William H. Rehnquist: in memoriam.

Bringing out the dead.
Sept. 4 2005 12:08 PM

In Memoriam

William H. Rehnquist, the man who devised the natural law of federalism.

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Chief Justice Rehnquist

The Rehnquist Court belongs to history. William H. Rehnquist will likely be seen as one of the three most influential chief justices in history, surpassed perhaps only by John Marshall and Earl Warren. Whether that influence was, on balance, benign will be one of history's great debates.

There will be little dispute that Rehnquist was a great leader and effective administrator of the Supreme Court and the national judiciary. He ran a tight ship in the great marble temple that houses the court. Every justice with whom I have spoken in recent years has noted that the court was functioning well under his leadership. Because of the power of his intellect—many law clerks thought him the smartest justice on a generally smart court—he quickly grasped the key issues in each of the complex and numerous cases that came before the court. As a consequence, he was able to lead the court's discussions in conference with efficiency and dispatch. Some colleagues thought he presided over these confidential sessions with too much efficiency, sometimes unduly limiting discussion. But all seemed to prefer his strong hand to the wandering, confused leadership of his predecessor Warren Burger. The effect of installing a new chief will be more profound than we can easily grasp. The new chief—if he or she comes from outside the court—will face a daunting task of leading such a powerful and experienced group.

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Rehnquist could be gracious in social settings. Although I was of the "other party," he was warm and welcoming when I became acting solicitor general, inviting me over for tea and discussing how he thought the office could best be conducted. More recently, at a dinner at our home the night before I interviewed him publicly at Duke University Law School, he was relaxed and witty, discussing movies and popular culture with sparkle and, almost, verve. On the bench, he was another story—a most fearsome and incisive inquisitor. His questioning was sharp, and usually fair, but at times unnecessarily abusive to inexperienced advocates. He did not suffer fools gladly.

What is most important, however, is Rehnquist's jurisprudential legacy. In no small measure by the sheer power of his intellect, he made state sovereignty once again a central principle of American constitutional law. When serving as the court's most junior justice, he boldly authored a dramatic dissenting opinion in an otherwise routine case called Fry v. United States, a dissent joined by no other member of the court. In his first articulation of his theory of state sovereignty, he frankly stated that his position rested on "no explicit constitutional source" but rather on a "right inherent in [Ohio's] capacity as a State." As my Duke colleague Jefferson Powell noted in 1982, Rehnquist was "neither a strict constructionist nor a practitioner of judicial restraint."He sought, in Fry, to create a natural law of federalism, and over his lifetime, he essentially succeeded. The lonely position he took in 1973 had, by the end of his chief justiceship, become the law of the land.

History may judge favorably Rehnquist's success in asserting state's rights and the corresponding limits on national power. But on the Sunday morning of a week in which we have experienced profound embarrassment at our failure to rescue of tens of thousands of Americans in New Orleans, states' rights and limited national power seem particularly and starkly outmoded concepts.

The most profound and important aspect of Rehnquist's state sovereignty jurisprudence was his successful effort to minimize the power granted to the national government by the Civil War amendments. The 14th Amendment was designed to enable future Congresses to guarantee rights of Americans everywhere against their own state governments. I believe that Rehnquist's state-sovereignty jurisprudence unduly diminished the nationalist triumph at the 1787 Philadelphia Convention and unjustifiably marginalized the impact of the great Civil War amendments. But few, if any, in our history have been as effective in this ongoing debate as was he.

Chief Justice Rehnquist's most significant jurisprudential contribution will not ultimately be states' rights, however, but the steps his court took firmly to entrench the supremacy of the judicial branch over the president, the Congress, and the states. The Rehnquist Court has not hesitated to place judicial limits on the executive branch's treatment of detainees, even in time of war, and robustly to defend freedom of speech. This court has been quick to set aside acts of Congress because it disagrees with the social judgments of the officials who had been elected by the people of the United States. Nor did the court hesitate to step in ahead of Congress to decide a disputed presidential election.

The potential impact of the court's repeated and confident assertions of judicial supremacy have been underappreciated, largely because the exercise of that authority by the Rehnquist Court has been controlled by the two justices close to the moderate center of American political life—Anthony Kennedy and Sandra Day O'Connor. If the court were to move sharply to the political left or right, that foundation of judicial supremacy and disregard for the judgment of other branches of government could lead to truly profound consequences.

Will William Rehnquist's exaltation of the judicial role turn out to be good for America and its people? As I noted here at the end of the chief’s final term, it is too early to tell. Way too early.

Over more than a decade with no changes in composition, the Rehnquist Court became like a family. Most striking is how much the other justices—even those who often profoundly disagreed with him on the most critical issues to come before the court—seemed genuinely to like their friend Bill Rehnquist. There has been little public comment about his extraordinary physical struggles to finish the past term. The other justices, and all those who work at the court, were deeply moved at what they consider to be his truly heroic performance of duty. It was Rehnquist at his best.

Walter Dellinger was head of the Office of Legal Counsel from 1993 to 1996.

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