Majoritarian Democracy in a Federalist System: The Late Chief Justice Rehnquist and the First Amendment

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INTRODUCTION

To some, linking the late Chief Justice William H. Rehnquist and the First Amendment smacks of paradox. (1) Known throughout the entirety of his thirty-three years on the Supreme Court for his judicial conservatism, (2) Chief Justice Rehnquist is probably best remembered in the First Amendment arena for the many opinions in which he found no protection afforded by the First Amendment. (3) Rehnquist is also well-known for opinions holding that, if the First Amendment conferred any rights, they were overborne by government interests that the Chief Justice found weightier and more imperative. (4) One noteworthy example is Texas v. Johnson, (5) a 1989 case in which Chief Justice Rehnquist dissented from the majority's holding that a Texas statute criminalizing public flag burning was unconstitutional. (6) It is, therefore, no surprise that some scholars and commentators have criticized the late Chief Justice's First Amendment jurisprudence as meager, unprincipled, or indifferent. (7)

But Rehnquist did not find against the advocates of free speech in every First Amendment case, (8) so a closer examination of his jurisprudence in this area holds some intrigue. (9) In particular, how did Rehnquist determine what protections he understood the First Amendment to afford, and what was his approach to resolving conflicts between acknowledged First Amendment rights and government restrictions impinging on those rights?

An examination of every case in which Rehnquist authored an opinion that treated an issue of freedom of speech, press, or association, addresses these interesting questions. (10) All told, these cases comprise a universe of more than seventy opinions. The late Chief Justice obviously participated in many more than seventy cases involving claims of freedom of speech, press, or association during more than three decades on the Supreme Court. (11) But focusing on that subset of cases where Rehnquist penned his own opinion provides insight into his particular views on the extent of First Amendment protection. (12) Speech cases in which Rehnquist merely joined the opinions of other Justices might indicate generally the doctrines to which he did or did not subscribe, (13) or perhaps more accurately, the outcomes with which he agreed. (14) The opinions of the other Justices, however, do not reveal how Chief Justice Rehnquist's philosophy of protected expression differed from theirs.

Underlying Rehnquist's opinions are two important principles that help explain his approach to speech-related constitutional issues. The first principle is the protection of majoritarian democracy, which entails the protection of democratic values in two different contexts. First, Rehnquist recognized the importance of protecting certain core political speech rights under the First Amendment that he believed essential to maintaining the "majority rule" ideal on which our democracy is premised. Second, he sought to avoid judicial trampling on laws enacted by legislative bodies elected by the democratic majority. (15) These two democratic ideals are somewhat in tension because as the "territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically by the people and their representatives...." (16) The Rehnquist speech cases reveal his efforts to balance these two ideals. The weaker the assertion that the expression at issue was core political speech that enhanced citizens' participation in our democratic system, the greater the likelihood that Rehnquist would find to be more weighty the democratic values inherent in the elected legislature's enactment of the regulation restricting speech, press, or association.

The second principle that helps explain the late Chief Justice's approach to First Amendment problems--and probably of equal importance to his desire to protect democratic ideals--was his zeal for our federalist system. The Rehnquist speech cases demonstrate that he treated federal restrictions on speech with less deference than similar restrictions on speech imposed by the states. …

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