"Arrogance Cloaked as Humility" and the Majoritarian First Amendment: The Free Speech Legacy of Chief Justice William H. Rehnquist

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In his nineteen years as chief justice of the United States, William H. Rehnquist voted in favor of the individual expression interest asserted in approximately one-fifth of the Speech Clause cases heard by the Supreme Court. Meanwhile, he opposed protecting those constitutional interests in approximately two-thirds of the speech cases during that time. (His votes evidenced both speech-protective and non-protective elements just more than 10% of the time). This analysis compares Rehnquist's jurisprudence with that of his two immediate predecessors, Chief Justices Warren Burger and Earl Warren. Rehnquist's deference to government, reliance on history, and formalist categorization of cases represented a shift of focus from the First Amendment as protector of minority views to the First Amendment as bastion of majoritarianism.

Supreme Court Chief Justice William H. Rehnquist would hardly be called a champion of the First Amendment. In his nineteen years as chief-from his appointment September 26, 1986, to his death September 3, 2005-Rehnquist voted in favor of the individual or minority expression interest asserted in just 22% of the Speech Clause cases heard by the Court. He opposed protecting those constitutional interests in 67% of the speech cases during that time, and he split his vote 11% of the time (see Figure 1).1 The Rehnquist Court as a whole has been credited with stemming the tide of newly recognized fundamental rights that rose steadily during the generally pro-First Amendment tenures of the two prior chief justices, Earl Warren and Warren E. Burger.2

In Speech Clause cases, Chief Justice Rehnquist personally wrote some nineteen majority opinions or portions thereof, eleven dissenting opinions, one concurring opinion, and one opinion concurring in part and dissenting in part. Close analysis reveals first that he did not uniformly reject speech claims; some of his most speech-favorable language came in cases involving news media. Second, analyzing his opinions also makes clear a counter-intuitive reality that will be an important part of his free speech legacy. Although he only infrequently protected individual or minority expression rights, Rehnquist frequently cast himself as protector of other speech. His opinions often favored the right of the majority or the dominant entity to send a message contrary to that of the minority. Most prominently, he suggested this majoritarian speech right should be afforded to government, but he would also extend it to, among others, large quasi-public associations and even inanimate objects with widespread symbolic significance.

For example, Rehnquist's majoritarian First Amendment would protect the right of the U.S. flag to send a symbolic message of patriotism, but not the right of a match-wielding protester to send a conflicting message.3 For Rehnquist, the government's right not to be associated with certain messages trumped an individual government employee's right to speak his or her mind freely in exchange for a fee.4 In his view, government interest in preventing ballot confusion prevailed over the right of minor political party candidates to appear on the ballot for more than one party.5 Among other examples, Rehnquist would have allowed a majority-backed local government to impose a permit scheme on doorto-door canvassing in order to serve the asserted local majoritarian interests in preventing crime and fraud and protecting privacy.6

Given the length of his tenure on the Court and as chief, Rehnquist stands as a significant figure in the history of the U.S. judiciary. Born in 1924 in Milwaukee, Rehnquist served in the World War II Army Air Corps. He earned bachelor's, master's, and law degrees from Stanford and a master's from Harvard. He clerked for Supreme Court Justice Robert H. Jackson in 1951-52 and practiced law in Arizona for sixteen years. He worked in the Department of Justice for two years before President Richard Nixon appointed him associate justice in 1972 and was elevated to chief justice in 1986 by Ronald Reagan. …