If you found your way into a law-school faculty dining room this summer, you might hear an unexpected note of regret among liberal professors imagining the Supreme Court without Chief Justice William Rehnquist. When they notice to their surprise that a conservative has “grown” during his or her time and office, liberals sometimes talk about their new favorite with Strange New Respect, as Tom Bethell of the American Spectator once put it. Justice David Souter was an early SNR recipient, and Anthony Kennedy recently got some liberal love for his stance against juvenile execution and in favor of gay rights. The SNR case for Rehnquist is harder to make, to be sure. But the chief justice has often been a pragmatist and occasionally a moderate, and liberals have a few reasons to thank him, or at least to hope that he’ll gum up the Republicans’ works by staying put.
The first thing to be said about Rehnquist’s unconservative virtues is that he’s not Justice Antonin Scalia or Justice Clarence Thomas. In his book A Court Divided, Georgetown law professor Mark Tushnet argues that the most important split on the court today is not the one between its liberal and conservative wings, but the one between sedate old-school Republicans Sandra Day O’Connor and Kennedy, who care most about states’ rights and limiting the size of government, and scenery-chewing conservatives Scalia and Thomas, who are eager to ban abortion and usher prayer into public schools. Rehnquist, Tushnet writes, “spanned both wings.” In the past decade, according to Legal Affairs, Rehnquist has voted more often with O’Connor and Kennedy (71 percent and 77 percent of the time, respectively) than with Scalia and Thomas (66 percent and 68 percent). And he’s voted with the court’s most reliably liberal justice, John Paul Stevens, in 25 percent of the court’s cases, whereas Scalia and Thomas have agreed with Stevens about 15 percent of the time.
In an Atlantic profile this spring, George Washington University law professor Jeffrey Rosen takes the praise of Rehnquist a step further, arguing that “liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology.” Much of Rosen’s evidence involves Rehnquist’s administrative skills—he keeps the trains at the court running on time—rather than his enlightened decision-making. This is a justice, after all, who has voted against preserving affirmative action, a constitutional right to abortion, ending the execution of juveniles and the mentally retarded, and preventing states and local governments from discriminating against gays. He also cast one of the five votes in the president’s favor in Bush v. Gore, despite his often-professed belief that federal judges should usually defer to state legislatures and courts.
But if to state the liberal case for Rehnquist is almost to overstate it, here goes. The chief justice wrote the majority opinion in Nevada Department of Human Resources v. Hibbs, a 2003 case that upheld Congress’ power to apply the Family Medical Leave Act to state governments. The decision entitles state workers, along with private employees, to 12 weeks of unpaid * leave to take care of a newborn or adopted baby, or a sick relative. It acted as a check to the pro-states’-rights rulings that Rehnquist otherwise has championed. The chief justice didn’t cast the deciding vote—the justices split 6 to 3. But he wrote a majority opinion that got the crucial point that feminists had made about the FMLA—that unless both men and women can take time off to care for their families, “mutually reinforcing stereotypes” will create a “self-fulfilling cycle of discrimination” in which women will always be the ones expected to stay home, and so will be less attractive to employers.
Some feminists think Rehnquist decided to write the opinion himself to ensure that it wouldn’t be more sweeping. Whether or not they’re right, he deserves credit for joining his colleagues in taking a real step toward equality in the workplace. Similarly, Rehnquist earned some liberal stripes with his opinion in Dickerson v. United States, the court’s 2000 decision upholding the Miranda warnings given to criminal suspects ever since the Warren Court’s 1966 ruling in Miranda v. Arizona. The vote in Dickerson wasn’t close either—7 to 2. But as Rosen points out, Rehnquist had long questioned the constitutional validity of Miranda, and he could have joined Scalia and Thomas in pushing to scrap it. Instead, in the face of a challenge based on a law that Congress passed in 1968 as an end-run around the Warren Court decision, Rehnquist opted to stick with the warnings (and, perhaps not coincidentally, with the court’s institutional power).
As the court’s term comes to a close, a few liberals hold out hope that Rehnquist will give them the biggest gift of all—a postponement of his expected retirement. The Bush administration has been hinting that it’s time for the 80-year-old chief justice to go since he began radiation and chemotherapy for thyroid cancer last fall. And when Rehnquist was absent from the bench for weeks, his departure seemed inevitable. Lately, however, Rehnquist has been engaged and present during the court’s public sessions, if physically frail (he travels in a wheelchair and sounds like Darth Vader when he talks because his cancer treatment included a tracheotomy). Hence the speculation that Rehnquist will foil the Republicans who are eager to get his successor’s nomination under way by deciding to stick around, at least until September—when his prognosis based on his current round of treatment may be clear—and possibly longer. Rehnquist may feel that his legacy is unfinished, particularly in the area of states’ rights, where Hibbs isn’t the only case in which the court has lately backpedaled. As a history buff, he may have his eye on the record for longest-serving justice held by former Justice William O. Douglas, who went 36 years before retiring, to Rehnquist’s current 34. He may be so closely identified with the role of justice that he can’t imagine his life without it. And he may be intensely aware that the justices who have retired as old men in recent years—Harry Blackmun, Byron White, William Brennan, Thurgood Marshall—have died between two and seven years later.
It’s hard to imagine that Rehnquist would want to stay too long and risk in any way stalling the nomination of his successor beyond the end of Bush’s presidency. If he leaves now, his seat will probably be filled relatively quickly, and whatever confirmation battle ensues won’t get caught up in the politics of next year’s midterm congressional election.
On the other hand, maybe Rehnquist cares less about smooth succession than the administration does. Maybe he’s more loyal to the court than to his party. And maybe, just maybe, he’s a tad reluctant to put his succession in the hands of a president who says Scalia and Thomas are his model Supreme Court justices. But that would really be a descent into liberal fantasy.
* Correction, June 23, 2005: The original article stated that the FMLA, upheld by the Supreme Court, entitles state workers, along with private employees, to 12 weeks of paid leave to take care of a newborn or adopted baby, or a sick relative. It should have said unpaid leave. Click here to return to the corrected sentence.
