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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

Wrong, But Not Too Right

Rehnquist has cared more about expanding his court's power than sparking a conservative revolution.

By Kermit Roosevelt

DURING A CLERKSHIP INTERVIEW WITH CHIEF JUSTICE WILLIAM REHNQUIST in the summer of 1997, I asked if he had any favorite poems. With a smile, Rehnquist quoted the last two stanzas of "Say Not the Struggle Nought Availeth," by the 19th-century poet Arthur Hugh Clough:
For while the tired waves vainly breaking
Seem here no painful inch to gain,
Far back, through creeks and inlets making,
Comes silent, flooding in, the main.

And not by eastern windows only,
When daylight comes, comes in the light,
In front the sun climbs slow, how slowly,
But westward, look! the land is bright.
I was not surprised—my pre-interview research had introduced me to Rehnquist's fondness for Clough. I had even committed the lines to memory myself and considered chiming in, but in the end decided an echo would smack of overstudy. The interview did not go especially well in any event. I unwisely embarked upon a discussion of my undergraduate thesis on Wittgenstein. The chief justice listened politely and, when I finished, he remarked that philosophy left him feeling as if he'd gone out the same door he came in. He did not hire me, but I appreciated the recitation. As Rehnquist spoke those lines, I felt he was describing his tenure on the Supreme Court: the initial period of lonely dissent, the accretion of a majority, and then the transformation of the law.

At the time, seven years ago, the description seemed accurate. The Burger Court to which President Richard Nixon appointed Rehnquist in 1971 still bore the liberal imprint of Warren Burger's predecessor, Earl Warren. In those early years, Rehnquist wrote so many solo dissents that his clerks presented him with a Lone Ranger doll. But time shifted the court to the right. For the past decade, Rehnquist has had the company of six other Republican-appointed justices, and with their support he has achieved a great deal.

Yet the last few terms have highlighted the degree to which the court's conservative majority has proved tenuous and prone to unpredictable fractures. As a result, Rehnquist has accomplished less than might have been expected. That's in part because two of the Republican appointees, John Paul Stevens and David Souter, have sided consistently with the moderates appointed by President Bill Clinton. But to some extent Rehnquist is responsible for the limits on the success of the conservative agenda. His substantive goals—narrowing individual rights and reducing the power of the federal government—have been sidetracked by his desire to expand the court's authority and by his distaste for constitutional theory.

President Ronald Reagan elevated Rehnquist to the chief justice's chair in 1986. With the help of his new conservative colleagues, the new chief won some notable victories, for example in his quest to cut back on the availability of the writ of habeas corpus to criminal defendants. But the rising conservative tide broke in 1992 with Planned Parenthood v. Casey, which raised the possibility of overruling Roe v. Wade. Three Reagan-Bush appointees—Sandra Day O'Connor, Anthony Kennedy, and Souter—wrote a plurality opinion retaining Roe's central recognition of a constitutional right to abortion. Rehnquist dissented, but it was clear that his court would not be the one to undo Roe.

Instead, a five-justice majority came together behind a different element of the conservative agenda, one that makes fewer headlines but matters a great deal to constitutional law. In the 1995 decision United States v. Lopez, for the first time in almost 60 years, the court struck down a federal statute as exceeding Congress's power under the Commerce Clause. Subsequent decisions seemed to confirm the federalist revival: The court also took a narrow view of Congress's enforcement power under the Fourteenth Amendment and crafted a broad doctrine of state sovereign immunity.

Commentators tend to choose the apparent federalist revolution as Rehnquist's greatest achievement. But its meaning and durability remain unclear. In a 1976 opinion, Rehnquist argued that the federal government should be forbidden from interfering with what he termed the "integral governmental functions" of the states. The rule enunciated by Lopez and its successor, United States v. Morrison, however, does not similarly focus on state sovereignty. It restrains Congress in ways that are relatively minor and, more significantly, are unconnected to any articulated set of important state functions. Rehnquist's opinion in Morrison, which struck down the federal cause of action for victims of gender-motivated violence, has little concern for whether the line it draws protects a liberty that is of real value to individuals or to states. It seeks simply to find a limit that courts can enforce.

Morrison is as much concerned with the relationship between Congress and the court as it is with that between Congress and the states. The conservatives' attempt to give meaningful protection to the states has transformed itself into a quest to ensure that the court has the last word on the scope of federal power. Federalism has been hijacked by judicial supremacy.

Sacrificing ideological goals at the altar of the court's pre-eminence is a recurrent theme of Rehnquist's jurisprudence. Perhaps the most striking example is Dickerson v. United States, the 2000 challenge to the Miranda warnings, that the Warren Court ordered police 34 years ago to read to criminal suspects. Rehnquist had been one of Miranda's early critics. Now he had a chance to disavow the ruling.

But to do so, Rehnquist would have had to accept Congress's attempt to overrule Miranda in a little-noticed 1968 statute. That would have meant granting Congress some apparent control over the meaning of the Constitution, and Rehnquist refused. "Congress," he wrote, "may not supersede or override our decisions interpreting and applying the Constitution."

Sporadic detours from the conservative agenda to augment the power of the court would pose little threat, if Rehnquist could control their occasion. Bush v. Gore is the exemplar of such a carefully limited excursion. Rehnquist and the other four conservative justices cast aside federalist values by rejecting the Florida Supreme Court's interpretation of Florida law while expressly confining their aggressive intervention to the facts of that case. But the court's embrace of judicial supremacy has left Rehnquist out in the cold at times as well. In last term's Rasul v. Bush, the court rejected, over Rehnquist's dissent, President Bush's claim of sole authority over the Guant
ánamo detainees, and it held that the detainees could bring habeas petitions in federal court. Rehnquist's attachment to judicial supremacy has bred a doctrine that exceeds his grasp.

That has been the case in the area of individual rights, where an aggressive judiciary tends to expand individual liberty. More surprisingly, it seems to be occurring in the federalism arena as well. Here, Rehnquist's intellectual style is partly the cause. His majority opinions clearly state his interpretation of the law, but they eschew comprehensive theories. Rehnquist is not enamored of high-flying intellectualism, and as a judge he feels no need to offer complicated rationales for his rulings.

Under-theorizing may make it easier for an opinion's author to bring together a majority in the immediate case, but it restrains an ambitious agenda. A seemingly solid coalition may fragment in future cases as its members realize they don't share the same animating principles. An under-theorized revolution may produce results that surprise even the revolutionaries.

In 2003's Nevada v. Hibbs, Rehnquist unexpectedly wrote a majority opinion upholding the Family and Medical Leave Act, which entitles employees to 12 weeks of unpaid leave to care for family members. The court ruled that the act was a valid exercise of Congress's enforcement power under Section Five of the Fourteenth Amendment. The decision is hard to square with the court's earlier Section Five cases and, in classic Rehnquist fashion, the nature of the distinction is left largely unstated. One possible interpretation is that Congress has greater leeway to address types of discrimination—such as gender-based discrimination—that courts have held are usually unconstitutional.

That Rehnquist might not have intended that principle, or, if he did, that he intended a narrower version, became apparent in Tennessee v. Lane. In that case last term, the court said that Title II of the Americans with Disabilities Act, which ensures access to public facilities, was also a permissible exercise of Congress's power. Differential treatment of the disabled is usually constitutionally acceptable, in contrast to discrimination on the basis of gender or race. But the majority in Lane upheld Title II of the ADA as an effort by Congress to preserve the fundamental right of access to the courts. Rehnquist dissented, protesting vainly that Title II was "an illegitimate attempt to rewrite the constitutional provisions it purports to enforce."

From Rehnquist's perspective, Lane was a setback for both federalism and judicial supremacy. The diversion in Hibbs had proved costly. Of course, it may be that a more tightly written Hibbs opinion would have drawn protests from the other justices in the majority. It may even be, as some have speculated, that Rehnquist opposed the result in Hibbs and took the majority's side only to limit the damage by writing a narrow opinion. Either way, in Lane, the chief justice lost.

Without a clear animating theory, the court's federalism cases have become increasingly hard to predict. The rules they announce have been and will continue to be equally difficult for lower judges to apply. As the court tacks back and forth, the wind is slipping from its sails. Justices appointed by President George W. Bush may consolidate conservative gains or find new ways to push the federalism agenda further. But the early returns on the Rehnquist revolution suggest a legacy more limited and ambiguous than seemed likely even a few years ago. Rehnquist's court has proved to have a mind of its own.

Kermit Roosevelt clerked for Justice David Souter rom 1999 to 2000. He teaches constitutional law at the University of Pennsylvania Law School and is the author of the forthcoming novel In the Shadow of the Law (Farrar, Straus & Giroux).

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