Chief Justice Rehnquist: "Poster Child" for the Attitudinal Model
Spaeth, Harold J., Judicature
From the conservative outlier on the Burger Court, Rehnquist became the chief of a staunchly conservative Court.
Wlliam H. Rehnquist, the last of Nixon's four confirmed nominees (out of a total of six nominations), served for 33 years and nine months, tied with William Brennan and the first John Marshall Harlan for the sixth longest term in history. He occupied the center chair for the last 19 terms of his service, longer than all but three of his 14 predecessors-John Marshall, Roger Taney, and Melville Weston Fuller.1 Previous to Rehnquist, no justice had died in office since Robert Jackson in 1954.2 Jackson, incidentally, was the justice for whom Rehnquist clerked following his graduation from Stanford Law School.
Rehnquist's tenure took him from a lone voice on the conservative fringe of the Court to a position at the heart of a solidly ensconced conservative majority. The focus of this article is on aspects of his behavior that document this evolution and also on his actions that give the lie to the widely held belief that, except for Bush v. Gore,3 he personified judicial restraint and strict construction. Analysis begins with the Court's 1971 term, which Rehnquist joined in January 1972, and ends two months prior to the end of the 2004 term, Rehnquist's last. Usable data beyond April 2005 was not available as of the time of this writing.
Rehnquist began his tenure on a Court that had rapidly shifted from a liberal orientation at the end of the Warren Court in 1969 to one, three years later, that was without a built in ideological majority. In addition to Rehnquist, the other three Nixon appointees-Chief Justice Warren Burger, Lewis Powell, and Harry Blackmun-comprised the Court's conservative wing. William O. Douglas, Thurgood Marshall, and William Brennan comprised the liberal side, with Potter Stewart and Byron White a pair of swing justices.
The new justice required no settling in time. Joining the Court almost midway through the 1971 term, he promptly anchored the Court's conservative wing, supporting a liberal outcome in civil liberties cases-those concerning criminal procedure, civil rights, the First Amendment, due process, privacy, and attorneys-almost 10 points less often than either Burger or Powell, his closest colleagues: 26 percent, as compared with 34 and 35. Indeed, in only one of 19 criminal procedure cases during his first term did he vote liberally. His conservative proportions in these issue areas did not appreciably vary during the next 30 years notwithstanding a sea change in the Court's output from the middle of the ideological road to one of staunch conservatism.4
Because of the Burger Court's conservative tilt, Rehnquist did not find himself in the minority to the extent the three liberals-Douglas, Brennan, and Marshall-and John Paul Stevens did. But he was less frequently in the majority (80 percent) than his conservative and moderate colleagues who ranged from Powell's 90 percent to Stewart's 84 percent. On his own Court Rehnquist appreciably improved his majority participation to 83 percent, a level exceeded only by Anthony Kennedy at 90 percent, Powell-who served only during the first term of Rehnquist's chief justiceship-at 89 percent, White at 87 percent, O'Connor at 86 percent, and David Souter at 84 percent. The other eight justices all fell below him. (See Table 1.)
Better characterizing Rehnquist's conservatism was the frequency of his solo dissents on the Burger Court relative to his conservative colleagues, Burger, Powell, and Blackmun. On the Burger Court, Rehnquist solo dissented 62 times, versus Burger at 13, only a fifth as frequently as Rehnquist notwithstanding a two and one-half term head start. Powell solo dissented only 11 times, Blackmun only 16 times. Far more than the other three conservatives, Rehnquist focused his solo dissents in constitutional cases, especially those that concerned civil rights and liberties. Forty-five of the 62 (73 percent) involved a constitutional question, and 53 (86 percent) pertained to civil rights and liberties. …