The Tragedy of Rehnquistio

Oral argument from the court.
Dec. 2 2000 1:30 AM

The Tragedy of Rehnquistio

Click hereto listen to the 90-minute audio from today's hearing, and hereto read a transcript. 

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Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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It's better than Shakespeare. It's Shakespeare without the dead people.

A powerful ruler has held his fractious kingdom together by nothing more than the dint of his will. He has no power—"neither sword, nor purse"—other than what is accorded him by history and popular acceptance. Well aware of this, the iron-willed monarch (call him Rehnquistio) has managed, for 14 years, to hold the yipping, howling world at bay. There are no "Impeach Rehnquistio" bumper stickers to be found anywhere across the land.

This ruler has crafted for himself a credo that will become, in effect, his legacy: The States shall have rights; the High Court shall not legislate; the High Court shall become smaller, yet in doing so, it shall wax even more powerful. And for 14 years, Rehnquistio has shored up his legitimacy by producing narrow opinions, by avoiding sweeping activism, by rolling back federal attempts to usurp state powers, by encouraging collegiality within his court, and by remaining out of sight of the shrieking villagers with their pitchforks and flaming torches.

Until one day (call it Act II), everything threatens to come apart. With the slightest ticktock of a constitutional moment, family loyalties, blood feuds, wise ministers, betrayal, and a smartass chorus of roving journalists are howling at the gate. And suddenly, like Lear upon the heath, Chief Justice Rehnquistio sees his delicate, glorious kingdom on the brink of collapse.

The chief justice is not immune to the power of the theater. An acclaimed opera-buff, he adds stripes to his own robe after seeing the Lord Chancellor in a production of Gilbert and Sullivan's Iolanthe. Does he peek out from behind the red curtain as the luminaries settle into their seats in his courtroom today? "Warren Christopher," whispers the Chorus, scribbling furiously. "There's Ted Kennedy!" "Bill Daley," we scribble. "Gorgeous blonde," whispers someone, then amends it to, "hmmm ... make that 'attractive blonde.' " "Orrin Hatch." "Karenna Gore ... "

While Lear had three beautiful daughters to lean on, Rehnquistio has five immutable principles. And as Ted Olson, lawyer for the princeling (George Bushio) rises to speak, it is plain that each of these preciously guarded credos risks imploding today. The world is topsy-turvy. The rumbling of the pillars points up how risky the court's decision to interpose itself into this conflict has really been:

Judicial Restraint: The first of the Rehnquist credos is that there must always be a justiciable federal issue. Ironically, one of the legacies of the Rehnquist Court will be that it evinced less interest in shaping this country than in reshaping its own role in this country. Like Banquo's ghost, the court's power lies in its ability to periodically make itself disappear. It does this by deferring to another body of government whenever it can legitimately do so. The following colloquy is hardly a rarity in the Rehnquist Court:

From the Bench: "I do not know of any case where we have impugned a state Supreme Court in the way you have."

"This is a very important issue," replies Olson, "A presidential election."

The Bench: "We owe the highest respect to the state court when it says what the state law is."

The only surprise here is that it's Justice Ginsburg supplying the standard-issue Rehnquist questions.

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