solely within the control of the states, and he demanded that government compensate property owners who suffered deep losses from economic and social regulation. For the first time since the 1930s, the court in the last decade has invalidated several federal regulatory schemes for going beyond the powers vested by the Constitution in the national government. It now requires compensation when government regulations seriously reduce the value of private property.
While Rehnquist famously dislikes fancy theories, animating this all has been his deep and abiding faith in the American people. Distrustful of universal government solutions to difficult problems, the Rehnquist court has sought to return the country to its Tocquevillian roots--a nation where the national government's powers are limited and private civil society governs much of everyday life; where mediating institutions, such as churches, clubs, and civic organizations, stand between individuals and the government; and where the enterprise of individual risk-takers drives the economy.
As President Bush and the Senate resolve their struggle over the filibuster of lower-court appointees--and as they move on to consider new appointments to the Supreme Court--they must decide whether to follow the course that Rehnquist has set. The next court could continue the move toward decentralized government and limits on public power, or it could put its faith again in New Deal bureaucracies, reduction of private civil society, and broader federal regulations. It is because of Rehnquist that they have this choice.
John Yoo is a visiting scholar at AEI.
