On July 1, 2005, Justice Sandra Day O’Connor
announced her intention to retire from the Supreme Court.
"This is to inform you of my decision to retire from
my position as an associate justice of the Supreme Court
of the United States, effective upon the nomination and
confirmation of my successor," O'Connor wrote to
President Bush in a letter. "It has been a great
privilege indeed to have served as a member of the court
for 24 terms. I will leave it with enormous respect for
the integrity of the court and its role under our constitutional
structure."
On September 3, Chief Justice William H. Rehnquist
died at his home in Arlington, Virginia. He was 80.
William H. Rehnquist
1972-1986 Associate Justice, 1986-2005 Chief Justice
WILLIAM HUBBS REHNQUIST was born in Milwaukee, Wisconsin,
October 1, 1924. He grew up in the suburb of Shorewood,
the son of a paper salesman. Rehnquist's strongly conservative
views can be traced directly to his childhood. According
to a Washington Post report, the political heroes
in the Rehnquist household were "Republican standard
bearers such as Alf Landon, Wendell Willkie and Herbert
Hoover." When Rehnquist was asked (during the Democratic
administration of Franklin D. Roosevelt) by his elementary
teacher about his career plans, he replied, "I'm
going to change the government."
He served in the Army Air Corps during World War II as
a weather observer in North Africa. Following the war,
he attended college on the GI Bill, earning both a B.A.
(Phi Beta Kappa) and M.A. in political science at Stanford
University in 1948. Rehnquist received a second M.A.,
in government, from Harvard two years later. He then entered
Stanford Law School, where he graduated first in his class
in 1952. (The student who ranked third was Sandra Day,
who later joined him on the Supreme Court.) Rehnquist
was described by one of his instructors as "the outstanding
student of his law school generation." He also had
the reputation among his classmates as a formidable advocate
of the conservative point of view on political issues.
Rehnquist met Justice Robert Jackson when he came to Stanford
to dedicate the new law school building in the summer
of 1951. An interview for a possible clerkship with him
was arranged by a professor who was a former Jackson clerk.
Despite Rehnquist's feeling, following the interview,
that Jackson "had written me off as a total loss,"
he was offered the highly coveted position. Jackson, a
moderate, does not appear to have had any influence on
Rehnquist's already well-developed political or judicial
philosophies. Indeed, in his book on the Supreme Court,
Rehnquist speaks well of Jackson, but no such influence
is noted. Justice Felix Frankfurter seems to have made
more of an impression; Rehnquist describes Frankfurter
as a "magnetic" personality to whom he was "tremendously
drawn ... by his willingness to discuss and argue while
asking no quarter by reason of his position or eminence."
What Rehnquist considered to be the too-liberal views
of his fellow law clerks certainly made a strong impression
on him, and in 1957 he published an article in U.S.
News and World Report criticizing their "extreme
solicitude for the claims of Communists and other criminal
defendants, expansion of federal power at the expense
of State power, great sympathy toward any government regulation
of business--in short, the political philosophy now espoused
by the Court under Chief Justice [Earl] Warren."
Rehnquist contended that this political bias on the part
of the clerks might have some influence over which cases
the Court chose to decide, but not over the way any justice
voted in a particular case.
In 1953, following his clerkship, he married Natalie ("Nan")
Cornell, whom he had met at Stanford, and the couple had
a son and two daughters. Rehnquist went to work for a
law firm in Phoenix, choosing that city for its climate,
both meteorological and political. He followed advice
that Justice Frankfurter had given him "that conservatives
as well as liberals ought to get active on the political
scene." He became a Republican party official and
an outspoken opponent of liberal legislative initiatives
such as busing to achieve school integration. While campaigning
for Republican presidential candidate Barry Goldwater
in 1964, Rehnquist became friendly with Richard Kleindienst,
another Phoenix attorney. Kleindienst was appointed deputy
attorney general in Richard Nixon's administration and
arranged for Rehnquist to become assistant attorney general
for the Justice Department's Office of Legal Counsel.
One of Rehnquist's principal functions in this job was
to screen, along with Kleindienst and Attorney General
John Mitchell, candidates for potential Supreme Court
positions. When attempts to find a suitable candidate
to replace retiring justice John Marshall Harlan had reached
an impasse, Mitchell informed Rehnquist that they had
settled on someone--Rehnquist himself. Despite his relative
youth (he was forty-seven), inexperience, and political
views that diverged from those of many senators, his nomination
was confirmed, 68-26, December 10, 1971. He joined the
Court on January 7, 1972, the same day as Justice Lewis
F. Powell, Jr.
Rehnquist summarized his vision of the nation's constitutional
structure in a speech at the University of Texas a few
years later:
It is almost impossible ... to conclude that the
[Founders] intended the Constitution itself to suggest
answers to the manifold problems that they knew would
confront succeeding generations. The Constitution that
they drafted was intended to endure indefinitely, but
the reason for this well-founded hope was the general
language by which national authority was granted to Congress
and the Presidency. These two branches were to furnish
the motive power within the federal system, which was
in turn to coexist with the state governments; the elements
of government having a popular constituency were looked
to for the solution of the numerous and varied problems
that the future would bring.
During his early years on the Court, despite the
presence of three other Republican appointees, Rehnquist
was often the only dissenter, espousing a view of states'
rights and limited federal judicial power that many regarded
as outmoded. He resisted the view of the other eight members
of the Court that the Equal Protection Clause of the Fourteenth
Amendment applied to, and required heightened scrutiny
of, state-sponsored discrimination against illegitimate
children, resident aliens, and women. Indeed, he insisted
that the Equal Protection Clause had only marginal application
beyond cases of racial discrimination. In the area of
criminal procedure, Rehnquist urged the Court to overturn
Mapp v. Ohio (1961), which made the rule excluding
illegally seized evidence from admission in a trial applicable
to the states. Rehnquist also seemed hostile to Miranda
v. Arizona (1966), which guaranteed that suspects
in police custody be informed of their rights before interrogation,
although he never directly argued that it should be reversed.
Still, even in his early years on the Court, Rehnquist
was less likely to be in dissent than liberal justices
William O. Douglas, William J. Brennan, Jr., and Thurgood
Marshall. The ideas expressed in some of Rehnquist's early
dissents became influential in later majority opinions.
As Harvard law professor Laurence Tribe observed, "Even
in lone dissent, he has helped define a new range of what
is possible."
When dissenting, Rehnquist made his most telling points
in opposition to the majority's efforts to enact "desirable"
social policy with little support from the constitutional
or statutory provisions they are supposed to be interpreting.
An example is United Steel Workers of America v. Weber
(1979). This case involved an affirmative action plan
devised by the Kaiser Aluminum and Chemical Company and,
the United Steel workers. The "voluntary" plan
reserved for blacks half of available positions in an
on-the-job training program. Brian Weber, excluded solely
because he was white, filed suit based on Title VII of
the Civil Rights Act of 1964, which provides that "it
shall be unlawful for an employer ... to fail or refuse
to hire ... any individual . . . because of such individual's
race." The statute goes on to say that its provisions
are not to be interpreted "to require any employer
... to grant preferential treatment to any individual
or group." Nevertheless, a 5-2 majority reversed
the lower courts, finding that the discrimination against
whites was not against the "spirit" of Title
VII and consequently not prohibited. In a bitter dissent,
Rehnquist concluded that "close examination of what
the Court proffers as the spirit of the Act reveals it
as the spirit of the present majority, not the 88th Congress."
Rehnquist also dissented in Roe v. Wade (1973),
in which the majority based a woman's right to an abortion
on a constitutional right of privacy that arose not from
the terms but from the "penumbras" of the Bill
of Rights. He wrote, "To reach its result, the Court
necessarily has had to find within the scope of the Fourteenth
Amendment a right that was apparently completely unknown
to the drafters of the Amendment."
The 1975 term saw Rehnquist come into his own as the leader
of the ever-shifting conservative wing of the Court. He
wrote several majority opinions that cut back the power
of the federal government vis-à-vis the states.
The most notable of these was National League of Cities
v. Usery, in which Rehnquist used an expansive reading
of the Tenth Amendment to strike down a federal statute
that regulated the wages and hours of state government
employees, although such regulation was within Congress's
commerce power. The opinion showed that if faced with
a choice between judicial restraint and states' rights,
doctrines he generally supported, Rehnquist was prepared
to defend states' rights more aggressively.
When Warren Burger announced his resignation as chief
justice and President Ronald Reagan nominated Rehnquist
as his replacement June 20, 1986, there was a firestorm
of protest among liberals. Sen. Edward Kennedy denounced
Rehnquist as having an "appalling record on race,"
and liberal columnists branded him a right-wing extremist.
A concerted effort was undertaken to find something in
his past that might provide a basis for defeating the
nomination. Assorted allegations were raised concerning
harassment of black voters when he was a Republican party
official in Phoenix, the handling of a family trust, a
memo he had written to Justice Jackson as a law clerk
urging that the "separate but equal" doctrine
not be overruled in Brown v. Board of Education
(1954), and racially restrictive covenants in the deeds
to his Phoenix house and summer home in Vermont. The Senate
perceived that these allegations were either unproven
or, if true, were "ancient history" and irrelevant
to his fitness for the post of chief justice. Significantly,
no serious charge of misconduct was alleged as to Rehnquist's
nearly fifteen years as an associate justice. After much
controversy, he was confirmed September 17 by a 65-33
vote.
If the 1975 term saw Rehnquist become a major force on
the Court, it was the 1987 term, his second year as chief
justice, that saw him mature in that position. In a speech
he gave in 1976 Rehnquist had discussed the role of chief
justice, citing Charles Evans Hughes as his model. "Hughes
believed that unanimity of decision contributed to public
confidence in the Court.... Except in cases involving
matters of high principle he willingly acquiesced in silence
rather than expose his dissenting views.... Hughes was
also willing to modify his own opinions to hold or increase
his majority."
Following that advice, in the 1987 term he achieved a
high level of agreement with his fellow justices, ranging
from 57.6 percent with Thurgood Marshall to 83.1 percent
with Anthony Kennedy. His managerial abilities in the
1987 term won the praise of Justice Harry Blackmun, who
deemed him a "splendid administrator in conference."
For the first time in years, the Court concluded its work
prior to July 1, in part because it had taken on fewer
cases.
During the 1987 term, Rehnquist also showed that he could
be flexible, joining with the more liberal justices to
subject the dismissal of a homosexual CIA agent to judicial
review and to support the freedom of speech claims of
Hustler magazine to direct off-color ridicule
at a public figure. Most significant, in Morrison
v. Olson (1988) Rehnquist wrote the majority opinion
upholding Congress's right to appoint independent counsels
to investigate and prosecute high government officials,
a right that was challenged by the Reagan administration.
Rehnquist was an effective manager whose humor and fairness
contributed to the cordial relations among the justices.
He enjoyed a variety of hobbies, including oil painting,
singing, stamp collecting, theater-going, and poker. Rehnquist,
a widower since 1991, found time to write three popular
books on the Court's history: The Supreme Court: How
It Was, How It Is (1988), Grand Inquests: The
Historic Impeachments of Justice Samuel Chase and President
Andrew Johnson (1992), and Centennial Crisis:
The Disputed Election of 1876. (2004). He was diagnosed
with thyroid cancer in October 2004 and died on September
3, 2005 at age 80.
