Rehnquist's Unfinished Agenda ; during 19 Years as Chief Justice, He Tugged the Court Right, but It Didn't Move Far

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, September 6, 2005 | Go to article overview

Rehnquist's Unfinished Agenda ; during 19 Years as Chief Justice, He Tugged the Court Right, but It Didn't Move Far


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


The saga of William H. Rehnquist at the US Supreme Court is very much the story of a long-term Republican campaign to conquer an institution that had become a citadel of liberal power in the 1960s.

What is perhaps most remarkable about that campaign is how difficult it has been for the Republicans to win. During Mr. Rehnquist's 19 years as chief justice, the high court exhibited a stingy reluctance to be remade in a conservative mold.

Now, with the passing of the chief justice on Saturday evening, legal historians and constitutional scholars are assessing the Rehnquist legacy. It is an assessment that began months ago amid speculation of Rehnquist's possible retirement.

He is being called a highly effective chief justice, both in terms of his impact on the law and the efficient and congenial way he managed an institution often at the center of America's white- hot culture wars.

Others say his influence was undercut by the dynamics of a splintered court largely controlled, in high-profile cases at least, by two centrist swing voters - Justices Sandra Day O'Connor (who announced her retirement July 1) and Anthony Kennedy.

In the end, the high court never emerged under Chief Justice Rehnquist as a conservative juggernaut. To some relieved liberals and disappointed conservatives, the Rehnquist era might be remembered as "the counterrevolution that wasn't," says Tinsley Yarbrough, a Supreme Court biographer and historian.

But it was not for lack of presidential effort. Since 1969, 10 of the last 12 justices have been appointed by Republican presidents. And while the court's center has shifted to the right, the so- called Rehnquist court nonetheless retained a penchant for producing major liberal landmarks.

Over Rehnquist dissents, the high court upheld abortion, affirmative action, gay rights, online pornography, and flag burning. It struck down capital punishment for juveniles and the mentally retarded, ordered the all-male Virginia Military Institute to accept female cadets, and struck down state regulation of so- called partial-birth abortions.

This is not exactly the wish list that Republican presidents may have had in mind when selecting their Supreme Court nominees. But such liberal victories should not obscure the broader significance of Rehnquist's legacy, analysts say.

Rehnquist joined the court in 1972 and served for many years as a lone dissenter, staking out a conservative jurisprudence that he hoped would one day become the binding law of the land. But even after rising to chief justice in 1986 and watching four fellow Republican nominees join the court, Rehnquist was unable to assemble a majority of justices willing to take the court - and the nation - as far to the right as he wanted to go.

'Changed the conversation'

But that doesn't mean his contribution at the court hasn't been historically significant. "Someone can have a huge effect on shaping our constitutional jurisprudence even if on some of the 'big cases' they are on the losing side," says Richard Garnett, a former Rehnquist law clerk who is now a professor at Notre Dame Law School. "Chief Justice Rehnquist changed the conversation. He brought back to the table certain ideas about limited government, federalism, and texturalism."

At the top of the list of Rehnquist accomplishments, analysts say, is the revival of federalism, the idea that the Constitution requires that federal and state power be properly balanced. "It dramatically changed the direction of constitutional law," says William Marshall, a law professor at the University of North Carolina at Chapel Hill.

In 1995, the high court did something it hadn't done in 60 years - it struck down an act of Congress for exceeding Congress's authority under the Constitution's provision concerning interstate commerce. In declaring the Gun-free School Zone Act unconstitutional, the court said the federal law intruded into an area reserved for state and local governments.

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