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Justice Rehnquist participated in 4353 cases.
Joined with Majority3351
Dissented756
Concurred89
Concurring in Judgment129
Did Not Participate97
Judgment of the Court17
Jurisdictional Dissent11

Rehnquist, William Hubbs

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Birth: October 1, 1924, Milwaukee, Wisconsin.

Education: Stanford University, B.A., 1948, M.A., 1948; Harvard University, M.A., 1950; Stanford University Law School, LL.B., 1952.

Official Positions: Law clerk to Supreme Court justice Robert H. Jackson, 1952–1953; assistant U.S. attorney general, Office of Legal Counsel, 1969–1971.

Supreme Court Service: Nominated associate justice by President Richard Nixon, October 22, 1971, to replace John M. Harlan, who had retired; confirmed by the Senate, December 10, 1971, by a 68–26 vote; took judicial oath January 7, 1972; nominated chief justice by President Ronald Reagan, June 20, 1986, to replace Warren E. Burger, who had retired; confirmed by the Senate, September 17, 1986, by a 65–33 vote; took judicial oath September 26, 1986; replaced as associate justice by Antonin Scalia; served until September 3, 2005; replaced by John G. Roberts Jr., nominated by President George W. Bush.

Death: September 3, 2005, Arlington, Virginia.


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William Hubbs Rehnquist
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William Hubbs Rehnquist

William Rehnquist grew up in Milwaukee and was educated at Stanford University, Harvard University, and Stanford Law School. After graduation, he served as a law clerk to Justice Robert H. Jackson and then entered into private practice in Phoenix, Arizona. In 1969, through his association with Deputy Attorney General Richard Kleindienst and his work as a Republican Party official in Phoenix, Rehnquist came to Washington as assistant attorney general for the Office of Legal Counsel. From this position, he was nominated to the Supreme Court where, in 1972, he was sworn in along with Lewis F. Powell. When he was sworn in as chief justice of the United States in 1986, he became only the third sitting justice to be so elevated.

Despite widespread disagreement with Rehnquist's views among many legal academics, few dispute that he was among the ablest and most learned justices ever to serve on the Court. With Powell's replacement of Hugo Black, the Republicans gained control of the Court for the first time since the New Deal, and they did not relinquish it during Rehnquist's tenure. Although Rehnquist was not able to achieve his most ambitious goals, such as overruling Roe v. Wade (1973) and Miranda v. Arizona (1966), he remained a highly influential member of the majority party throughout his tenure. He thus avoided the fate of Justices William Brennan and Thurgood Marshall, who, with their party in the minority, languished in dissent during their last years on the Court.

Justice Rehnquist's vision of the nation's constitutional structure was firmly rooted in the words and history of that document. He based it on three doctrines: strict construction of the Constitution and statutes, judicial restraint, and federalism or states' rights. He summarized this vision in a 1976 speech at the University of Texas:

It is almost impossible …. to conclude that the [Founding Fathers] 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 author-ity 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.

In other words, as he said in his dissent in Trimble v. Gordon (1977), neither the original Constitution nor the Civil War amendments made “this Court (or the federal courts generally) into a council of revision, and they did not confer on this Court any authority to nullify state laws which were merely felt to be inimical to the Court's notion of the public interest.”

During his early years on the Court, despite the Republican majority, Rehnquist was often in lone dissent, espousing a view of states' rights and limited federal judicial power that many regarded as anachronistic. For example, in Weber v. Aetna Casualty and Surety Co. (1972), Sugarman v. Dougall (1973), and Frontiero v. Richardson (1973), 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, respectively. Rather, he insisted that the Fourteenth Amendment was limited in its application solely to racial discrimination. In the criminal procedure area, he urged that Mapp v. Ohio (1961), which applied the exclusionary rule to the states, be overruled, but although he was clearly hostile to Miranda, he never directly argued that it should be overruled.

Still, even in his first years, Rehnquist was less likely to be in dissent than the liberal bloc of Brennan, Marshall, and William O. Douglas. Moreover, some of Rehnquist's early dissents, such as in Memorial Hospital v. Maricopa Co. (1974), Cleveland Board of Education v. La Fleur (1974), and Fry v. United States (1975), were to form the basis for majority opinions in the years to come. As Prof. Laurence Tribe of Harvard observed, “Even in lone dissent, he has helped define a new range of what is possible.”

The 1975 term saw Rehnquist come into his own as the leader of the ever-shifting conservative wing of the Court. In that term he wrote the opinion in Paul v. Davis (1976), holding that reputation, standing alone, was not a constitutionally protected interest subject to vindication under Section 1983 of the Civil Rights Act of 1871, which allows an injured party to sue a government official. He also wrote for the 5–4 majority in National League of Cities v. Usery (1976), ruling that the Tenth Amendment limited Congress's power to regulate the states under the commerce clause; and for the 5–3 majority in Rizzo v. Goode (1976), holding that “principles of federalism” forbade federal courts from ordering a restructuring of state agencies in response to Section 1983 violations.

National League of Cities used an expansive reading of the Tenth Amendment to strike down a federal statute that regulated the wages and hours of state government employees, despite the fact that such regulation was concededly within Congress's commerce power. It showed that, when faced with a choice between judicial restraint/strict constructionism and states' rights, Rehnquist was prepared to aggressively defend the latter. The potential significance of this case was eroded by subsequent Court majorities, which first refused to follow and then overruled National League of Cities in Garcia v. San Antonio Metropolitan Transit Authority (1985).

Nevertheless, the Tenth Amendment continued to exert some limitation on Congress, as illustrated by Gregory v. Ashcroft (1991), holding that a federal statute will not be interpreted to restrict the autonomy of state and local governments unless Congress has plainly stated its intent to do so. Going further, in New York v. United States (1992), the majority held that the Tenth Amendment prohibited Congress from requiring a state to regulate private sector commercial activity in a case involving the disposal of radioactive waste. And, in Printz v. United States (1997), the Court invalidated that portion of the Brady Handgun Violence Prevention Act that required local police departments to do background checks on potential handgun buyers.

In 1995 and again in 2000, Rehnquist was able to strike further blows in favor of states' rights in United States v. Lopez (1995) and United States v. Morrison (2000), this time by limiting Congress's power under the commerce clause. In Lopez, the Court, for the first time since the 1930s, struck down an act of Congress for going beyond the commerce power. The Court, per Rehnquist, held that the Gun-Free School Zones Act, which prohibited, among other things, the possession of a gun within a certain distance of a school, exceeded Congress's power because such possession did not “substantially affect” interstate commerce. In Morrison, the Court, again with Rehnquist writing, held the same for the Violence Against Women Act, despite congressional findings that such violence did have a substantial impact on commerce.

At the time, it was widely believed that these two cases were the first shots in a “federalism revolution,” in which a major devolution of power from the federal government to the states was under way. This belief was tempered, however, by the Court's failure to strike down any additional acts of Congress on commerce clause grounds in the ensuing five years. Then, in Gonzales v. Raich (2005), a majority held that Congress had the power to prohibit possession of marijuana for medical purposes, despite a state statute allowing such possession. The majority did this despite the lack of any obvious connection with interstate commerce, much less a “substantial effect.” Rehnquist joined Justice Sandra Day O'Connor in dissent, but it seemed that the federalism revolution had, at least for the time being, ground to a halt. Nevertheless, Lopez and Morrison stand as reminders to Congress that its commerce power is not unlimited, and it is likely that the doctrine established in those cases will be used again.

Rehnquist was more receptive to congressional assertions of power under the spending power. In South Dakota v. Dole (1987), Rehnquist, writing for the Court, upheld a condition on federal highway funds that required the states to prohibit the purchase of alcohol by anyone under the age of twenty-one. Similarly, in New York v. United States, Rehnquist joined the Court in upholding that portion of the radioactive waste statute that rewarded states for adhering to federal rules.

When dissenting, Rehnquist made his most telling points opposing the majority's efforts to enact “desirable” social policy with little support from the constitutional or statutory provisions they purport to be interpreting. An example is United Steelworkers of America v. Weber (1979). In that case, Kaiser Aluminum Company and the United Steelworkers had devised a “voluntary” affirmative action plan under which half of available positions in an on-the-job training plan would be reserved for blacks. Excluded solely because he was white, Brian F. Weber filed suit based on Title VII of the Civil Rights Act of 1964. The statute 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 be interpreted “to require any employer …. to grant preferential treatment to any individual or to any group because of the race …. of such individual or group.” Moreover, as a unanimous Court had recognized only three years before in McDonald v. Santa Fe Trail Transportation Co. (1976), the “uncontradicted legislative history” showed that Title VII “prohibited racial discrimination against the white petitioners …. upon the same standards as would be applicable were they Negroes.” Nevertheless, a 5–2 majority in Weber reversed the lower courts and found that discrimination against whites was not within the “spirit” of Title VII and consequently was not prohibited. In a bitter dissent, Rehnquist accused the majority of Orwellian “newspeak” and 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.”

Similarly, in Roe v. Wade, in which the majority based a woman's right to an abortion on a constitutional “right to privacy” that arose not from the terms but from the “penumbras” of the Bill of Rights, Rehnquist 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.” Whatever the wisdom of the policies announced in these cases, it is difficult to disagree that Rehnquist's reading of the textual material in question was the more accurate one; that is, even if the drafters of the Bill of Rights or of the Fourteenth Amendment had agreed that there was a right to privacy that exceeded the precise terms of the Bill of Rights, they surely would not have agreed that it included a constitutional right to an abortion.

It is ironic that Rehnquist, often condemned as a right-wing ideologue, was, in Weber and Roe, as in many other cases, advocating a view of the Court's role that had previously been vigorously advanced by the progressive members of the Court. In Morehead v. New York ex reI. Tipaldo (1936), for example, the dissenting opinion of Justice Harlan F. Stone, joined by Justices Louis Brandeis and Benjamin Cardozo, declared:

It is not for the Court to resolve doubts whether the remedy by regulation is as efficacious as many believe, or better than some other, or is better even than blind operation of uncontrolled economic forces. The legislature must be free to choose unless government is rendered impotent. The Fourteenth Amendment has no more imbedded in the Constitution our preference for some particular set of economic beliefs, than it has adopted in the name of liberty the system of theology which we happen to approve.

If Rehnquist was not altogether successful in exempting states from congressional control, he often prevailed in his efforts to exempt state courts from federal court interference. To do this, he took the 1971 decision in Younger v. Harris, which counseled restraint by federal courts in enjoining ongoing state criminal proceedings, and extended it. In Rizzo v. Goode (1976) and Fair Assessment in Real Estate Assn., Inc. v. McNary (1981), he held that “principles of federalism” limited a federal court's ability to enjoin not just the judicial branch, but also the executive branch of state governments, and that this comity limitation was not confined to criminal proceedings. Nor, as he held in Doran v. Salem Inn, Inc. (1975), was it necessary that a state criminal proceeding predate a federal action for the federal action to be barred by principles of comity.

Another area in which Rehnquist enjoyed considerable success was in state action. The Constitution limits only action by government, not private individuals. Prior to 1972, however, the Court had taken a very broad view of who was a state actor and therefore subject to lawsuits alleging violations of the Constitution. In a series of cases beginning with Moose Lodge No. 107 v. Irvin (1972), Rehnquist wrote majority opinions finding that a variety of defendants, including private clubs with state liquor licenses, public utilities, and state-regulated nursing homes, generally were not state actors and could not be subject to lawsuits based on enforcement of constitutional rights. One common criticism of Rehnquist is that, in striking down acts of Congress under the commerce clause, for example, he stood for “judicial supremacy.” His state action decisions, limiting the authority of the courts to interfere with the actions of private citizens and businesses, are inconsistent with this critique.

In criminal procedure, his views were driven by the same narrow view of the role of courts in a federal system, and he frankly admitted that his goal when he came on the Court was to “call a halt to a number of the sweeping rulings of the Warren Court in this area.” In this he generally was joined by the other Nixon appointees and by Justice Byron White. Consequently, during the 1970s and 1980s the Court issued a series of opinions aimed at making it easier for the police to investigate crime and harder for defendants to upset their convictions because of police investigatory errors. For example, in Rakas v. Illinois (1978), the Court, speaking through Rehnquist, made it more difficult for a defendant to establish standing to litigate search and seizure violations, and in United States v. Robinson (1973), the scope of police searches incident to arrest was expanded. In United States v. Leon (1984), Rehnquist joined White's decision establishing a “reasonable good faith” exception to the exclusionary rule in search warrant cases. Rehnquist did not seek to overrule the fundamental rights to trial by jury, counsel, and appeal that had been applied to the states by the Warren Court, even though he consistently voted to limit them. Despite the feeling of most Court watchers that the Burger Court had not dismantled the major criminal procedure protections of the Warren Court, including the Miranda requirements and the application of the exclusionary rule to the states in Mapp v. Ohio, in a 1985 interview, Rehnquist pronounced himself satisfied that the law was “more evenhanded now than when I came on the Court.”

In 2000 Rehnquist surprised many by writing the opinion for the 7–2 majority in Dickerson v. United States, upholding Miranda v. Arizona against a 1968 congressional statute that purported to overrule it. This decision, however, said more about respect for precedent and resistance to congressional attempts to trench on the Court's constitutional turf than it did about Rehnquist's sudden agreement with Miranda. Indeed, Rehnquist showed his thinking four years later when he joined Justice Clarence Thomas in United States v. Patane (2004), holding that the physical “fruits” of a Miranda violation could be used against a defendant. But he dissented in Missouri v. Seibert (2004), in which the majority held that a second confession, obtained after the police deliberately violated Miranda in getting the first confession, must be excluded as a “fruit” of the original Miranda violation.

Dickerson also provides a good example of the power, albeit limited, of the chief justice over the rest of the Court. When the chief is in the majority after a case is discussed in conference, he assigns the majority opinion. If the chief is in dissent, the senior justice in the majority assigns the opinion. Had Rehnquist dissented in Dickerson, the result would have been 6–3, instead of 7–2, in favor of upholding Miranda. Justice John Paul Stevens, a long-time defender of Miranda, would have been the senior justice in the majority and likely would have assigned the opinion to himself. Stevens would have written a very broad opinion reaffirming the constitutional validity of Miranda, making it difficult to allow the fruits of Miranda violations to be admitted in future cases. By voting with the majority and assigning the opinion to himself, Rehnquist could write a narrow opinion that reaffirmed the bare Miranda holding while preserving the qualifications that the Court had established over the previous thirty-five years. In particular, Dickerson reaffirmed Oregon v. Elstad (1985), a decision from which Stevens had vociferously dissented. Elstad held that a nondeliberate violation of Miranda did not require suppression of a subsequent, warned, confession. Elstad provided the basis for Patane's subsequent undercutting of Miranda.

In the area of federal habeas corpus for state prisoners, Rehnquist and his conservative colleagues advanced the dual goals of limiting federal court interference with state court adjudications and enhancing the finality of criminal convictions. The most significant holding in this line of cases is Wainwright v. Sykes (1977). Rehnquist, writing for a six-justice majority, held that failure to raise an issue at the appropriate stage of a state criminal proceeding barred the federal courts from considering that issue on habeas corpus, absent a showing of good cause for the failure and prejudice to his case by the defendant. Sykes overruled Fay v. Noia (1963), which had allowed new issues to be raised on federal habeas unless they had been deliberately bypassed by the defendant in state proceedings.

Sykes represents a significant diminution of the power of federal courts to interfere with state convictions. Sykes was reaffirmed in 1989 in Teague v. Lane, in which O'Connor, writing for the Court, held that “new” rules of criminal procedure generally should not apply retroactively on habeas corpus to defendants whose state convictions became final before the new law was established.

Then, in Brecht v. Abrahamson (1993), a 5–4 majority held, per Rehnquist, that for a prisoner to have his conviction reversed by a federal court on a writ of habeas corpus, as opposed to direct appeal, the burden is on the prisoner to show not only that there were constitutional errors at his trial, but also that those errors had a “substantial and injurious effect or influence in determining the jury's verdict.” As White noted in dissent, the practical impact of this holding in most cases of “trial error” is that “a state court determination that a constitutional error …. is harmless beyond a reasonable doubt has in effect become unreviewable by lower federal courts by way of habeas corpus.”

Consistent with his federalism/judicial restraint stance, Rehnquist was the Court's leading advocate of a narrow interpretation of the restrictions imposed on states by the establishment clause of the First Amendment: “Congress shall make no law respecting an establishment of religion.” He set forth his view in detail in a dissenting opinion in Wallace v. Jaffree (1985), in which the majority struck down Alabama's statutorily required “moment of silence” for “meditation or voluntary prayer” in public schools. Rehnquist rejected the “wall of separation between church and state” principle of Everson v. Board of Education (1947) that had been the Court's touchstone for forty years. Claiming that history did not support this rigid interpretation of the First Amendment, Rehnquist argued that the view of James Madison, the “architect of the Bill of Rights,” as to the function of the establishment clause was simply “to prohibit the establishment of a national religion, and perhaps to prevent discrimination among sects.” He did not see it as requiring neutrality on the part of the government “between religion and irreligion.” Consequently, Rehnquist would have found no defect in a state statute that openly endorsed prayer, much less a “moment of silence.”

Rehnquist's rejection of the “wall of separation” generally left him in dissent in the religion cases, with the exception of cases involving aid going directly to students. In Zelman v. Simmons-Harris (2002), a majority, per Rehnquist, agreed that vouchers to pay for private school tuition, granted directly to parents, and used for secular as well as religious schools, did not run afoul of the establishment clause, even though most of the vouchers went to religious schools. Similarly, in Zobrest v. Catalina Foothills School District (1993), Rehnquist spoke for a 5–4 majority in holding that the establishment clause did not prohibit a deaf student in a Catholic school from receiving the assistance of a state-funded sign language interpreter—just as a public school student would—even though that aide would be interpreting religious instruction and services for the student. As the dissent noted, this was the first time the Court had authorized “a public employee to participate directly in religious indoctrination.”

In a similar vein, in First National Bank v. Bellotti (1978), Rehnquist, in sole dissent, refused to recognize a First Amendment free speech right for corporations, and in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), he refused to recognize a First Amendment right for consumers to receive commercial information, even though he eventually gave up and agreed to First Amendment protection for commercial speech. Nevertheless, in the First Amendment area, as in all others, he generally gave the legislative branch, whether state or federal, greater freedom to plot its own course than his colleagues did.

Notre Dame law professor Richard Garnett has explained Rehnquist's narrow view of First Amendment protections in terms that apply to his attitude toward the scope of constitutional rights in general:

Rehnquist's work does not reflect skepticism or hostility toward the core values protected by the free speech clause, as some have charged, but instead reveals a careful appreciation of the fact that the translation and reduction of so many policy questions to free speech problems comes at a cost. After all, as the civic, social, and political territory covered by the free speech clause grows, the amount shrinks that is governed democratically and experimentally by the people and their representatives or that is left under the direction of private persons, groups, and institutions. One implication of the free speech takeover, Rehnquist seems to be warning us, is that difficult policy and other decisions depend increasingly on judges' evaluation of the abstract weight or worthiness of the government's interests, rather than on deliberation, compromise, and trial-and-error by and among citizens and politically accountable public officials.

When Chief Justice Warren Burger announced his retirement in June 1986, President Ronald Reagan nominated Rehnquist as his replacement and set off a firestorm of protest among liberals. Sen. Edward Kennedy, D-Mass., 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 contacts with 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 a racially restrictive covenant in the deed to his Phoenix house. The Senate correctly 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 raised as to Rehnquist's fourteen and a half years as an associate justice on the Supreme Court. In the end, after much sound and fury, he was confirmed, 65–33. If the 1975 term had seen Rehnquist “arrive” as a major force on the Court, it was the 1987 term, his second year in the center chair, that saw him mature as chief justice. In a speech given in 1976, he 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 and if that meant he had to put in disconnected thoughts or sentences, in they went.

Following his own 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 administrative abilities in the 1987 term won the praise of his colleague 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. During that term, Rehnquist showed that he could be flexible, joining with the more liberal justices to subject the dismissal of a homosexual Central Intelligence Agency employee to judicial review and to support the First Amendment claims of Hustler magazine to direct off-color ridicule at a public figure.

Most significant, in Morrison v. Olson (1988) he wrote for a 7–1 majority upholding the special prosecutor legislation against a challenge by the Reagan administration. In a decision termed an “exercise in folly” by the lone dissenter, Antonin Scalia, Rehnquist held that the appointments clause was not violated by Congress's vesting the power to appoint a special prosecutor in a Special Division consisting of three U.S. court of appeals judges. Nor did the act violate separation of powers principles by impermissibly interfering with the functions of the executive branch. Although the act may have theoretical flaws, Rehnquist was correct in perceiving that a truly indepen-dent prosecutor was a necessary check on the many abuses of executive power, including criminal violations, that were occurring during the latter years of the Reagan administration. In upholding a check on those abuses, Rehnquist's opinion gained the concurrence of a substantial majority of his colleagues. His performance that term led the New York Times, which had opposed his elevation to chief justice, to praise him with faint damnation: “While he is certainly no liberal, or even a moderate, his positions are not always responsive to the tides of fashionable opinion among his fellow political conservatives.”

Although the 1987 term showed that Rehnquist could be flexible as chief justice, that term and those that followed also showed him, in most instances, leading the Court (to the extent that any justice can be said to “lead” the Court) in a conservative direction. For example, in a series of close cases decided in the 1987 term ranging across the landscape of the Bill of Rights, the Court denied an equal protection challenge to user fees for school busing, denied a claim by Indians that a Forest Service logging road through a national forest would interfere with their free exercise of religion, denied food stamps to striking workers, allowed censorship of a school newspaper, upheld federal tort immunity for defense contractors, and allowed illegally discovered evidence to be used against a criminal defendant under the “independent source” exception to the exclusionary rule.

The following term showed that Rehnquist was still prepared to be flexible. For example, in City of Canton v. Harris (1989), he joined an opinion by White holding that a city could be liable for damages under Section 1983 of the Civil Rights Act for poor training of police officers and that a new trial was not barred. Rehnquist chose not to join O'Connor, Kennedy, and Scalia, who, in a concurring and dissenting opinion, would have dismissed the plaintiff's case because she could not have met the “deliberate indifference” standard of proof. Such flexibility was rarely called for, however, as the conservatives prevailed most of the time.

In the leading case of the term, Webster v. Reproductive Health Services (1989), Rehnquist, consistent with his views of states' rights and strict construction of the federal Bill of Rights, joined by four others, upheld a Missouri statute that forbade public funding and the use of public hospitals for abortions. Rehnquist observed that “our cases have recognized that the due process clauses generally confer no affirmative right to government aid, even where such aid may be necessary to some life, liberty or property interests of which the government itself may not deprive the individual.” Because a state is under no constitutional obligation to provide public hospitals at all, it is free to condition their use as it wishes. This notion, that beneficiaries of public largess must accept the “bitter [restrictions] with the sweet” was a hallmark of Rehnquist's jurisprudence since he first expressed it in Arnett v. Kennedy in 1974. He was, however, unable to convince O'Connor that it was time to abandon the “rigid” framework of Roe v. Wade, which gave a woman an absolute right to an abortion during the first trimester of pregnancy, despite his drafting of a compromise opinion that continued to recognize a limited constitutional right to abortion.

Subsequently, in Planned Parenthood v. Casey (1992), the Court did abandon the rigid trimester framework of Roe in favor of a test that considered whether or not a given regulation placed an “undue burden” on a woman's constitutional right to an abortion. This reaffirmation of the constitutional right to an abortion of a nonviable fetus left the chief justice largely in dissent, returning to the position that Roe should be overruled outright.

Rehnquist was not successful in getting a majority of the Court to overrule Roe, but substantial inroads have been made into that holding. Casey, in which the Court reaffirmed the state's power to prohibit abortions of viable fetuses, is a good example. In Casey, the Court upheld a twenty-four-hour waiting period and an “informed consent” restriction on abortions as well as a parental consent limitation on abortions for minors. The only provision struck down as unduly burdensome was a spousal notification requirement. This relatively tolerant attitude toward many state regulations, as well as the Court's position, stated by Rehnquist in Rust v. Sullivan (1991), which upheld the right of government to place restrictions on, or withhold, public funding for abortions, is a far cry from the broad right apparently conferred by Roe, as Blackmun's dissenting opinions consistently emphasized.

An interesting feature of Rehnquist's tenure as chief justice was the decline in overall activity of the Court. From the 1980 to the 1988 terms, the Court never decided fewer than 159 cases by written opinion, with the number ranging as high as 216 in the 1981 term. In the 1989 term, this number dropped to 151, and in the 1990 term to 129. By the 1999 term it had dropped to 81, and it was at 83 in the 2004 term. The downward movement took place even though the Court's docket steadily increased during this period, from 4,280 cases disposed of in the 1980 term, to 5,825 in the 1991 term, to more than 7,000 by 2004.

This trend cannot be attributed to any action or inclination by the chief justice alone; any time four justices vote to hear a case, certiorari will be granted, whatever the view of the chief. Nor can the trend be fully explained by the overwhelming Republican dominance of the Court (no more than two Demo-crats on the Court since 1990), because such a partisan Court might be eager to undo the work of prior Courts, and the Republicans have held this majority since 1972.

Because Republicans, at least in theory, generally take a dim view of government activism, it does seem likely that the predominantly moderate Republican appointees would be less likely to want to assert their will on the rest of the country, even if it took the form of reversing liberal trends. As the joint opinion of Justices O'Connor, Souter, and Kennedy in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) made clear, an allegiance to the principle of stare decisis is part of the conservative credo, even if a justice may disagree with an earlier case.

Another possible reason for a diminution of the Court's activity could be that Supreme Court action depends of the composition of the lower courts. This supposition is supported by the fact that only about 20 percent of all cases in which certiorari was granted from 1980 to 1992 were affirmed by the Court. Because the purpose of a certiorari grant is overwhelmingly to vacate or reverse a lower court decision, it follows that general agreement with the lower courts should lead the Supreme Court to grant fewer writs of certiorari. With Republicans dominating the lower federal benches for the last twenty or so years, it is perhaps not surprising that the Supreme Court has found less with which to disagree.

Rehnquist's level of activity declined even more than that of the Court itself. In the 1980 through 1982 terms Rehnquist averaged forty opinions (including dissents and concurrences) per term. By contrast, in the 1989 through 1992 terms he averaged twenty-one opinions annually and wrote only fourteen in the 2003 term. He continued to write his share of majority opinions, but the dissents and concurrences diminished; for example, in the 1979 term he wrote twenty-six dissenting opinions compared to four in the 1990 term and three in 2003. Thus he was much less likely to disagree with the majority than he was at the beginning of his tenure. He cast a dissenting vote in nineteen cases in the 1990 term compared to forty-nine in 1981, and compared to forty-two for Stevens in the 1990 term. Also, the marked diminution in his dissenting votes after he became chief justice may reflect his view, noted earlier, that the chief should attempt to exercise a moderating influence and dissent as infrequently as conscience will allow. Indeed, the number of Rehnquist's dissenting votes dropped off sharply after he became chief. Finally, it is likely that, after twenty years on the Court, he may have felt less need to express his individual views on particular cases, especially as he was also tasked with the additional duties the chief justice performs.

Although Rehnquist's judicial philosophy undoubtedly sprang from a staunch political conservatism, the principles of federalism and strict construction frequently prevailed, even when they led to a “liberal” result. For example, in Pruneyard Shopping Center v. Robins (1980), he wrote the opinion upholding state constitutional provisions that allowed political demonstrators to solicit signatures for a submission to the United Nations in a shopping center. He recognized “the authority of the state to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.” Similarly, in Hughes v. Oklahoma (1979), he dissented when the Court invalidated a state's attempt to preserve its wildlife. And in Pennell v. City of San Jose (1988), he upheld the city's rent-control ordinance in the face of a due process challenge by landlords. In numerous criminal cases, such as United States v. Maze (1974) and Ball v. United States (1985), he voted to reverse criminal convictions on the ground that the government had failed to prove that the defendant's conduct had violated the terms of the (strictly construed) statute.

Despite an overall highly successful effort by Rehnquist to move the Court toward strict construction, judicial restraint, and states' rights, he did not prevail in a variety of important areas. As noted, his views as to the First Amendment's protection of commercial speech and the establishment clause did not generally win out. He could not overrule Roe v. Wade, although he succeeded in narrowing it considerably. Likewise, he was unsuccessful in overturning the two landmarks of the criminal procedure revolution, Mapp v. Ohio and Miranda v. Arizona. His strong states' rights views were rejected in Gonzales v. Raich (2005). He failed to strike down the use of affirmative action in a law school's admissions program in Grutter v. Bollinger (2004). And he could not resist the Court's invalidation of homosexual sodomy prohibitions in Lawrence v. Texas (2003). Still, you “can't win'em all,” and Rehnquist won more than he could have reasonably anticipated when he joined the Court in 1972.

Despite the national debate on abortion, it is unlikely that the country ever will be confronted with a constitutional problem of the magnitude of the legal discrimination against blacks, and the closely related problem of police abuse of the rights of criminal suspects, that faced the Warren Court. Consequently, it is also unlikely that the judicial activism displayed by the Warren Court to deal with these problems will be morally necessary or politically desirable in the future. Rehnquist's view of a more limited role for the federal Constitution—and therefore for the federal courts—in the politics of the nation may well be the wave of the future. Having reached its highest point in the 1960s, the rights revolution—already dying during the Burger Court years—terminated with the appointment of William Rehnquist as chief justice of the United States. It will not recur unless the Court swings further than it has in the opposite direction.

Rehnquist died on September 3, 2005, after suffering from thyroid cancer for an extended period. Despite his illness, his death was unexpected. The preceding July he had issued a press release indicating that he had no plans to retire and would resume his duties as chief justice in the fall. John G. Roberts, who had once clerked for Rehnquist, succeeded him as chief justice at the opening of the October 2005 term.

Bibliography

Rehnquist's views on the Court, the Constitution, and the role of the chief justice can be found in his book, The Supreme Court (2d ed., 2001); and in two articles, “Chief Justices I Never Knew,” Hastings Constitutional Law Quarterly 3 (1976): 637; and “The Notion of a Living Constitution,” Texas Law Review 54 (1976): 693.

Books that look at the broad spectrum of Rehnquist's career and jurisprudence are Craig M. Bradley, ed., The Rehnquist Legacy (2006); Peter Irons, Brennan vs. Rehnquist: The Battle for the Constitution (1994); and Sue Davis, Justice Rehnquist and the Constitution (1989).

Books analyzing the Rehnquist Court, rather than Rehnquist himself, include: Mark V. Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law (2005); Earl Maltz, ed., Rehnquist Justice: Understanding the Court's Dynamic; Herman Schwartz, ed., The Rehnquist Court: Judicial Activism on the Right (2002); and David G. Savage, Turning Right: The Making of the Rehnquist Supreme Court (1992). See also Symposium: “The Rehnquist Court,” Northwestern University Law Review 99 (Fall 2004): 1–381.

Noteworthy Opinions

Moose Lodge No. 107 v. Irvin, 407 U.S. 163 (1972)

Frontiero v. Richardson, 411 U.S. 677 (1973) (Dissent)

Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974) (Dissent)

Rizzo v. Goode, 423 U.S. 362 (1976)

Paul v. Davis, 424 U.S. 693 (1976)

National League of Cities v. Usery, 426 U.S. 833 (1976)

Trimble v. Gordon, 430 U.S. 762 (1977) (Dissent)

Wainwright v. Sykes, 433 U.S. 72 (1977)

First National Bank v. Bellotti, 435 U.S. 765 (1978)

United Steelworkers of America v. Weber, 443 U.S. 193 (1979) (Dissent)

Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

Wallace v. Jaffree, 472 U.S. 38 (1985) (Dissent)

South Dakota v. Dole, 483 U.S. 203 (1987)

Morrison v. Olson, 487 U.S. 654 (1988)

Rust v. Sullivan, 500 U.S. 173 (1991)

Brecht v. Abrahamson, 507 U.S. 619 (1993)

United States v. Lopez, 514 U.S. 549 (1995)

United States v. Morrison, 529 U.S. 598 (2000)

Dickerson v. United States, 530 U.S. 428 (2000)

Zelman v. Simmons-Harris, 536 U.S. 639 (2002)

 

Document Citation
Rehnquist, William Hubbs, in Biographical Encyclopedia of the Supreme Court 418 (Melvin I. Urofsky ed., 2006), http://library.cqpress.com/scc/bioenc-427-18169-979477.
Document ID: bioenc-427-18169-979477
Document URL: http://library.cqpress.com/scc/bioenc-427-18169-979477