How Rehnquist Changed America

Lis

ten 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.

Especially after Antonin Scalia and Clarence Thomas joined the court, giving him two firm allies, Rehnquist spearheaded a determined effort to stem — and roll back — the liberal advances made by the Warren and Burger courts. In many ways it worked. Affirmative action is more difficult to implement now. The barrier between church and state is more porous. Convicted criminals have a much harder time getting multiple appeals heard in federal courts. But Rehnquist's most enduring legacy is in the less visible but crucial area of federalism — the balance of powers between Washington and the states. The Rehnquist court has sharply trimmed the power of Congress to tell the states what to do. His abiding belief that the Constitution was created to restrain the reach of the Federal Government has been his mantra as Chief Justice. Rehnquist did not always get his way: not on Miranda rights, which he opposed (though he wrote the 2000 opinion upholding them, acknowledging that the matter was now settled law), or on Roe v. Wade, in which he was one of two dissenters. But the days are long over when liberal groups could count on the court to carry forward their agenda.

Disaffirming Affirmative Action
The signal achievement of the Warren court was its unanimous ruling in 1954's Brown v. Board of Education that segregated public schools were unconstitutional. During Rehnquist's Senate confirmation proceedings in 1971, it emerged that in the early 1950s, while he was a clerk for Supreme Court Justice Robert Jackson, Rehnquist had prepared a memo defending the old and reviled "separate but equal" doctrine. Rehnquist insisted that he had merely been distilling Jackson's views. But the court he eventually led made job-discrimination claims harder to win and rejected the use of statistics showing that the death penalty in Southern states was imposed in a racially biased way.

As for affirmative action, it was Rehnquist's court that ruled in 1995 that preferential treatment based on race in government programs is almost always unconstitutional. This was a legal earthquake, throwing into doubt most of the government's affirmative-action programs. A secondary tremor could come this week in a pair of University of Michigan cases involving the use of race as a factor in the admissions process. It's true that some colleges and universities around the country are already using creative ways of getting around a possible affirmative-action ban. But if the court bars or narrows affirmative action in admissions policies, it will nonetheless put a chill on many of those nontraditional efforts, while public schools nationwide will have to throw out the traditional ones as well. "The court has shown a distinct distaste for race-based remedies," says A.E. Dick Howard, a professor at the University of Virginia School of Law. "No matter what it decides in the Michigan cases, it has made it harder across the board to have affirmative action."