How Rehnquist Changed America

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Listen closely around official Washington this week, and you can hear a very subtle sound. It's people holding their breath. The latest Supreme Court term is drawing to a close. There are important rulings on affirmative action and gay rights still outstanding. But the decision that the city is really waiting for will be handed down by one man alone. At age 78, with a bad back, a Republican in the White House and his own powerful legacy firmly in place, Chief Justice William Rehnquist may decide this would be the perfect time to retire. If he steps away now, he ensures that his successor will be chosen by a Republican President--and that it will happen before the hurly-burly of an election year.

But it's been so long since we have had an old-fashioned confirmation bloodletting, you could almost forget the foul mood that overtook the U.S. during the fights over Robert Bork and Clarence Thomas. Washington was so shell-shocked by the Thomas battle that people were intent on turning the next Supreme Court vacancy, in 1994, into a milder affair. And Stephen Breyer's confirmation process proved to be a breeze.

If Rehnquist does step down, don't expect a bipartisan buddy system to play much of a part in choosing his successor. George W. Bush has already parried a request made this month by the ranking Democrat on the Senate Judiciary Committee, Patrick Leahy of Vermont, for a fuller dialogue between the White House and Democrats on any high-court nominees. And if Sandra Day O'Connor should also retire this year, the struggle over her replacement could be judicial Armageddon, because O'Connor and Anthony Kennedy have been the court's crucial swing votes. If Bush could replace her with a more consistent conservative, Roe v. Wade itself would be in jeopardy.

But whenever Rehnquist departs, he can do it in the knowledge that the court he led is likely to be remembered as one of the most influential in American history--and not just because of the 5-4 ruling in Gore v. Bush that effectively gave the 2000 election to the man who lost the popular vote. Rehnquist has spent more than 31 years on the high court, 17 of them as chief. That has been time enough to see the court, and much of the nation, come around to the conservative views that once made him so isolated that he kept a Lone Ranger doll on his mantelpiece, symbolic of his many solitary dissents.