Introduction: Evaluating the Rehnquist Court's Legacy

By Marshall, Thomas R. | Judicature, November/December 2005 | Go to article overview

Introduction: Evaluating the Rehnquist Court's Legacy


Marshall, Thomas R., Judicature


Wth United States Supreme Court chief justice William Rehnquist's death, the Rehnquist Court gave way to the Roberts Court. In this symposium 17 judicial scholars assess the Rehnquist Court's place in American history.

The Rehnquist Court leaves behind an important legacy. Chief Justice Rehnquist himself presided over the Supreme Court for 19 terms-longer than any other chief justice except John Marshall, Roger Taney, and Melville Fuller. William Rehnquist took his seat as an associate justice in 1972, and was elevated to chief justice in 1986. From his initial appointment until his death on September 3, 2005, he sat on the high court longer than any except a handful of justices in the Court's history.

The Rehnquist Court was no stranger to controversy. This is not surprising. As Alexis de Tocqueville observed well over a century earlier, most important controversies in American society become lawsuits and, in time, become Supreme Court decisions. Bush v Gore (2000), Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), Lawrence v. Texas (2003), Atkins v. Virginia (2002), and Texas v. Gregory Lee Johnson (1989) might well rank at the top of the Rehnquist Court's greatest controversies. Yet dozens of other decisions also changed the direction of American law, among them City of Richmond v. JA. Croson Co. (1989), Webster v. Reproductive Health Services (1989), Michigan Department of State Police v. Stitz (1990), Payne v. Tennessee (1991), Lee v. Weisman (1992), Shaw v. Reno (1993), U.S. Term Limits v. Thornton (1995), Roemer v. Evans (1996), Printz v. United States (1997), Kansas v. Hendricks (1997), Zelman v. Simmons-Harris (2002), Ring v. Arizona (2002), and Roper v. Simmons (2005). That this list omits so many other important decisions only reminds us how much the Rehnquist Court did to shape American society.

Not only did the Rehnquist Court hand down many important decisions. It also overturned its share of federal, state, and local laws and the Court's own precedents. By one count the Rehnquist Court (through 2002) struck down at least 34 congressional acts, and 104 state or local laws (through 2001). The Rehnquist Court was no less sparing of earlier Courts, by 2002 overruling 36 prior cases in part or whole.1 By historical standards the Rehnquist Court ranks as one of the most activist in American history.

In other ways, too, the Rehnquist Court changed legal history. The federal courts became more professional and better funded. The Court finally achieved nearcomplete control of its own docket. At the same time the Court sharply cut the number of full, written options by nearly half, institutionalized concurrences as well as dissents as a norm, and showed itself quite accepting of interest group involvement in its judicial process.

Chief Justice Rehnquist was himself an important force in the Court's development. As an associate justice, his conservative views often caused him to dissent from the Court's decisions. After he became chief justice, and as the Court's majority grew more conservative, he often, although by no means inevitably, pulled together a majority (sometimes by a single vote) in support of his conservative views. As the Court's spokesman, he consistently lobbied for more federal judges, greater judicial independence, and larger budgets. While serving as chief justice, he authored several books on the Supreme Court's history. He presided over President Bill Clinton's impeachment trial in the U.S. Senate, and the inauguration of three presidents. He was widely regarded as a skillful, even-handed administrator in running the Court's closed-door conferences, assigning authors to opinions, and ensuring decisions were timely completed. Perhaps not surprisingly, Chief Justice Rehnquist already wins mentions on several lists of top-ranked justices.

Leading off this symposium is Professor Harold J. Spaeth who evaluates Chief Justice Rehnquist from the perspective of the attitudinal model-a well-known, provocative, and thoughtful argument by Professors Spaeth and Jeffrey A.

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