Rehnquist: From Lone Dissenter to Consensus-Builder

Legal Affairs Correspondent Nina Totenberg describes the career and legacy Chief Justice William Rehnquist.

DEBBIE ELLIOTT, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Debbie Elliott.

Chief Justice William Rehnquist died last night of thyroid cancer. He served on the Supreme Court for 33 years, 19 of them as chief justice. `The Chief,' as he was known, was a pivotal figure in the high court's long history. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG reporting:

Appointed an associate justice by President Nixon and promoted to chief justice by President Reagan, Rehnquist went from a lone conservative dissenter in his early days to a builder of conservative consensus as chief justice. In his last two terms as chief, though, the conservative fortress that he had worked so hard to build seemed to crumble on critical issues that ranged from affirmative action and gay rights to national security.

Rehnquist's initial appointment to the court and his promotion to chief were both mired in controversy. His confirmation hearings focused on charges that as a lawyer in Arizona, he had spearheaded an effort to challenge and intimidate black voters at the polls. He denied any impropriety, just as he denied ownership of the views expressed in a memorandum he wrote while a Supreme Court clerk in 1953, arguing that the court should uphold the constitutionality of segregated schools. Rehnquist said that his boss, Justice Robert Jackson, had asked him to write the memo, a contention that Jackson's biographer would later call absurd.

The confirmation controversies, however, soon faded as the 47-year-old Rehnquist moved from the job of assistant attorney general he held in the Nixon administration to the job of associate justice and later chief justice. As chief, he earned the respect of conservatives for transforming much of the court's jurisprudence from liberal to conservative, while at the same time, he earned the respect of fellow justices of all ideologies who regarded him as a fair and efficient administrator of the court.

William Hubbs Rehnquist was born into an affluent, upper-middle-class family in Milwaukee, Wisconsin. After a stint in the Army in World War II, he attended Stanford then Harvard, where he first got the idea of becoming a lawyer.

(Soundbite of previous interview)

Chief Justice WILLIAM REHNQUIST: I was on the GI Bill, and they would pay for an occupational test that told you what you ought to be. And this test said I ought to be a lawyer, so I became a lawyer.

TOTENBERG: After a Supreme Court clerkship, he settled in Arizona, began practicing law and associating himself with conservative and Republican causes, all of which led to a top Justice Department job in the Nixon administration. At Justice, as one biographer put in, Rehnquist became the hit man, seeking out and destroying new left targets with lethal accuracy. When a Supreme Court came open in 1971, President Nixon's mind turned immediately to the man at Justice whose name he couldn't quite remember, the man he called "Renchburg."

Once on the court, Rehnquist became known for his single-vote dissents. He dissented in religious cases, states' rights cases, women's rights cases, civil rights cases and death penalty cases. Indeed, so frequently was he the lone dissenter that at one point, his law clerks presented him with a small Lone Ranger doll.

A decade later, however, he was leading a conservative posse that gained new members with almost every passing year. Nowhere is that more apparent than in the area of federal vs. state power. By the 1990s, he had a five-justice majority that was striking down federal laws right and left for stepping on the toes of the states.

But there were also some surprises from the chief justice. He wrote the court's opinion upholding the Family and Medical Leave Act, a federal that guarantees up to 12 weeks of unpaid medical leave for all employees, including state employees. Then, too, there was the opinion he wrote in 2000 upholding the so-called Miranda Rule requiring that suspects be advised of their rights. Miranda, decided initially 34 years earlier, was a decision that Rehnquist had long opposed, but now he was adding to its legitimacy in the face of a challenge from conservative activists. Why? Many scholars and Rehnquist watchers believe that over the years, the chief justice became more loyal to the Supreme Court as an institution than he was to his personal ideology. Former Rehnquist law clerk Mike Young, now president of the University of Utah, says upholding Miranda was clearly difficult for Rehnquist, but the ruling had become so much a part of the nation's legal fabric over time.

Mr. MIKE YOUNG (President, University of Utah): I do think there is a respect for the institution and the role it plays that he feels more responsibility for now than one may feel just as an individual justice.

TOTENBERG: Overall, though, Rehnquist was the man who put together the conservative coalition that eroded much of what previous liberal courts had done. In doing so, his conservative majority struck down more federal laws than any court in memory. And liberals came to level at the Rehnquist court the same criticism that conservative critics used to level at the liberal Warren court, the criticism of judicial activism. Indeed, in a number of areas, Rehnquist achieved by court decision what conservatives were not able to achieve in Congress. He led a movement to speed the death penalty. He managed to cut back dramatically on affirmative action, though he lost the battle on college admissions. He chipped away significantly at the rigid wall of separation between church and state erected by a more liberal court. And even in the area of abortion, the one place he did not succeed, he managed to make it easier for states to erect hurdles to abortion. In an interview on C-SPAN about the history of the court, Rehnquist seemed to obliquely answer his critics.

(Soundbite of C-SPAN broadcast)

Chief Justice REHNQUIST: The court has built a great deal of prestige, and I think is generally quite well thought of. And it is always possible for the court to overreach its proper bounds and perhaps declare a lot of laws unconstitutional and frustrate the will of the majority in a way that it ought not to be frustrated. And so in that sense, it poses a danger, but not the same sort of perhaps very active danger that a runaway Congress, a runaway executive would.

TOTENBERG: Rehnquist's remarks reflected what he might have called the long view of history, and he was, indeed, a student of the history of the court, having written two books about it. What's more, the chief presided over some signal historic events.

(Soundbite of 1999 recording)

Chief Justice REHNQUIST: Senators, how say you? Is the respondent, William Jefferson Clinton, guilty or not guilty? A roll call vote is required. The clerk will call the roll.

TOTENBERG: Rehnquist said his role as presiding judge at the Clinton impeachment trial was more symbolic than substantial.

And then, of course, there was Bush vs. Gore, the first Supreme Court case to decide a presidential election.

(Soundbite of 2000 Supreme Court recording)

Chief Justice REHNQUIST: We'll hear argument now on Number 00949, George W. Bush and Richard Cheney vs. Albert Gore, et al.

TOTENBERG: The court's 5-to-4 decision in Bush vs. Gore would, at least in the short run, tarnish the reputation of the court as an apolitical institution. In the short term, the controversy aroused by the court's ruling was all but wiped from the public's consciousness by the 9/11 attacks. In the long term, it is the verdict of history that will count most. For President Bush, what counts now is who he will pick to replace Rehnquist and what it will cost him in political capital. Nina Totenberg, NPR News, Washington.

ELLIOTT: You can follow the career of the Chief Justice at npr.org.

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