Slate's Jurisprudence: Rehnquist's Place in History

Alex Chadwick speaks with Slate legal analyst Dahlia Lithwick about the legacy of late Chief Justice William Rehnquist. She argues that Rehnquist's impact on the high court rivals that of history's most renowned jurists.

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ALEX CHADWICK, host:

This is DAY TO DAY from NPR News. I'm Alex Chadwick.

Earlier this morning, President Bush said he is resubmitting Judge John Roberts to the Senate, now to succeed Chief Justice William Rehnquist who died on Saturday. The Supreme Court under Chief Justice Rehnquist reinvigorated the conservative vision of American law. He became a hero to many judges and politicians and citizens who didn't like the famed activist Warren court of the '50s and '60s. Joining us to discuss Chief Justice Rehnquist's legacy is Slate legal analyst and regular DAY TO DAY guest Dahlia Lithwick. Dahlia, welcome back to the program. And you write on Slate that Justice Rehnquist's abiding legacy will be his confidence. What did you mean by that? I wasn't quite sure when I began.

DAHLIA LITHWICK (Slate): Well, essentially, Alex, what I think is important to understand about Rehnquist is he's been an extremely conservative jurist. Make no mistake about it. He's very different from a conservative jurist like a Clarence Thomas or an Antonin Scalia, because he's so certain that he's right that he doesn't expend a lot of energy anymore toward the end of his career trying to sort of prove that. He was very, very certain of his rightness in everything. He did away with long, rambling conferences where all the justices would debate and discuss their opinions and turn them into these very sort of streamlined affairs, because he just felt very confident that nobody's debating would change anyone's mind.

So I think from the most major notions of the role of the court in American life to the sort the most minor notions about, `I don't care if it's politically incorrect, we're singing Christmas carol at the Christmas party every year.' He just had this abiding belief that he was right about things and wasn't going to change for anyone.

CHADWICK: Which of his legal values do you see in federal law now?

LITHWICK: Oh, so many of them. I mean, when he started out as--people used to call him the Lone Ranger, and he was the lone dissenter in this very liberal court. And if you look at the sort of arc of his career, things that he was advocating then are now sort of the law of the land, primarily the notion of states' rights, that states have dignity and that the federal government can't trammel them; the notion that states can be immune from suit from their own citizens; the notion that the Constitution needs to be construed strictly, read the way the framers intended it, doing away with a lot of what he saw as the sort of civil rights excesses from the Warren court. All of those things that we now see in our legal landscape are really the thumbprint of William H. Rehnquist.

CHADWICK: You also right that really a great part of his entire philosophy was that the Supreme Court took priority over Congress in defining American law. Isn't this sort of the vision of the imperial court that many of his admirers in politics and the public actually, you would think, philosophically would not like?

LITHWICK: That's exactly right, Alex. That's the sort of paradox. If you compare him to someone like John Roberts, who will now likely succeed him, John Roberts is much more of the view that judges take too much upon themselves, they're way too activist. These are unelected people, and the scope of what they do should be constrained. Rehnquist was much more of the view that judges are, you know, essentially very wise. And, in fact, as you say, over and over again in his career, he made rulings that kind of conflicted with what you would expect him to have thought, only because, in the end, what he was constantly gunning for was the primacy of the Supreme Court. He wanted always to be clear that the Supreme Court had the last word.

CHADWICK: In weighing up his legacy, you write about him, `Look, this just basically is one of the few great Supreme Court chief justices.' Why do you say that?

LITHWICK: Well, I want to be clear that I'm not saying great in the sense of a value judgment. You know, history will decide that far better than I could. But I think in terms of someone who had an absolute unquestionable influence on the court, there's no doubt in my mind that he is up there with some of the great ones in history--Warren and Marshall--in terms of taking a court that was one thing and steering it inexorably in a completely different direction, and doing that always with an eye toward history and an eye toward the sort of larger role of court in the view of the public and in the view of government. I think his sense of history cannot be underestimated. This man wrote several history books himself. He was always thinking about making his mark and the court's mark in the history of this country.

CHADWICK: Dahlia Lithwick, legal analyst for the online magazine Slate, regular contributor to DAY TO DAY.

Dahlia, thank you.

LITHWICK: It's my pleasure, Alex.

CHADWICK: The chief justice's body will lie at the Supreme Court on Tuesday and Wednesday. There'll be a private burial at Arlington National Cemetery on Wednesday.

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