Rehnquist had long court tenure
By ALAN J. BORSUK
The Milwaukee Journal-Sentinel
aborsuk@journalsentinel.com
Posted: Sept. 3, 2005
On Jan. 30, 1952, a 27-year-old law school graduate named William Hubbs Rehnquist left his parents' home in Shorewood in a 1941 Studebaker Champion, heading for Washington, D.C.
He drove through a snowstorm in West Virginia and Maryland along the way, writing later, "It's hard to believe that even in 1941 a heater would have been optional equipment on a car sold in Milwaukee, Wisconsin."
Two days after he left, he found himself standing in awe in front of the majestic building that houses the United States Supreme Court.
"I had only foggiest notion of how the Supreme Court operated," he wrote later.
But, having graduated first in his law school class at Stanford University, he had been picked by Justice Robert Jackson to be one of the justice's law clerks, a $6,400-a-year job that, among other things, quickly began to give Rehnquist an education in the ways of the Supreme Court.
He mastered the subject.
By the time he died Saturday evening at age 80, Rehnquist had become one of the most influential people in American legal history, one of the longest-serving members of the court and the third-longest-serving chief justice.
Rehnquist played a key role in the election of one president, George W. Bush, presided over the impeachment trial of another president, Bill Clinton, and served as the fulcrum in turning the direction of the court and American law from the activist, groundbreaking era of the 1950s through 1970s to the more conservative tone of today.
Rehnquist said in a rare television interview in early 2004 that he didn't think much about his legacy. "I've probably thought about it less than you have getting ready for this interview," he told interviewer Charlie Rose.
But he added that he hoped his legacy was that he headed a smooth-running court where the justices generally got along on a personal level and where his views prevailed much of the time.
Across the political and legal spectrum, few would quarrel with that description.
Walter Dellinger, who was acting solicitor general, the federal government's chief lawyer for matters before the Supreme Court, during the Clinton administration, called Rehnquist "one of the three most important chief justices in history."
Jay Sekulow, who argued 11 cases before the court as chief counsel of the conservative American Center for Law and Justice, said Rehnquist was "an exceptionally great chief justice" whose views significantly affected American thinking and life beyond the court itself.
Many conservatives hoped, and many liberals feared, that when President Reagan named Rehnquist as chief justice in 1986, the court might reverse many of the landmark rulings from the 1960s, when Earl Warren was chief justice, or the 1970s, when the Roe vs. Wade decision legalizing abortion was issued under Chief Justice Warren Burger.
Indeed, he was a consistent vote against affirmative action, against legal abortion, in favor of limiting or voiding court-ordered school desegregation, in favor of permitting a ban on burning the American flag, against halting executions, and in favor of allowing religion in the publicly funded arena.
But in large part, the conservative counter-revolution was muted during Rehnquist's time as head of the court.
Many of the major decisions on subjects such as abortion, the rights of defendants in criminal trials or affirmative action trimmed and altered earlier, more liberal precedents, but the precedents generally stood.
Even as Rehnquist dissented, the court broke new ground in rights of homosexuals. And the court in general upheld earlier, controversial freedom-of-speech decisions when dealing with subjects such as pornography on the Internet.
Rehnquist himself was known to regard it as an accomplishment that the court's record was "balanced" during his time as chief justice - it wasn't as conservative as he would have preferred himself, but it was a lot more so than in previous decades.
The court, he believed, was not like Congress, where the hot issues of the day were turned quickly into bills and debated in the glare of the media. The court was much more private, more stately; it dealt only with cases that made their way to the justices after lengthy legal proceedings at lower levels; it paid strong heed to earlier decisions.
Changing the direction of the court was like changing the direction of a battleship, something done by degrees, Rehnquist came to believe in his later years.
Low-key approach
The reliability of his vote on the conservative side of issues, combined with his low-key, businesslike approach to court operations and debate, seemed to make him a less prominent figure in the court's public image, especially in recent years, than one might have expected.
Justices Antonin Scalia and Clarence Thomas pretty much took over Rehnquist's former role as a strong voice of conservative legal opinion. And Justices Sandra Day O'Connor and Anthony Kennedy, generally moderate conservatives, became the swing votes on many cases decided by 5-4 or 6-3 votes, moderating the court's overall record.
But Erwin Chemerinsky, a court expert and law professor at Duke University, said, "I really think that he (Rehnquist) is somebody who will be regarded in hindsight as having had a tremendous influence on the course of constitutional law."
Rehnquist came to the court with a clearly conservative vision, and "over time, much of that vision has become constitutional law," Chemerinsky said.
Two examples of what Rehnquist stood for and what changed and didn't in his years on the court:
• Rehnquist was one of two justices who voted against the Roe decision in 1973, and he was a reliable vote against abortion throughout his career. But the majority of the court kept abortion legal even as it made abortions less available or more difficult for some women to afford.
• When Rehnquist was an assistant attorney general during the Nixon administration in the late 1960s, he wrote a memo vehemently criticizing the Warren-era ruling known as Miranda, which required that people being questioned by police be informed of their rights to remain silent and to have an attorney.
But when he had the chance several years ago to overturn the Miranda rule, Rehnquist joined the court majority in keeping it. He said it had become a part of accepted legal practice by then and was actually a help overall to law enforcement.
Legal historian Tinsley Yarborough wrote in a book in 2000, "President Reagan envisioned a Rehnquist Court willing to repudiate the Warren era's human rights legacy, as well as Roe v. Wade and other Burger Court decisions expanding the reach of individual liberty. Whether out of personal conviction or considerations of political expediency, George (H.W.) Bush attempted to pursue essentially the same goal. To date, their efforts have achieved only partial success."
In the long run, the Rehnquist court may be remembered more for putting the brakes on earlier landmarks, not throwing the court's philosophy into reverse, even as Rehnquist himself will be remembered as the leader of a wave that brought decidedly conservative thinking into a forceful position within the court.
Joining the court in 1972, Rehnquist initially was known for his dissenting opinions, often issued in 8-1 rulings. In later years, as chief, he appeared to want to avoid that role. Not only did he have Scalia and Thomas as philosophical allies, but, as chief justice, he seemed willing to build bridges with the more moderate justices and to reduce the number of his own dissents.
Boosted states' power
Rehnquist made major inroads on two fronts that did not draw widespread public attention.
He led the court in shifting power away from the federal government and toward the states. The shift included decisions that some actions of Congress were unconstitutional because they were outside the power of the federal government, such as a 1995 case tossing out a federal law banning guns near schools.
And Rehnquist was known in the judicial world, even by critics, as an effective leader of the court itself and of the federal judicial system as a whole. He promoted efficiency and organization, meeting deadlines and keeping meetings short and to the point.
He did not like long debates among the justices when they discussed cases privately, although some chafed at that.
Under Rehnquist, the court also reduced the number of cases it takes each year to about 75, half the number of a few years ago.
Rehnquist's commentary on other jurists told much about his own aims as a justice. In his 1987 book on the history of the Supreme Court - one of four American history books he wrote - Rehnquist described Robert Brooke Taney, who was chief justice from 1836 to 1864:
"Taney had a first-rate legal mind, and was a clear, forceful writer.. . . He was not overly wrapped up in legal learning for its own sake, and realized that constitutional law required vision and common sense as well as a careful legal analysis. His willingness to find in the United States Constitution the necessary authority for states to solve their own problems was a welcome addition to the national constitutional jurisprudence."
Like Taney, Rehnquist was indisputably bright, wrote opinions that were direct and unflowery ("in the law, the power of clear statement is everything," he said, quoting another justice), applied what he considered common sense to legal situations and favored limiting the power of the federal government, including the court.
He wrote in the Supreme Court book, "The justices were not appointed to roam at large in the realm of public policy and strike down laws that offend their own ideas of what is desirable and what is undesirable."
In a 1985 interview with The New York Times, he said, "I don't know that a court should have a sense of mission.. . . I think the sense of mission comes best from the president or the House of Representatives or the Senate.. . . The Supreme Court and the federal judiciary are more the brakes that say, 'you're trying to do this, but you can't do it that way.' "
Critics strongly disagreed with his description of a justice's role, saying he did make policy and impose his philosophy.
In 1980, New York Times columnist Anthony Lewis wrote that Rehnquist was "highly intelligent, legally skilled and gifted with the pen. He is personally charming. And he is an ideologue of the right, the most predictable conservative appointed to the court in 50 years."
In 1999, Lewis wrote that the court had become "a phenomenon that this country has not seen for more than 60 years: a band of radical judicial activists determined to impose on the Constitution their notion of a proper system of government."
And in 2002, Herman Schwartz, a law professor who edited the book "The Rehnquist Court: Judicial Activism on the Right," wrote:
"During the Rehnquist era, the Supreme Court has been hostile to minority aspirations and has cut back on the rights of the accused and the imprisoned; it has opened the doors of the execution chamber and shut the doors of the courthouse; it has chipped away at abortion rights, lowered the barrier between church and state, and undermined the free exercise of minority religions; it has. . . narrowly interpreted federal social legislation by misreading congressional intent, and it has promoted business interests."
On the other side of the spectrum, Chip Mellor, president and general counsel of the libertarian-oriented Institute for Justice, praised Rehnquist for "demonstrating a very thoughtful, evenhanded and principled type of conservatism that has brought the court much further in a constructive conservative direction.
"When history judges, he will be viewed as one of the most important chief justices in American history," Mellor said. "He presided over a court that issued major opinions over his tenure, and yet he managed to build a court that was known for its collegiality among the justices and, for the most part, the tempered nature of its approach to its role in deciding cases."
Sekulow, a prominent voice of conservative legal activism, said he expected that 100 years from now, Rehnquist will be remembered most for presiding over the Bush vs. Gore decision in 2000. But he called Rehnquist "one of the most significant chief justices in U.S. history" both for the way in which he ran the court and for the impact he had in shifting the court's decisions away from the directions taken by the Warren court.
In an article headlined "Rehnquist the Great?" in The Atlantic Monthly magazine in April 2005, Jeffrey Rosen, a George Washington University law professor, said Rehnquist "may be the last of the old-fashioned judicial conservatives who already look far more judicious than the conservatives who have arisen in their wake. And liberals may find themselves missing Rehnquist more than they could ever have imagined.
"With exceptional efficiency and amiability, he led a court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country," Rosen wrote. "His administration of the court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years."
Rehnquist was a lifelong conservative in three ways: his political views; the unchanging nature of his philosophy and views across the decades; and his personal style, which, except for a penchant for somewhat eye-catching clothes, was low-key and genial.
Roots in Wisconsin
Rehnquist's father, William B. Rehnquist, headed the Milwaukee sales office of a medical equipment and supplies firm, Bradney-Smith Co. The family lived in Shorewood, where Rehnquist attended Atwater School and what was then Shorewood Junior-Senior High School.
He was described later by former classmates as a good student ("the most brilliant person I ever met," one said years later) who was well-liked and stayed out of trouble.
One of his few personal brushes with the law came on April 17, 1942, when he was ticketed for parking four feet from a crosswalk for five minutes (from 11:05 to 11:10 p.m.) at E. Hampshire St. and N. Hackett Ave. on the east side. He was sent to Children's Court, where he was "warned about obeying traffic and parking laws," according to records.
He graduated 11th in his Shorewood class of 234 in 1942.
He left Milwaukee for college and never lived here or spent much time here after that, other than to visit his parents.
But he was a lifelong fan of both the Green Bay Packers and Wisconsin Badgers football teams, known for placing small bets on almost every game - except for when he feared either team was going to lose.
And, although he was unsentimental in reminiscing about his Milwaukee years, he was fond of such things as the Silver Spring Drive shopping district in Whitefish Bay, where he would walk with his mother in her later years when she lived nearby.
His father died in 1973 and his mother, Marjorie, in 1988.
Rehnquist returned to Milwaukee for the last time in 2002, to receive Shorewood High School's first Tradition of Excellence Award on the 60th anniversary of his graduation. He remarked later that when he was driven around his old neighborhood, he was struck by how little its appearance had changed in the decades since he left.
Rehnquist's college career was interrupted by World War II; he served in the Army Air Corps from 1943 to 1946.
After the war, he received bachelor's and master's degrees from Stanford University in California, then a master's degree from Harvard, before returning to Stanford for law school. One of his classmates was Sandra Day O'Connor.
Noteworthy memo
While working as a clerk for Justice Jackson in 1952 and 1953, Rehnquist wrote perhaps the most controversial legal opinion of his career - a memo to Jackson on why the Supreme Court's 1896 decision known as Plessy vs. Ferguson, upholding racial segregation under the "separate but equal" philosophy for blacks and whites, was constitutional and ought to remain the law.
Rehnquist later said the memo was written at Jackson's request as part of an effort by the justice to consider different viewpoints as school desegregation cases headed toward the court. Rehnquist said the legal essay did not reflect his own opinion.
Jackson went on to vote in favor of declaring segregation unconstitutional in the landmark Brown vs. Board of Education case in 1954, and the contents of the Rehnquist memo later threatened to cost Rehnquist confirmation both when he was named to be a justice in 1971 and to be chief justice in 1986.
Historian Richard Kluger, who wrote the definitive book on the Brown decision, said that "a preponderance of evidence (suggested the memo). . . was an accurate statement of his (Rehnquist's) own views on segregation, not those of Robert Jackson, who, by contrast, was a staunch libertarian and humanist."
While he was working as a clerk, Rehnquist met Natalie Cornell, a native of San Diego and then an employee of the CIA. They married in 1953 and had a son and two daughters. Natalie Rehnquist died in 1991 of cancer.
In 1953, Rehnquist moved to Phoenix and went into private practice as a lawyer. He became involved in local politics, striking up a close relationship with then-Sen. Barry Goldwater.
After Richard Nixon was elected president in 1968, another Arizona attorney, Richard Kleindienst, was named to a top position in the Justice Department, and he recruited Rehnquist to join him as an assistant attorney general. Rehnquist played a role in selecting nominees for the Supreme Court and helping them win confirmation. Two of the people he was involved with, Clement Haynsworth and G. Harold Carswell, failed to gain confirmation.
In 1971, Nixon had two openings on the court. Several people whom Nixon was considering for the court drew negative reactions from the American Bar Association and the news media.
Rehnquist's name was floated within Nixon's circles by John Dean, the White House counsel who later played a central role in the Watergate scandal and who wrote a book on the Rehnquist selection in 2001.
"Bill Rehnquist makes Barry Goldwater look like a liberal," Dean said he told one of Nixon's aides.
Almost as a last-minute impulse, Nixon decided to nominate Rehnquist to succeed Justice John Marshall Harlan, telling Rehnquist he was in line for the job only the day before it was announced publicly.
Nixon's knowledge of Rehnquist was shaky. Tapes made of Nixon's conversations with aides show that Nixon at one point called him "Renchburg." Nixon misspelled his name in handwritten notes made the day of the nomination. Earlier, following a meeting at the White House, Nixon had asked Dean, "Who the hell is that clown?" referring to Rehnquist, apparently because he had worn a colored shirt and fashionable tie to the meeting.
"Is he Jewish? He looks it," Nixon said. The answer was no, he was Lutheran and active in his church.
Nonetheless, when Nixon announced the nomination in October 1971, he said, "I would rate William Rehnquist as having one of the finest legal minds in the whole country today. He rates at the very top as a constitutional lawyer and legal scholar."
The confirmation hearings for Rehnquist were heated, but the Senate approved the nomination, 68-26, and Rehnquist was sworn in on Jan. 7, 1972, the same day as Justice Lewis Powell.
In 1986, when Burger retired as chief justice, Reagan nominated Rehnquist to the court's top position and named Scalia to succeed Rehnquist. Rehnquist's promotion was confirmed by the Senate, 65-33, getting the largest number of "no" votes of any successful Supreme Court nomination up to that time.
Stickler for details
At the time of the Clinton impeachment trial in 1999, New York Times reporter Linda Greenhouse, an expert on the court, described Rehnquist's courtroom demeanor as "confident, imperturbable, his countenance displaying little reaction to his surroundings, his Midwestern accent a legacy of a childhood in Shorewood that he left behind at age 19 en route to becoming a man of the Southwest."
Reserved and formal on the bench, he was known as a probing questioner of attorneys arguing before the court and a stickler for details. A Washington Post story in 1997 told how a lawyer, in oral arguments, had remarked that a 1954 Ford Mustang was something worth real money. "They didn't make Mustangs until '63," Rehnquist interjected. Actually, he was off by a year: Mustangs debuted in '64.
Off the bench, Rehnquist was often described as being reserved but personally warm, and he put a high value on having good relationships with other justices, even if they disagreed on legal matters.
On the other hand, although the roster of justices was unchanged for more than a decade and the nine justices knew each other well, they reportedly could go days without seeing each other, even in the course of work, perhaps due to the impact of the formal Supreme Court building, the nature of the work and Rehnquist's own reserved and businesslike nature.
Outside the court, Rehnquist was an avid tennis player, a poker and bridge player and an eager sports fan. His hobbies also included meteorology and painting. In later years, he said just spending time with his 11 grandchildren was one of his favorite things to do.
When Rehnquist was nominated to be chief justice, Benno Schmidt Jr., then incoming president of Yale University, said, "Rehnquist has a genius for friendship and a great deal of personal warmth and charm."
And The Wall Street Journal reported that at judicial conferences, he was sometimes known to warm things up by leading the group in singing "I've Been Working on the Railroad" or "Hello, Dolly!"
Court expert Chemerinsky, who described himself as a critic of most of what Rehnquist did, said, "He's had this tremendous impact in changing the Supreme Court. In almost every area of constitutional law, he's left a mark, and the court's functioning very differently than it used to, and I think he's responsible for that."
Peter Irons, author of six books on the court, said, "A hundred years from now, Rehnquist will be looked on as a chief justice who was consistently conservative and was fairly influential on the court in pressing for his point of view."
Don Downs, a University of Wisconsin professor who teaches constitutional law, said Rehnquist's longest-lasting legacy may lie in improvements he made in the operation of the federal judicial system. As for Rehnquist's legal contributions, the court has been so closely split for years that it is unclear whether changes in the future will build on or erase what he wrought, Downs said.
Rehnquist had just turned 47 when Nixon nominated him to the court. Nixon and his aides wanted someone who was relatively young so that the appointment would have lasting impact.
Thirty-three years later - more than three decades after Nixon left the presidency - the appointment of Rehnquist stands as one of the most significant decisions Nixon made.
In his book about the court, Rehnquist described his work style: "Maybe it's just my own way of working, but I've always preferred when possible to go through one thing from beginning to end, do what I have to do with it and move on."
In the unadorned, clear way that Rehnquist liked to operate, that may sum up his career. He was given two jobs, justice and chief justice, that gave him great responsibility and influence. He worked hard at them, made them his life. He stayed at them for many years, until past his 80th birthday, until illness brought the end.
He did what he believed he was supposed to do.
And, as had to be, he moved on.
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