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March|April 2005
Insult to Injury By Reynolds Holding
Right On By Richard W. Garnett
Wrong, But Not Too Right By Kermit Roosevelt
The Mine Line By Geoffrey Gagnon
How the West Was Lost By Daniel Brook
Saving the Race By Daniel J. Sharfstein
A Crime With a Name By Nicholas Thompson

Right On

The conservative principles William Rehnquist revived will guide the court for decades to come, making him one of the most dominant chief justices in American history.

By Richard W. Garnett

I SERVED AS A LAW CLERK TO WILLIAM REHNQUIST during the 1996-97 Supreme Court term. That year marked his 25th anniversary on the court and his 10th as chief justice. To celebrate these milestones, and against the advice of friends with literary scruples, I composed a poem for the annual Rehnquist clerks' reunion. My tribute purported to be inspired by John Greenleaf Whittier's "Barbara Frietchie," which tells of an elderly Maryland woman, "bowed with her fourscore years and ten," who waved the Union flag in defiance at invading Confederate troops, and which Rehnquist quoted at length in a passionate dissent opposing the protection of flag-burning as free speech. My poem, "The Lone Ranger," opened with these forgettable lines about my boss:
First from Wisconsin's cold and sleet,
Then east from the desert's arid heat,
He came with sideburns and overwide ties,
"Do strict construction!" Nixon advised.
Actually, President Richard Nixon remarked, after meeting the future chief justice in 1971, that "Renchberg" looked like a "clown," with his pink shirt, psychedelic tie, and mutton-chop sideburns.

Three decades later, Walter Dellinger, a respected scholar and former acting solicitor general for President Bill Clinton, called Rehnquist one of "three dominant chief justices of American history." The others are John Marshall, the early chief justice who transformed the Supreme Court's role and interpreted the Constitution to unify the new nation, and Earl Warren, who committed the federal courts to protecting individual rights by expanding their power over state and local officials. What has Rehnquist done to gain admission to this select group?

Not all court-watchers are confident about Rehnquist's "dominance." As the results in the court's most contested cases seem increasingly to reflect the more moderate views of a few swing justices, some believe that Rehnquist has become, in the words of the lawyer Cliff Sloan, "the Invisible Man." On his watch the court has upheld race-based affirmative action, struck down restrictions on late-term abortions, embraced gay rights, protected online pornography, and even reaffirmed—in an opinion authored by the chief justice—that White Whale of law-and-order conservatives, Miranda v. Arizona.

Nevertheless, Rehnquist has significantly reshaped and reformed our constitutional law. Take, for example, the area of religious freedom. Throughout the 1970s, the court's interpretation of the Establishment Clause, which was designed to protect religious liberty by limiting government power, tended instead to be almost faith-phobic. In cases involving state aid to children in religious schools, several of the justices were often distracted by a suspicion of parochial education and by what Rehnquist correctly called "Jefferson's misleading metaphor" of a "wall of separation" between church and state. Yet over the years Rehnquist has guided the court toward a more balanced position that calls for government neutrality, not hostility, toward religious choices, institutions, and activities. These efforts paid off in Zelman v. Simmons-Harris, the 2002 decision in which a majority led by Rehnquist upheld Cleveland's school voucher program, which includes religious schools. As Rehnquist recognized, Cleveland's experiment is an evenhanded effort to expand opportunities for low-income kids, not a first step toward theocracy.

To understand Rehnquist's impact more generally requires recognizing that even the so-called swing justices invoke principles and think in terms that Rehnquist revived. He has dramatically "shifted the center of the discussion," as Duke law professor Jefferson Powell put it. According to Powell, Rehnquist "took the long view, and he has won." Time and again—for example, in cases involving the Fourth Amendment's ban on unreasonable searches and seizures, or the appropriate balance between local control and federal power—seeds that Rehnquist planted decades ago in solitary and provocative dissents have taken root and flowered. As Walter Dellinger observed, Rehnquist's achievement is to have pushed into the mainstream once idiosyncratic views of state sovereignty and limited federal power.

For Rehnquist's 25th anniversary reunion, we law clerks collected a variety of the best lines and most memorable quotations from his many opinions—a law geeks' top 10 list. We included some lighthearted excerpts, including the chief's travelogue-style guide to the winding course of the Arkansas River and his tongue-in-cheek speculations about the likely reactions of the soldiers who fought at Gettysburg to the court's decision to strike down a New York law regulating the sale of contraceptives to minors. (Rehnquist surmised that the soldiers would have been surprised to learn that their efforts would one day lead to a constitutional right to peddle condoms at truck-stop vending machines).

Also on the list, though, were two pithy statements that go a long way toward capturing Rehnquist's judicial philosophy and legacy. "We start with first principles," he wrote in United States v. Lopez, the court's 1995 ruling that Congress lacks the power to make it a crime to bring a gun within 1,000 feet of a school. "The Constitution creates a Federal Government of enumerated powers." There it is, short and sweet: We the People have authorized our federal courts, legislators, and administrators to do many things—but not everything. Because the nation's powers are, in James Madison's words, "few and defined," Congress may not pursue every good idea or smart policy. The point of this arrangement, Rehnquist reminded us, was not to hamstring good government or throw up roadblocks to democracy, but to "ensure protection of our fundamental liberties."

There is also this from Rehnquist's dissent in Texas v. Johnson, the flag-burning case: "The Court's role as the final expositor of the Constitution is well established, but its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government." This rebuke eloquently states Rehnquist's view of the function of judges and engages the primary argument of his contemporary critics. Prominent legal scholars like Yale's Jack Balkin and Stanford's Larry Kramer often charge that Rehnquist's calls for judges to act with restraint, humility, and deference are little more than disingenuous cover for his conservative activism. Rehnquist and his allies, the argument goes, have embraced judicial supremacy while professing judicial restraint, and have proved far more willing than their liberal predecessors to invalidate measures like the gun-control law at issue in Lopez.

This line of attack is misguided, though, and misses Rehnquist's point. Put aside that many of the critics who cry "judicial supremacy!" when the court limits Congressional power in the name of federalism go quiet when it strikes down pornography regulations in the name of freedom. In Rehnquist's view, even an appropriately restrained judge is not a rubber stamp for the legislature. It is neither arrogant nor illegitimate for judges to enforce strictly the Constitution's textual limits on federal power and the boundaries it sets between the different branches of government. This kind of judging is not antidemocratic. It does not end public debate on difficult questions or substitute judges' policy preferences for those of We the People.

When the court rules, as it did in Lopez, that the Constitution does not give Congress the power to make it a crime to possess a gun near a school, it says nothing about the wisdom or validity of local efforts to combat gun violence. A decision like Lopez treats no one like "truant schoolchildren" and it declares no policy camp the loser. Instead, such rulings reaffirm that, under our Constitution, not every problem has a federal solution and few moral disagreements can or should be resolved by judicial decree. When, for example, Rehnquist refused in the 1997 case Washington v. Glucksberg to invent a right to doctor-assisted suicide, he never claimed a mandate to decide whether the practice was callous or compassionate, dignified or dangerous. Instead, he was content to observe that "throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality, and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."

Contrast this approach with the judicial highhandedness on display in the court's 2000 Stenberg v. Carhart decision, which nullified the judgment of dozens of states that partial-birth abortion comes too close to infanticide to tolerate. The majority in that case—Justices Stephen Breyer, Ruth Bader Ginsburg, Sandra Day O'Connor, John Paul Stevens, and David Souter—branded the large majority of Americans who recoil from this procedure as constitutional outlaws, effectively telling them (over Rehnquist's dissent), "you lose, be quiet, go home." The court's activism in that case did not merely relocate a policy dispute to a different arena; it insulated one side's position from democratic debate and legislative dialogue on the theory, apparently, that judges know best. Rehnquist's legacy, by comparison, is one of profound humility.

REHNQUIST'S LEGACY SHOULD NOT BE ABOUT ONLY FEDERAL POWER and judicial review. I hope it will also reflect his basic decency, his unassuming brilliance, his dry and ready wit, and his down-to-earth common sense. Think about it: For nearly 20 years, the chief justice of the United States has been a writer of popular history— including, most recently, Centennial Crisis: The Disputed Election of 1876—as well as a Weather Channel fan, a sucker for charades and Gilbert & Sullivan musicals, a cagey tennis player, and a fan of the Green Bay Packers, March Madness, and Miller Lite.

A few years ago, lured by great football seats, Rehnquist visited my First Amendment class at Notre Dame Law School. After a few predictable questions about the court's recent decisions, the conversation turned to the most pressing challenge for law students and young lawyers today—building a balanced life that integrates work, family, community, and values. I have rarely seen the chief so animated as when he shared with the class his hopes for the legal profession and for their happiness in it. He warned that with the rewards of a life in the law come hard choices and trade-offs. Citing the wonderful old Frank Capra movie, You Can't Take it With You, Rehnquist urged my students to take the long view in their lives and to remember what, in the end, really matters. That advice is a worthy legacy.

Richard W. Garnett clerked for Chief Justice William Rehnquist from 1996 to 1997. He is an associate professor of law at the University of Notre Dame.

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