Evaluating the Rehnquist Court's Legacy

By Emrey, Jolly A. | Justice System Journal, January 1, 2007 | Go to article overview
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Evaluating the Rehnquist Court's Legacy


Emrey, Jolly A., Justice System Journal


Special Issue, "Evaluating the Rehnquist Court's Legacy," Judicature 89 (November-December 2005): 104-85.

This special issue of Judicature, organized by Thomas Marshall, covers quite a number of subjects. Among them are examinations of Rehnquist's role as an administrator of the federal judiciary, the Court's frequent use of concurrences, the Court and public opinion, the Court's relationship with federal agencies, and the Court's review of state high-court decisions. Some of the articles provide good basic summaries but do not contribute much that is new. There are, however, a number of the articles that are worthy of particular note.

* Russell R. Wheeler, "Chief Justice Rehnquist as Third Branch Leader," 116-20.

Much of the focus on a chief justice's performance, Wheeler says, is on the more visible roles that he plays. However, the chief justice has also played an important administrative role since Taft presided over the Court. As an administrator, or "Third Branch Leader," the chief justice presides over the Judicial Conference of the United States. He appoints the director and deputy director of the Administrative Office of the U.S. Courts, which performs a number of duties involving "budget preparation and administration, personnel management, technology procurement, and statistical reporting" (p. 117). The chief justice also appoints over 200 federal judges to committee positions to make certain that the federal courts are functioning well internally. The author notes that these committee assignments are very important as the judges will often be addressing members of Congress about matters relevant to the courts.

During Chief Justice Rehnquist's tenure, the size of the federal judiciary, including courts, administrators, and staff, and the judicial budget grew tremendously. Wheeler examines both the appointments Rehnquist made over time and the manner in which Rehnquist handled his administrative duties. He finds that, while overall Rehnquist did appoint more Republicans than Democrats to chair committees, largely an artifact of the number of Republican presidential appointments, one should examine these appointments more closely. Wheeler's analysis reveals that as an administrator, Rehnquist was more concerned with distributing the chairmanships across circuits and making certain that newly appointed judges had an opportunity to serve. Rehnquist also made appointments to committees that would facilitate good working relationships with Congress.

Wheeler also discusses Rehnquist's staunch advocacy of the federal judiciary. In very recent years, Congress has limited sentencing discretion, and members of Congress have publicly threatened to impeach members of the federal bench for their decision making. In response, Rehnquist, as republican schoolmaster, reminded Congress about the role federal courts must sometimes play to correct wrongs and about failed attempts in our history to oust judges for making unpopular decisions.

Although Wheeler states that Rehnquist performed this function well and fairly, he concludes with some concerns about the changes in the federal judiciary-its growth in size, budget, and functions-and the ability of future chief justices to take on the responsibility of third-branch leader as it currently stands.

* Forrest Maltzman and Paul J. Wahlbeck, "Opinion Assignment on the Rehnquist Court," 121-26, 181.

Maltzman and Wahlbeck use the late Justice Harry A. Blackmun's papers to study Rehnquist's opinion assignments from 1986 to 1993. Rehnquist had stated that he was very concerned about equity when assigning opinions but added that he would take "the timely completion of majority opinion drafts, dissenting opinions, and the casting of votes" into consideration as well (p. 122). The authors note that political scientists have used primarily two different approaches to study opinion assignments. Opinion assignments made to ensure equity and harmony on the Court are what Maltzman and Wahlbeck refer to as the "organizational needs" model in which the chief justice takes care to distribute the opinion assignment evenly to promote harmony on the Court.

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