How Rehnquist Changed America

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Rehnquist always knew where he wanted the court to go. But in recent years it may have become less important to him how the court got there. Even as far back as the late 1980s, a conservative clerk heard him say at lunch, "I used to worry about every little footnote. Now I realize you just need five votes." There's probably no decision where the marshaling of five votes — rather than the legal reasoning behind them — was more critical than the case of Bush v. Gore. At the end of five tense postelection weeks, the court issued an unsigned 5-4 opinion that stopped the recounting in Florida, throwing the election to Bush. Rehnquist worked intently behind the scenes to assemble a majority consensus. The underpinning of that decision — an equal-protection argument that would normally be anathema to conservatives — was described even by many Republican lawyers as being weak and unsustainable as a precedent.

The Conservative Holy Grail?
As with any court, what Rehnquist has built could be torn down over time, but it would not be a day's work. "His doctrines are quite entrenched," says Chicago law professor Cass Sunstein, "both because the court respects its own precedents and because there aren't any liberals on the bench. There are moderates, but nobody is leading a countercharge." If anything, it's more likely — particularly if Bush is re-elected — that a conservative will also replace liberal John Paul Stevens, 83. That would give conservatives their Holy Grail, an unstoppable majority. Such a majority would certainly consolidate and enlarge Rehnquist's legacy after he leaves the court. But whenever Rehnquist retires, he will leave Washington a smaller place for his having been there. From the day he arrived, that was just what he had in mind.