William H. Rehnquist, 1986-2005
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.