Autopsy  

The Rehnquist Legacy

by Timothy Sandefur

The Chief Justice rests in peace. His legacy rests in pieces.

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William H. Rehnquist served as Chief Justice of the United States for almost 20 years, after having already served 14 years as an Associate Justice. Appointed by Richard Nixon, Rehnquist's 33 years on the Court rivals the records set by William Douglas (36 years), Stephen Field (34), and John Marshall, who served 34 years as Chief Justice.

He succeeded Warren Burger, who had failed, as Chief Justice, to bring a sense of unity or even collegiality to the judges, if Woodward and Armstrong's "Brethren" is to be believed. During the Burger years, judges on the extreme left, such as Douglas, Thurgood Marshall, and William Brennan, were frequently unable to find common ground with their conservative colleagues. These years saw some of the most controversial decisions of the Court, and the most heated confrontations among its personnel. Perhaps the lowest point came in 1973, when Douglas, ignoring the decisions of his colleagues, enjoined the bombing of Cambodia, forcing Marshall to reverse him. Burger's inability to maintain discipline among the Justices was also evident in media leaks from the Court and the large number of individual opinions issued during his tenure. Appointing Rehnquist, an already-sitting member of the Court, to be Chief, was thought to ease these tensions.

But as with much else, Rehnquist's success in this regard would be easy to exaggerate. We cannot know for sure what goes on in the secretive Court building, but the morale-boosters that Rehnquist instituted — such as requiring the Justices to shake hands before every conference meeting — have not cooled the philosophical disputes, let alone the rhetorical battles, that go on there. Ten years ago, Justice Scalia concluded an opinion by writing that "the Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize." Just this year, Justice Thomas likewise declared that "something has gone seriously awry with this Court's interpretation of the Constitution." Justices Scalia and Souter have even accused each other of writing cases like Dred Scott. Some of these decisions have drawn applause and laughter for their piercing wit; Scalia's were even recently published in book form, and many of them are quite correct. But the heated tone reveals that the Court's members disagree on some of the most fundamental issues of constitutionalism.

This is a serious problem because a constitution is written for people of fundamentally shared views. Although people in a political society will always differ on particulars, no society can long exist without a core of deeply shared principles, which make the differences small by contrast. But the world of American constitutional law is profoundly divided over first principles. When Tocqueville wrote that "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question," he was hinting at the way that political disputes tend to overflow their constitutional boundaries. The distances between advocates of policies can widen until they become differences over fundamentals, and, finally, tear apart the deepest of political foundations. This process is going on now in the United States, at a slow pace — a sort of "creeping inflation" of political philosophy. The symptoms are to be found everywhere: in talk of a "culture war"; in the angry disputes over judicial nominations; in Professor Laurence Tribe's recent decision not to publish the second volume of his Constitutional Law treatise, because, as he explained, "conflict over basic constitutional premises is today at a fever pitch"; and in the belligerent tone of Supreme Court opinions. Rehnquist was unable to douse that fire. Perhaps the best symbol of this came in Bush v. Gore, which was issued as a "per curiam" opinion — meaning "by the Court"; a designation routinely used to avoid pinning a decision on a particular Justice, and to put a united face on the Court — but which was nevertheless accompanied by dissents from Stevens, Souter, Ginsburg, and Breyer, and a concurrence by Rehnquist himself. The polite face of the "per curiam" designation was completely ineffective in disguising the obvious party lines.

The depth of the Court's fractures can also be seen in three areas of law that are generally considered the prototypical examples of Rehnquist's influence. It was a logical move for President Reagan to name him Chief Justice in 1986, because he had long established himself as an opponent of federal aggrandizement. As early as 1976 he had argued the then-moribund position that the Commerce Clause is not a blank check for congressional power. This view became the theme for those wishing to encapsulate Rehnquist's judicial philosophy: the "federalist revival," which promised to actually enforce the Constitution's limits on the federal government, and allow states greater leeway, gained not only popular support, but even some actual legal muscle, culminating in United States v. Lopez (1995) and United States v. Morrison (2000). These cases, both written by Rehnquist, held that Congress could only use its power to "regulate commerce . . . between the several states" when the activity in question was actually commercial in some way. Before then, the Court had allowed Congress to do absolutely anything under this Clause, on the theory that absolutely everything has some effect on commerce between the states.

Rehnquist opened Lopez with the startling declaration: "We start with first principles. The Constitution creates a Federal Government of enumerated powers." For the next ten years, these words would lead libertarians and conservatives to hope that Congress might be forced to respect its limits. That hope grew brighter when, inMorrison, Rehnquist explained that such limits were necessary because "the Constitution requires a distinction between what is truly national and what is truly local. . . . Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims." But in the years to follow, the Court failed to apply, or even to consider, these principles in any broader scope. In SWANCC v. Army Corps of Engineers and Jones v. United States, the Justices dodged the questions, and in the years since, they have simply closed their eyes, refusing to take case after case involving federal environmental and criminal laws that are obviously none of Congress' business. Finally, in 2005, Rehnquist's 30-year crusade against the blank-check theory of the Commerce Clause was blasted into splinters in Raich v. Gonzales. Abandoned by such allies as Scalia and Anthony Kennedy, Rehnquist watched from the dissenting bench as the Court declared Congress' commerce power to be virtually limitless once again: the federal government may regulate even the most local activities if it can possibly imagine — even without evidence — that, "taken in the aggregate, [the activity would] substantially affect interstate commerce." The "federalist revival" was over.

Along with the federalist revival was the apparent revival of interest in property rights. In such cases as Nollan v. California Coastal Commission, Lucas v. South Carolina Coastal Commission, Dolan v. Tigard, and First English Evangelical Lutheran Church v. Los Angeles, the Rehnquist Court halted what had seemed an unstoppable trend of buck-passing with regard to the Fifth Amendment's guarantee that property owners must receive compensation when their property is taken by government. These and other cases held that, sometimes, when the government takes away the value of a piece of property through its regulations, the authorities must pay for that taking.

But, as with the federalist revival, Rehnquist would live long enough to see these cases disintegrate. In Tahoe Sierra Preservation Council v. Tahoe Regional Planning Agency (2002), the Court held that a supposedly "temporary" moratorium on all construction in the Lake Tahoe area — which had lasted for more than two decades and continues today — was not a taking of property at all, despite the Court's previous decisions that taking the whole value of a piece of property requires compensation (Lucas), and that temporary takings also require compensation (First English). Writing for the majority, Justice Stevens explained that this outcome was necessary because applying the just compensation requirement in a principled way "would undoubtedly require changes in numerous practices that have long been considered permissible. . . . A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive." In other words, the Fifth Amendment does not apply, because government can't afford to pay for all the things it takes. Finally, in a series of cases in his final term, Rehnquist watched the Court erase the "public use" limitation on eminent domain, deprive property owners of their day in federal court, and deal a serious blow to the regulatory takings precedents.

The third area of the law which is commonly seen as a product of Rehnquist's leadership fared somewhat better. Along with limiting the Commerce Clause, the Rehnquist Court placed much heavier emphasis on the "sovereign immunity" of the states — forbidding Congress from writing laws that allow citizens to sue their own state governments. Since Congress had frequently expanded its reach on the cheap by simply ordering states to do certain things, and then allowing private citizens to sue those states that did not comply, the sovereign immunity cases were also an element of the "new federalism." But these cases suffered from some significant weaknesses, not the least of which was the fact that they have not a shred of constitutional foundation. The 11th Amendment forbids citizens of one state from suing another state in the federal courts; it says nothing about citizens suing their own states. What's more, sovereign immunity as often as not ends up harming the individual rights of citizens rather than protecting them. As Robert Levy concludes, "by enlarging the scope of the Eleventh Amendment beyond any conceivable reading of its text, our courts have allowed a common law doctrine to trump the laws duly enacted by the federal legislature. . . . Consequently, the common law rights of state government will supersede the statutory rights of individuals. That astonishing — some might say, 'un-American,' — development flies in the face of the Supremacy Clause."

The Rehnquist Court's heavy emphasis on textualism lost credibility in these cases, but its claim to respect the views of the framers suffered even more. The Constitution's authors understood that federalism is not an end in itself, nor is the "dignity" of states. Rather, federalism — particularly after the Civil War — is an instrument for protecting individual rights, and is legitimate only to the degree that it does so. As James Madison wrote in "The Federalist":

Was, then, the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the government of the individual States, that particular municipal establishments, might enjoy a certain extent of power, and be arrayed with certain dignities and attributes of sovereignty? We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape — that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form? It is too early for politicians to presume on our forgetting that the public good, the real welfare of the great body of the people, is the supreme object to be pursued; and that no form of government whatever has any other value than as it may be fitted for the attainment of this object. . . . [A]s far as the sovereignty of the States cannot be reconciled to the happiness of the people, the voice of every good citizen must be, Let the former be sacrificed to the latter.

What misled the Rehnquist Court into ignoring these principles, and reaching beyond the Constitution's plain language? The answer is to be found in one of Rehnquist's greatest weaknesses as a judge: his ambivalence toward individual rights. Like most judges today, Rehnquist regarded rights as privileges granted to citizens by the state. "If such a society adopts a constitution and incorporates in that constitution safeguards for individual liberty," Rehnquist wrote in the Texas Law Review in 1976, "these safeguards indeed do take on a generalized moral rightness or goodness . . . neither because of any intrinsic worth nor because of any unique origins in someone's idea of natural justice but instead simply because they have been incorporated in a constitution by the people." This startling eulogy to legal positivism led Harry Jaffa, in his book "Original Intent," to conclude that "the Framers of our Constitution clearly and wisely believed that there must be a lawfulness antecedent to positive law for positive law itself to be lawful. When Justice Rehnquist says that constitutions do not have any ground in any 'idea of natural justice,' he is repudiating the Framers, and John Marshall who followed them." This is plain from a speech Rehnquist gave at the University of Virginia on the 250th anniversary of Thomas Jefferson's birth. In a speech full of praise for Alexander Hamilton, John Marshall, and other anti-Jeffersonians, Rehnquist had almost nothing to say of the animating mind of American liberty. Rather, he claimed that "the permanence of Jefferson resided not in his specific theories or acts of government, but in his democratic faith," even though Jefferson's greatest "theory" was that liberty, and not democracy, was the goal of politics. "Each era," Rehnquist went on, "finds its own meaning from Thomas Jefferson" — equivocal praise indeed from a man who all his life scorned the theory of a "living Constitution."

Rehnquist's inability to understand individual rights naturally led him to focus on institutional arrangements rather than substantive outcomes; on process rather than on results. This was a refreshing change from a jurisprudence which had often tortured its reasoning to fit predetermined outcomes. But it also often meant perpetuating the wrongs of past courts, as with his dissent in West Lynn Creamery v. Healy, in which he emphasized his agreement with New Deal-era cases that savaged economic freedom. In that case, Massachusetts enacted a discriminatory tax on milk sold to in-state retailers by out-of-state wholesalers; the proceeds of the tax were then given to the domestic dairies. Although the Constitution's Commerce Clause was specifically intended to bar states from engaging in this sort of protectionism, Rehnquist, joined only by Justice Harry Blackmun, argued that the Clause should not apply. In the process, he endorsed the extreme pro-regulation views of Justice Louis Brandeis, who argued in a famous dissent that states can act as "laboratories" trying legislative experiments on their human subjects, even when such experiments violate the right to earn a living. For Rehnquist, it appears, states came first, individuals second, and the federal government third — not a hierarchy the Constitution's authors would have endorsed. His caricature of the free market in Healy as "messianic insistence on a grim sink-or-swim policy of laissez-faire economics" was of a piece with his endorsement of United States v. Leon (holding that the police may search homes even on the basis of invalid warrants, so long as the officer executing the warrant sincerely believes that it is valid) or Atwater v. Largo Vista (holding that the police may arrest a person, and drag her away in handcuffs, for not wearing a seat belt).

Throughout his career, Rehnquist derided the Miranda requirements as "legislating from the bench," and with good reason. Yet at the last minute, in the 2000 case of Dickerson v. United States, he blinked, and in one of the worst-reasoned decisions in Supreme Court history, held that the Miranda warnings had somehow become part of the Constitution because they are repeated on TV cop shows. His attitude toward free speech was similarly weak; in Texas v. Johnson he concluded that the 1st Amendment does not apply to flag burning because it "convey[s] nothing that [can] not have been conveyed . . . just as forcefully in a dozen different ways," and because "the government is simply recognizing as a fact the profound regard for the American flag created by [American] history when it enacts statutes prohibiting the disrespectful public burning of the flag." Evidently, such "profound regard" can trump the free speech rights of angry dissenters.

Lacking any serious understanding of individual rights, no "revival" of long dormant constitutional theories could have hoped to succeed. Nor could William Rehnquist's legacy as Chief Justice of the United States hope to be anything but mixed. American constitutional law is caught in a bind between those who believe that individuals derive their significance and their rights from the permissions of the majority, and those who believe that people have certain inalienable rights which government exists to respect. Every year, that division becomes wider. Despite the many positive advances made during his tenure, Chief Justice Rehnquist's attempt to stop this breach — if he even really made one — failed. Whether anyone at all can succeed is the question on which the nation's future depends.

© Copyright 2010, Liberty Foundation

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