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Posted by on Sep 8, 2005 in At TMV | 0 comments

Judging Rehnquist, Part II

On Tuesday, co-blogger David Schraub posted on Alan Dershowitz’s scathing indictment of William Rehnquist, just days after the chief justice’s death from thyroid cancer. (I’d call it a eulogy, but then it must be considered one of the nastiest of all time.)

I’ve got my own take on Dershowitz’s remarks — click here.

However much I may agree (or disagree) with Dershowitz’s assessment, I just can’t let him have the final word on Rehnquist, and so I turn now to Slate senior editor and SCOTUS watcher Dahlia Lithwick, whose own assessment of Rehnquist’s career, however “liberal,” is rather less bloodthirsty.

Lithwick focuses on what Rehnquist didn’t do. Unlike Thomas, he didn’t grow “bitter,” “reclusive,” or “vengeful” in the face of criticism and ad hominen attacks (justified or not). Unlike Scalia, he didn’t “[use] his writing as a showcase for his own brilliant, persuasive ideas” (assuming, I suppose, that Scalia’s ideas are both brilliant and persuasive — I do not make that assumption here). And unlike the other conservatives on the Court, he didn’t vote to overturn Miranda in 1999.

Here’s what he wrote about a suspect’s constitutional right to a police warning as guaranteed by Miranda (“You have the right to remain silent…” etc.): “We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves… We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”


Something else Rehnquist was not: He was not an Earl Warren. He did not expect or demand that the changes he sought would come with sudden, dramatic moves. He was the gentlest of constitutional chiropractors and—with the exception of Bush v. Gore—you rarely heard a crack or a snap over his tenure. Rehnquist didn’t cajole his colleagues into unanimity and rarely used his assignment powers as strategically as his predecessors had. Indeed, he was notoriously fair about assigning cases. Rehnquist also refused to let the work of the court continue to grow exponentially. Where the Burger Court used to hear argument in 160 or so cases each year, the Rehnquist Court heard closer to 80. Rehnquist’s style was to nudge the law back to the right slowly and inexorably, on issues ranging from civil rights to habeas corpus, from school busing to religion in public life. But he didn’t throw constitutional bombs, and as a result his Supreme Court, as “activist” as the Warren Court by every possible measure, was not reviled and feared so much as respected and ignored.

What Rehnquist also refused to do was to jump on the judge-bashing bandwagon, even when he might have agreed with the tenor of the criticisms. Unlike his former law clerk John Roberts, with whom his views are otherwise remarkably congruent, Rehnquist did not tolerate expressions of contempt for the judiciary, or approve of measures to limit its powers. He used his Annual Report on the Judiciary, usually something of a snooze-fest, to castigate the Republican-led Senate for blocking Clinton’s judicial appointments and, more recently, to defend judges from attacks by right-wing demagogues. As he warned this year: “Although arguments over the federal Judiciary have always been with us, criticism of judges, including charges of activism, have in the eyes of some taken a new turn in recent years… Congress’s authority to impeach and remove judges should not extend to decisions from the bench. That principle was established nearly 200 years ago in 1805. … Any other rule would destroy judicial independence.”

Which is to say, he wasn’t Tom DeLay or any of the other right-wing fanatics who seek to turn the judiciary into their own political weapon. However:

No one will ever accuse Rehnquist of having been a liberal, or even a moderate. But, as Walter Dellinger points out today, time and again, in cases that implicated the supremacy of the judicial branch—cases that suggested that states or Congress might have the last word—Rehnquist was willing to part with his ideological buddies to promote a higher value than intellectual purity: the court itself.

And in this he triumphed:

Much will be made in the coming days of Rehnquist’s so-called failures, most notably his failure to roll back the Warren Court’s most sweeping rulings. Abortion, affirmative action, and gay sodomy are all legal in Rehnquist’s America. But my guess is that Rehnquist, unlike Scalia, Thomas, or the court-bashers on the far right, was pragmatic enough to recognize that those were just side battles. He had won the war. A keen observer of history, Rehnquist always knew that he was making history and not merely law. With a potent blend of minimalism and control, he built a court that was, like himself, supreme, in terms of raw, cumulative power, national prestige, and public acceptance.

Whether America is better off after Rehnquist’s war is another matter. He may have changed the course of American history, but victory, including legal victory, does not always come to the just.

Commentary cross-posted at The Reaction, where I’ve written extensively about Roberts, the other candidates for the Supreme Court, and various aspects of SCOTUS politics — this link will take you to my initial comments on Roberts’s nomination for chief justice and a list of all my posts on these topics.