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Misjudging Rehnquist

William Rehnquist was the most Jeffersonian associate justice of the Supreme Court in history. Even before Ronald Reagan and Edwin Meese made originalism the touchstone of conservative constitutionalism, Rehnquist spent a decade toiling as an isolated dissenter in the vineyard of the actual Constitution rather than stare decisis. To Justice William Brennan’s infamous “Rule of Five”—as Brennan explained to one of his clerks, with five votes, he could do anything—Rehnquist opposed the idea that provisions of the Constitution had fixed meanings established at the time of their ratification. For that, he suffered the slings and arrows of outrageously partisan journalists.

Today, with five conservative justices on the Supreme Court and originalism as the starting point even for liberals’ discussion of the Constitution, it may be difficult to conjure the legal world at the time of Rehnquist’s appointment to the court by Richard Nixon in 1972. In fact, as recently as 1990 old-fashioned liberal constitutional nihilists still dominated the bench and bar—just as they still dominate academia. When I graduated from the University of Texas School of Law in May of that year, I did what aspiring lawyers do: I took a bar review course to prepare for the bar exam. Like most other states, Texas then had both essay and multiple-choice sections on its exam. When the bar review course’s instructor began to discuss the multiple-choice section, she said, “If you are offered ‘The Tenth Amendment’ as a potential answer, you know that’s wrong. It’s never right.” She laughed and laughed.

Rehnquist was primarily responsible for the restoration of the Tenth Amendment to its position as, well, part of the Constitution. Rehnquist’s achievement in this area was part of the greater endeavor of actually trying to restore the federal feature that had been central to the Federalists’ argument for ratification of the Constitution in the first place.

At the time of Reagan’s election in 1980, Rehnquist stood virtually alone on the Supreme Court in advocating the idea that the Constitution had a fixed meaning. Saying so had made him somewhat of a bête noire for legal scholars and journalists, when they didn’t simply adjudge him goofy. How could anyone oppose the latest legal innovations of liberals who had abolished segregation, ordered forced busing, legalized pornography, extended new procedural rights to criminal defendants, abolished the means of apportioning legislative bodies that had been used in Anglophone countries for more than 700 years, found new sexual rights in “emanations of penumbrae” of the Bill of Rights, and in general remade constitutional law in their own image?


John A. Jenkins’s book borrows the title of a New York Times Magazine cover story on Rehnquist he published a quarter-century ago. Pretty witty, he thinks. The Supreme Court that made the Warren Court revolution was down-the-middle moderate and principled. Rehnquist had an agenda. So, Jenkins tells us, his then-editor averred in assigning him the magazine story. And what kind of agenda? Repeatedly, Jenkins says that if a party before the Supreme Court was female, a criminal defendant, etc., Rehnquist was sure to vote against her. Jenkins castigates Rehnquist for supposedly being results-oriented, but the author never gives his reader any ground for analysis of Rehnquist’s performance as a justice other than results.

What do I mean? To my mind, the paradigmatic opinion by Associate Justice Rehnquist was his dissent in the 1985 case Wallace v. Jaffree. In that case, Rehnquist took on one of the landmark decisions of the court authored by his least-favorite 20th century justice, Hugo Black. In Everson v. Board of Education of Ewing Township (1947), Black had “discovered” that the Fourteenth Amendment made Thomas Jefferson’s metaphor of “a wall of separation between church and state” enforceable by federal judges against state governments. Rehnquist’s Wallace dissent proved that Black’s opinion was completely unfounded.

Rehnquist’s method was that of originalism—the otherwise unexceptionable notion that a legal document’s meaning is to be found in the understanding of the people who adopted it. In the Constitution’s case, that means the ratifiers. So Rehnquist pointed out that Jefferson was neither a ratifier nor an author of the First Amendment’s Establishment Clause, that his formula had nothing to do with that provision’s crafting or ratification, and that in fact it was coined in a letter written by President Jefferson a decade after the relevant clause’s ratification. The opinion is a tour de force of actual constitutionalism and has appeared routinely in popular constitutional law casebooks and in accounts of the American solution to the problem of church-state relations

Jenkins does not mention Wallace. Rather, oddly, he tells us that Rehnquist crafted nary a memorable opinion. This claim is simply untrue.

Can we tell from Rehnquist’s opinion whether Rehnquist thinks statutes such as the one at issue in Wallace are a good idea? No—although Jenkins certainly thinks we can. Quoting partisans of Warren-Burger Court judicial legislation such as Alan Dershowitz and Linda Greenhouse—the latter of whom participated in pro-Roe public demonstrations even while serving as the New York Times’ Supreme Court correspondent—Jenkins consistently equates court decisions in favor of one party or another with sympathy for that party’s evident moral claims. Here he ignores Rehnquist’s point that due process means in the first place neutral application of a neutral statute duly enacted. Rehnquist, in the vanguard of originalists, believed that republican government meant first of all that the people were entitled to make constitutions of their own choosing and then legislate within the bounds of the constitutions they had made.

Jenkins tends to find great brilliance in anyone who agrees with him and to downplay even scintillating intelligence in those who do not. Thus, for example, Jenkins is the first author whom I have ever seen refer to Earl Warren as anything like “an intellectual lion of the Court.” Far closer to the median account of Warren was a contemporary’s characterization of him as a “dumb Swede.” This discrepancy between reality and the author’s take runs through the book: Jenkins repeatedly says that although Rehnquist graduated from Stanford Law School with the highest grade point average he was not first in his class; he repeatedly downplays Antonin Scalia’s famous wit; and he often characterizes Rehnquist and other conservatives as rigid or unyielding. Yet Barry Goldwater, famed for his consistent devotion to principle, appears as “erratic.” At one point, Rehnquist is a participant in a “jihad.” For their part, Warren, William Brennan, William O. Douglas, and other liberals, although they are at least as predictable as Rehnquist, are never described with negative adjectives. Seemingly, one cannot be a rigid lefty, even when arguing that trees should have standing to sue.

Jenkins makes desirable legal outcomes into constitutional legal outcomes throughout his account. Since Rehnquist, as an originalist, rejected this alchemy, Jenkins has a choice between explaining the grounds for Rehnquist’s disagreement and painting Rehnquist as a villain. He chooses the latter. Thus, for example, in describing three memoranda written by then-clerk Rehnquist for Justice Robert Jackson in the 1950s, Jenkins assumes that Rehnquist’s counsel to his boss not to vote to strike down segregation rested on an unexpressed support for segregation. Yet one of those memos included Rehnquist’s reasoning that not only would such a ruling be contrary to the court’s precedent, it likely would also violate “legislative history.” This latter originalist concern rested not on fantasy, but on the research of Alexander Bickel, a clerk for Justice Felix Frankfurter who had returned from an attempt to demonstrate that the court could justify striking down segregation on the basis of the legislative record with the unhappy news that it could not. “Its own sociological views” were not adequate ground for such a ruling, Rehnquist told Jackson.

Of course, in Brown v. Board of Education, the court did strike down segregation. It did so on the basis of sociological claims, and along the way denied that original understanding could be binding. To someone like Rehnquist, the entire exercise was a violation of the justices’ oath to uphold the Constitution, whatever their own policy preferences might be.

Determined to paint Rehnquist as a villain, Jenkins misses significant legal distinctions. For example, Rehnquist’s statement in the 1950s that he opposed both segregation and integration—the former meaning assignment of children to schools based on race, and the latter meaning abolition of neighborhood schools in the name of statistical balance—is classified by Jenkins as “intolerant or even racist.” As chief justice, Rehnquist in the 1990s and 2000s had the opportunity to write this distinction into constitutional law, precisely as the presidents who had put him on the court and moved him to the chief justice’s middle chair had hoped he would do. As a result, the extremely unpopular forced-busing experiment that helped elect Richard Nixon and Ronald Reagan president is now largely a thing of the past. One would not know this from reading The Partisan.

[1]Rehnquist as chief justice also led a court majority that moved a long way toward abolishing “benign” race discrimination. In my view, this line of cases reflected a desirable development in policy terms but was inconsistent with originalism. But because the constitutional amendment that is Brown v. Board of Education is almost certainly a permanent part of constitutional law, it is perfectly reasonable—one might even say incumbent—to apply its principle in other cases. Again there is no explanation of this from Jenkins, who is simply critical of these developments.

Readers interested in learning of William Rehnquist’s record as associate justice and chief justice will be better advised to start elsewhere. Those who hope to become acquainted with Rehnquist the man may find much of this book interesting, in a chatty way. I hope for an account of Rehnquist more respectful of his jurisprudence and less devoted to the box-score version of legal history than the average newspaper account. That account will have to come from an author less partisan than John A. Jenkins.

Kevin R.C. Gutzman is professor of history at Western Connecticut State University and the author of James Madison and the Making of America [2].

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10 Comments To "Misjudging Rehnquist"

#1 Comment By William Dalton On October 2, 2012 @ 2:10 am

Why would a man so unsympathetic to the jurisprudence of William Rehnquist bother to write a book about it and him? No one will buy a book about the late Chief Justice who does not admire him, and no one who admires him will buy this book. So what’s the point?

#2 Comment By Philo Vaihinger On October 2, 2012 @ 5:59 am

By the way, a rule acceptable for interpreting statutes is not necessarily acceptable for interpreting our constitution.

Read Article V. That is how hard it is to change the constitution.

Go look at any legislative chamber at a legislative body at work. That is how easy it is to change a law.

The presumption that the live sovereign agrees with the dead one since he has not bothered to change the law is a lot less egregious nonsense in connection with statues than with the constitution.

And without the presumption that the intentions of the dead are those of the living there is no remotest political justification for enforcing the will of the dead despite that of the living.

Hence, “the living constitution.”

#3 Comment By CDK On October 2, 2012 @ 10:32 am

@ Philo: The sovereign in this case would be the American people. Thus, since no one alive approved or ratified the constitution, it is null and void. So–it logically follows–that the Supreme Court itself should be disbanded as it has no justificatory warrant in the “intentions of the living”. Back to the state of nature, I guess?

#4 Comment By Siarlys Jenkins On October 2, 2012 @ 1:41 pm

Hugo Black was an originalist too. It was Black who offered the reminder that when the Constitution say “Congress shall pass no law” it means Congress shall pass NO LAW. It does not mean Congress shall pass no law unless Congress and the Supreme Court decide that, on balance, the government’s interest in passing the law is greater than the people’s interest in not having the law passed.

Rehnquist performed some valuable services, but he did have an agenda, and it was not pure dedication to the original meaning of the Constitution. My favorite cases, as far as Rehnquist is concerned, were Lopez (Texas gun statute), Lukumi Babalu Ay, and Apprendi, although it was Scalia’s concurrence that was the best of Apprendi.

Jaffree was questionable, because the Alabama law in question did NOT prescribe state-issued prayer, merely a moment of silence. The decision turned on reading the minds of those who passed the law. Later moment of silence statutes were upheld.

But affirming separation of church and state was originalist jurisprudence, with the “liberal” opinions footnoted with early 19th century understandings, state as well as federal, which mid-20th century state political climates had drifted away from.

A misunderstanding was introduced during the civil rights era. The court’s civil rights jurisprudence merely affirmed that the Fourteenth Amendment meant what it said, after a century of “activist judges” tip-toeing around it to squeeze white supremacy back into the practical manifestations of the law.

So loud were the wails from the white supremacists about “our way of life” and upsetting five decades of Plessy v. Ferguson jurisprudence, that even liberals who should have known better got the idea “we can affirm any freedom we want.” No, sir. The court can amend past errors by adhering closely to what was there all along. It can’t made up new stuff from whole cloth.

But Rehnquist had an ax to grind. His purpose was a rather broad agenda to overturn vaguely defined “liberal” jurisprudence, and “originalism” was his weapon of choice. He did not wield it with dispassionate consistency, and thus, his checkered career is open to books like Jenkins’s (no relation to my knowledge).

#5 Comment By Tom Piatak On October 2, 2012 @ 2:19 pm

An excellent review.

#6 Comment By Larry Misch On October 2, 2012 @ 2:58 pm

“We are a nation of Laws”. Oh the headbreaking complications of “law”. It would appear, to the unclean non-jurist multitudes like myself, that those Supreme court justices we are subservient too, (as well as those ever ineffable lower courts), are nothing more than pre-positioning partisan entrenchments playing guess and second guess and third guess according to their chess board like tactical degree of skill. Or would we, by level of sophistication, correctly consider this “strategy” rather than tactic?
After conservative chief justice John Roberts tie breaking decision regarding the Affordable Care Act, one wonders just what they will do next and to what end. Interpretation by the unanswerable, being an un-trusted endeavor in matters of power, seems the inadequate governor. I wonder if not a fourth layer of government is not required to make our representative democracy a, “more perfect union”? Mount Olympus comes to mind.

#7 Comment By Sam Phobos On October 2, 2012 @ 3:15 pm

Did it ever occur to you that it’s no accident that the constitution is hard to alter. There is supposed to be an enduring moral order. The notion that a law ceases to exist when those who passed it dies is indeed a dull-witted one and an invitation to murder, because if the laws of the dead hold no sway, all we need to do is kill the lawmakers, and why not? After all, the laws against murder are usually the oldest in the book and the hardest to change.

#8 Comment By William Dalton On October 3, 2012 @ 2:34 am

Siarlys, Hugo Black was best known for wishing to import every right explicitly established in the Bill of Rights into the Fourteenth Amendment and use that as a basis for striking down state laws. But, unlike “living Constitutionalists”, like William Brennan and William O. Douglas, he would go no further. What William Rehnquist established in his dissenting opinion in Jaffree was that, in regard to church/state legislation, Black’s logic stood logic on its head. It was because most states of the Union had established churches in 1789 that they insisted upon a Bill of Rights, the first Article of which was to prevent Congress from establishing a national Church. The representatives of the States wanted to preserve to themselves the choice whether or not to give state recognition and support to an “established” church and what control to exercise over its doctrine and practice, just as had the British Crown, just has had such civil governments as were first established in specifically religious colonies like Massachusetts. The last thing they would have expected, much less wanted, was to see the Supreme Court, established by the Constitution, use the First Amendment, designed to limit the power of Congress to set standards of religious faith and practice, as a cudgel against the very state churches that were supposed to be protected.

#9 Comment By Paul Hart On October 4, 2012 @ 4:01 pm

I think the court should simply refuse to take controversial cases…heh

#10 Comment By Last Boomer On October 9, 2012 @ 2:04 am

There is no reason to believe that with five justices solidly in their corner, the Originalists won’t reorder this country in a way far more radical than the Brennan or Warren courts. Citizens United alone has vastly accelerated the reappearance of the conditions of the ‘original’ conflict between unaccountable tyranny and unrepresented taxpayers. Rehnquist laid the groundwork.