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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 the
chief justice, citing Charles Evans Hughes as his model because of his strong
belief in unanimity of decision and his willingness to modify his opinions in
order to attract additional votes.
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. |
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