Magazine article The American Conservative

Misjudging Rehnquist

Magazine article The American Conservative

Misjudging Rehnquist

Article excerpt

[ILLUSTRATION OMITTED]

The Partisan: The Life of William Rehnquist, John A. Jenkins, Public Affairs, 320 pages

William Rehnquist was the most Jeffersonian associate justice of the Supreme Court in history. Even before Ronald Reagan and Edwin Meese made originalism the touchstone of conservative constitutionalism, Rehnquist spent a decade toiling as an isolated dissenter in the vineyard of the actual Constitution rather than stare decisis. To Justice William Brennan's infamous "Rule of Five"--as Brennan explained to one of his clerks, with five votes, he could do anything-Rehnquist opposed the idea that provisions of the Constitution had fixed meanings established at the time of their ratification. For that, he suffered the slings and arrows of outrageously partisan journalists.

Today, with five conservative justices on the Supreme Court and originalism as the starting point even for liberals' discussion of the Constitution, it may be difficult to conjure the legal world at the time of Rehnquist's appointment to the court by Richard Nixon in 1972. In fact, as recently as 1990 old-fashioned liberal constitutional nihilists still dominated the bench and bar-just as they still dominate academia. When I graduated from the University of Texas School of Law in May of that year, I did what aspiring lawyers do: I took a bar review course to prepare for the bar exam. Like most other states, Texas then had both essay and multiple-choice sections on its exam. When the bar review course's instructor began to discuss the multiple-choice section, she said, "If you are offered 'The Tenth Amendment' as a potential answer, you know that's wrong. It's never right." She laughed and laughed.

Rehnquist was primarily responsible for the restoration of the Tenth Amendment to its position as, well, part of the Constitution. Rehnquist's achievement in this area was part of the greater endeavor of actually trying to restore the federal feature that had been central to the Federalists' argument for ratification of the Constitution in the first place.

At the time of Reagan's election in 1980, Rehnquist stood virtually alone on the Supreme Court in advocating the idea that the Constitution had a fixed meaning. Saying so had made him somewhat of a bete noire for legal scholars and journalists, when they didn't simply adjudge him goofy. How could anyone oppose the latest legal innovations of liberals who had abolished segregation, ordered forced busing, legalized pornography, extended new procedural rights to criminal defendants, abolished the means of ap- portioning legislative bodies that had been used in Anglophone countries for more than 700 years, found new sexual rights in "emanations of penumbrae" of the Bill of Rights, and in general remade constitutional law in their own image?

John A. Jenkins's book borrows the title of a New York Times Magazine cover story on Rehnquist he published a quarter-century ago. Pretty witty, he thinks. The Supreme Court that made the Warren Court revolution was down-the-middle moderate and principled. Rehnquist had an agenda. So, Jenkins tells us, his then-editor averred in assigning him the magazine story. And what kind of agenda? Repeatedly, Jenkins says that if a party before the Supreme Court was female, a criminal defendant, etc., Rehnquist was sure to vote against her. Jenkins castigates Rehnquist for supposedly being results-oriented, but the author never gives his reader any ground for analysis of Rehnquist's performance as a justice other than results.

What do I mean? To my mind, the paradigmatic opinion by Associate Justice Rehnquist was his dissent in the 1985 case Wallace v. Jaffree. In that case, Rehnquist took on one of the landmark decisions of the court authored by his least-favorite 20th century justice, Hugo Black. In Everson v. Board of Education of Ewing Township (1947), Black had "discovered" that the Fourteenth Amendment made Thomas Jefferson's metaphor of "a wall of separation between church and state" enforceable by federal judges against state governments. …

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