Washington enjoys nothing so much as a cat fight between friends, and last week’s spat between Supreme Court Chief Justice William Rehnquist and the Republican Senate was a doozy. In his annual report on the judiciary–usually a highly unmemorable document–the chief justice criticized the Senate for stonewalling President Clinton’s judicial nominees. Noting that 10 percent of federal judgeships are vacant and caseloads are rising, Rehnquist warned that “the Senate should act within a reasonable time to confirm or reject [nominees]. Some current nominees have been waiting a considerable time for a Senate Judiciary Committee vote or a final floor vote.” By Rehnquist standards, those were fighting words.
Senate Judiciary Committee Chairman Orrin Hatch tried to shift the blame to President Clinton for nominating “liberal activists,” but he was too late. The spin had been spun. Editorial pages and pundits agreed: If a conservative ideologue like Rehnquist says the Senate is crippling the federal courts, then Something Must Be Done.
The reaction to Rehnquist’s comments highlights a common misunderstanding about the chief justice. Rehnquist is popularly viewed as a conservative soldier first and last, a partisan in the service of the Republican revolution. But what really defines Rehnquist in his role as chief justice is not conservatism–though he’s certainly very conservative–it’s Taylorism. Like Frederick Winslow Taylor, the apostle of “scientific management,” Rehnquist champions rationality and efficiency above all.
Once upon a time, Rehnquist was a real bomb thrower. The chief justice is a Republican to his bones. Raised in a Republican home in an all-Republican Wisconsin town, Rehnquist eventually settled in Republican Arizona, where he allied early and avidly with Barry Goldwater. In 1969, after 16 years in private practice, Rehnquist came to Washington to serve Nixon as an assistant attorney general. Two years later, Nixon appointed him associate justice.
F rom an early age, Rehnquist believed passionately in states’ rights. (This principle has haunted him. Click to read why.) He was appalled by the way federal courts were intervening in state and local governance, coddling criminals, and expanding individual rights. He was an early convert to judicial restraint, concluding that federal courts should butt out and let elected governments do their job. Rehnquist was the Burger court’s outlier, writing lonely, sclerotic dissents and preaching a conservative legal philosophy long before it became popular. (Rehnquist is a supreme rationalist, and even his critics admired the analytical force of his dissents.)
The Supreme Court slowly began to catch up to Rehnquist, and in 1986, Reagan elevated him to chief justice. But after 11 years, it’s still hard to characterize the Rehnquist court. There isn’t a consistent conservative majority, and philosophically, the court is a muddle–“a pudding without a theme,” says Yale law Professor Akhil Reed Amar, quoting the old saw. It’s more conservative than its predecessors (especially on race and crime), but most of its major decisions (on abortion, gay rights, Internet free speech) have been moderate or liberal. Instead, what seems to define the Rehnquist court is Rehnquist’s style. His success on the court is a success of process: Rehnquist has made the Supreme Court do less and do it more rationally. He has not grown in office. He has shrunk in it.
One of Rehnquist’s proudest achievements as chief justice has been to pare the court’s docket. The Burger court heard oral arguments in 160 or more cases every term. Rehnquist and his colleagues hear half as many cases. The result, wonderfully satisfying to Rehnquist, is less judicial meddling. “His great contribution as chief justice is that the role of the Supreme Court today is smaller than it was 20 years ago,” says a former Rehnquist clerk. Rehnquist has pushed to minimize federal jurisprudence at every level. He may have requested more judges, but only because the courts are clogged and slow. He has urged Congress repeatedly to stop federalizing crimes. Fundamentally, Rehnquist doesn’t want more federal judges; he wants fewer federal laws.
The two areas of law that matter most to Rehnquist are habeas corpus reform and criminal-procedure reform. He campaigned vigorously and successfully to restrict the number of habeas appeals for death row inmates. This has limited federal involvement in state cases and, more importantly, sped up the judicial process. “He has intense anger about convicts who after 13 years are on their seventh appeal. He thinks that things should not be chewed on endlessly,” says Emory University legal scholar David Garrow. In criminal procedure, Rehnquist’s decisions have weakened the Miranda rights, nibbled away at the exclusionary rule, and granted cops more leeway to conduct warrantless searches. These procedural reforms remove the “technicalities” that Rehnquist believes clutter and pollute the legal system.
Rehnquist’s decisions, too, are becoming increasingly streamlined. Associate Justice Rehnquist was famed for his witty, explosive writing. Chief Justice Rehnquist leaves the verbal pyrotechnics to Antonin Scalia. Today, Rehnquist’s opinions are skeletal: Scholars complain that his reasoning is almost nonexistent. Rehnquist’s pithiness is the pithiness of the victor. Two decades ago, he wrote extensively because he had to explain his unfamiliar views to a liberal world. Now, his views are mainstream law. He doesn’t need to elaborate on them.
Even the court’s operations are evidence of Rehnquist’s efficiency. Under Burger, the conference–the meeting where justices discuss cases–was a notoriously windy affair. Rehnquist’s conferences are no-nonsense. He permits little discussion–he doesn’t think it changes anyone’s mind–and races through votes. He prods fellow justices to turn in draft decisions promptly and penalizes tardy colleagues by withholding new assignments. The justices who disagree with Rehnquist politically love him as a colleague: He’s fair, agreeable, and fast.
Until two years ago, it was ritual among Supreme Court-watchers to speculate that “this term” would be Rehnquist’s last. He was too old, his back hurt too much, he had too many outside interests … But recently, the speculation has subsided. There are two explanations for why the 72-year-old Rehnquist is staying put. One is political: He’s enough of a Republican not to quit until Clinton is out of office. I favor the second explanation. Why would he bother to retire? Every year he has less work to do. He’s made sure of that. The efficient justice arrives at the court around 9 and leaves by 3–what other job in Washington has such sweet hours?
