Tribute to Chief Justice William H. Rehnquist

By Kyl, Jon | The Yale Law Journal, June 2006 | Go to article overview

Tribute to Chief Justice William H. Rehnquist


Kyl, Jon, The Yale Law Journal


It may be that future legal scholars assessing the judiciary of the late twentieth and early twenty-first centuries will look back and consider one state to have been over-represented on a court that has nine members. I don't consider it anything but a blessing that retired Justice Sandra Day O'Connor of Arizona, and the late Chief Justice William Rehnquist of Arizona, rose to the pinnacle of jurisprudence in this country at the same time. America has been the better for their service on the Supreme Court.

William Hubbs Rehnquist provided steady leadership on the Court through turbulent decades. Appointed to his seat by President Nixon in 1972 and elevated to Chief Justice by President Reagan in 1986, he showed that one man of integrity really can make a difference.

I first met him when he was a lawyer in Phoenix. He spent most of the 1950s and 1960s practicing law in our state, and raising a family there with his wife, Natalie, who passed away in 1991. He made an annual return to Arizona in the last decade of his life, to teach a course on Supreme Court history at the University of Arizona College of Law, my alma mater.

I came of age politically reading Barry Goldwater's 1960 book, The Conscience of a Conservative. William Rehnquist gave voice to that conscience--to a resolve that the liberties that Americans hold dear be protected and preserved--in the speechwriting that he did for Goldwater during the Senator's unsuccessful run for President against Lyndon Johnson in 1964.

While others wanted to remake human nature, the Goldwater conservatives appreciated it, as it is. They were alarmed by the ambitions, the growth, and the power of government since the New Deal. This impulse of vigilance came from a deep respect, which Rehnquist evinced time and again, for our founding charter, the Constitution, and the enumerated powers it granted to government. This was the basic platform on which Barry Goldwater and his emerging wing of the Republican Party, including William Rehnquist and also the man who would elevate him to Chief Justice, Ronald Reagan, constructed a conservatism for our time.

When Rehnquist left his position as Assistant Attorney General of the United States to sit on the Supreme Court, and later be its Chief Justice, he would spend thirty-three years on the Court evaluating cases and the law in a way that generally tried to defer to the other two branches of government--those whose officers are not appointed, as he was, but chosen by the people. He thought judges should always remind themselves to stay within their constitutionally defined role. The reason was that he believed in the right of his countrymen and women to govern themselves through their elected representatives. As Richard W. Garnett of Notre Dame, a former Rehnquist clerk, has said: "'[O]urs is a government of limited powers and ... the judiciary is limited not to restrict freedom but to protect democracy'" (1)

The legal opinions that Rehnquist wrote expressed this freedom-loving and majority-respecting view of the proper relationship of citizens to their government. His dissents, which were firm but even-tempered in tone, earned him the nickname "the Lone Ranger." As we know, the passing years saw him become less and less lonely. Rehnquist's notion of balance between the authority of the governments of the fifty states and the federal government in Washington gradually gained broad acceptance. What were minority views are, in many instances, now the law of the land.

The Rehnquist Court's decisions helped prevent the rights of criminal suspects from being overemphasized to the point that law enforcement was hampered in doing its job. They granted police more power to search and question suspects. They made it harder for defendants to slow the wheels of justice with frivolous appeals. They curbed the government's use of racial quotas, deemed by most Americans to be a squandering of the moral authority of the civil rights movement. …

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