Rehnquist the Great?

One carol that year was sung to the tune of "Angels From the Realms of Glory." It went like this: "Liberals from the realm of theory should adorn our highest bench / Though to crooks they're always chary / at police misdeeds they blench." ("The word 'blench' came from Rehnquist," Bradley says. "I didn't know it meant 'blanch.'") The members of the chorus then fell to their knees and sang, "Save Miranda, save Miranda, save it from the Nixon Four." The so-called Nixon Four were Supreme Court Justices Warren Burger, Harry Blackmun, Lewis Powell, and, of course, Rehnquist.

Twenty-five years later, after having repeatedly ridiculed the constitutional soundness of the decision requiring police officers to read suspects their Miranda rights, Rehnquist voted to uphold it. "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture," he wrote in a 7—2 opinion for the Court in Dickerson v. U.S., in 2000. Rehnquist's apostasy provoked one of Justice Antonin Scalia's most vitriolic dissenting opinions. Joined by Justice Clarence Thomas, Scalia declared, "Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."

Rehnquist's evolution from Miranda's leading critic to its improbable savior infuriated conservatives and confused liberals; but in fact it was emblematic of his career. Throughout his long tenure, liberals always simplistically lumped Rehnquist together with the other conservatives on the Court, whereas conservatives never fully embraced him as one of their own. Furthermore, liberals have never understood how significantly and frequently Rehnquist departed from doctrinaire conservative ideology, and conservatives have failed to grasp that his tactical flexibility was more effective than the rigid purity of Scalia and Thomas. In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be. With exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him. And his administration of the Court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years.

One of Rehnquist's unique and abiding talents was for getting along with his ideological opponents. When he first joined the Court, at the age of forty-seven, he was taken under the wing of the liberal activist William O. Douglas, a fellow westerner who saw in the irreverent young conservative an incarnation of his youthful self. Rehnquist's other liberal colleagues were similarly impressed by his fairness and good nature: Thurgood Marshall called Rehnquist "a great Chief Justice," and William Brennan described him as "the most all-around successful" chief he had known—including Earl Warren. On the current Court, Rehnquist has been praised frequently and effusively by Ruth Bader Ginsburg, who, despite her philosophical differences with the chief justice, admires his administrative skills so much that after the complicated campaign-finance case last term, she told clerks how happy she was that the rumors he was retiring weren't true. One former clerk remembers Rehnquist best for his sensitivity toward colleagues: "He was very concerned about hurt feelings among the justices, and he was very careful and observant of the way that certain memos or interactions would make other justices react or feel. He always avoided invective in his own memos, and smoothed over hurt feelings when other justices used it."

A hallmark of Rehnquist's rule was his unparalleled organizational skill: he got opinions out quickly and made the arguments run on time both in and out of court. When, in a rare interview last year, Charlie Rose asked him how he would most like to be remembered, Rehnquist said as a good administrator; he had tried, he said, to run "a relatively smoothly functioning Court." And he suggested that his ability to get along with a group of strong personalities reflected "a relatively passive nature," a "very high boiling point," and the ability to compromise.

Certainly he was a creature of habit; his daily routine in his chambers remained the same for more than thirty years. He would arrive between 8:30 and 9:00, say hello to his two secretaries, go through his mail, and smoke a cigarette (for years he was a two-cigarettes-a-day man—no more, no less). At exactly 9:30 he would call in his clerks, gently reminding them, if they were even a minute late, that "the doctor doesn't wait for you." A trivia buff, he loved to test the mettle of his clerks at the morning meeting, asking them, for example, to name the five largest states in order of their area. He would often go to the University Club for a swim, to alleviate chronic back pain, and he usually left the office at 4:00. He was not known for taking work home with him. When he assigned the writing of an opinion to himself, he would set a deadline for the first draft ten days away and then start asking his clerks about it after a week. He was insistent that his fellow justices meet his exacting standards for punctuality, and would punish those who fell behind on their opinions (including the notoriously slow Harry Blackmun) by not assigning them new ones. And he ran an especially tight ship during the justices' private conferences, the twice weekly meetings after oral arguments, at which the justices cast their preliminary votes. Briskly going around the table, in order of seniority, to allow each justice to give his or her views, he refused to let discussion wander. Some colleagues complained that this format discouraged active debate, but Rehnquist argued that because most of the justices had already made up their minds, a protracted colloquy would be a waste of time.

Rehnquist's courtroom style was similarly unvarying. He would cut lawyers off in mid-sentence when the red light on the bench began to flash, indicating that their allotted time had expired. (Each side gets precisely thirty minutes.) Some lawyers grumbled about this rigidity, but Rehnquist's clockwork discipline looked appealing in retrospect when Justice John Paul Stevens, who has presided in the chief justice's place during his battle with thyroid cancer, recently let one advocate have extra time and was then compelled to grant an extension to his opponent as well.

Rehnquist's own political sensibility and experience were similarly central to his stewardship of the Court. By temperament and training he represented an older and what has come to be seen as milder strain of conservatism, rooted in the Goldwater wing of the Republican Party. Having cut his political teeth in Arizona in the heyday of Goldwaterism, he came to the Court with a far less angry and embattled attitude toward American democracy than younger conservatives like Scalia and Thomas. And unlike Scalia and Thomas, Rehnquist was never invested in fighting the culture wars from the bench, because of his overriding commitment to majority rule regardless of what the majority decides.

If judicial activism is defined by a judge's willingness to strike down federal or state laws, then Scalia and Thomas are among the most activist justices on the Court today, surpassed only by Anthony Kennedy and, perhaps surprisingly, Sandra Day O'Connor. In contrast, Rehnquist is tied with Stephen Breyer for the role of second most restrained justice, after Ruth Bader Ginsburg. And while all the conservatives on the Rehnquist Court say for public consumption that the judiciary should occupy a modest role in American politics and should defer to the judgment of elected legislators, Rehnquist has most consistently practiced what he preaches.

Rehnquist's Robert Taft—style conservatism—his faith in local majorities and his suspicion of broad federal power—does indeed reflect his midwestern upbringing. Born in 1924, he was raised, along with his sister, Jean, in Shorewood, Wisconsin, an affluent Milwaukee suburb known during the Depression for its Republicanism. Rehnquist's father, the son of Swedish immigrants, was an enthusiastic Republican who had never attended college and made his living selling paper wholesale. His mother, who had majored in French at the University of Wisconsin, was fluent in five foreign languages and worked as a translator for local export businesses.

Rehnquist's early years were suffused with old-fashioned patriotism. He enthusiastically supported U.S. intervention in World War II, and in 1941 he participated in a re-enactment of America's founding called United States of Young Americans. That strong strain of patriotism has been an essential part of his makeup throughout his judicial career. In 1989, when Justices Scalia and Kennedy, both First Amendment libertarians, reluctantly voted to strike down a ban on flag-burning, Rehnquist produced an emotional dissenting opinion quoting John Greenleaf Whittier's Civil War poem "Barbara Frietchie": "'Shoot, if you must, this old gray head, / But spare your country's flag,' she said." It was one of the most personally revealing dissents he ever wrote.

Rehnquist won a scholarship to Kenyon College, in Ohio, but dropped out after one quarter, having found the atmosphere intellectually frivolous. He enlisted in the Army Air Corps and spent three years as a weather observer, ending up in Morocco and Egypt (where he was photographed on horseback in front of the Sphinx). Reluctant to return to the cold Milwaukee winters ("I wanted to find someplace like North Africa to go to school"), he enrolled on the GIBill at Stanford, where he majored in political science.

While he was in the Army Air Corps, Rehnquist encountered a book that would be crucial to the development of his judicial philosophy: Friedrich A. Hayek's The Road to Serfdom. "This book was an advocacy book trying to show that state planning and socialism and that sort of thing didn't work economically and were dangerous politically," Rehnquist told Brian Lamb in a later Booknotes interview. "It made quite an impression on me."

Rehnquist graduated Phi Beta Kappa from Stanford in 1948 with a bachelor's and a master's degree, and then got a second master's degree in political science from Harvard, in the hopes of becoming a professor of government. While at Harvard he started a thesis about the conservative British political philosopher Michael Oakeshott, whose insistence on the importance of continuity and tradition for social stability resonated strongly with Rehnquist. Oakeshott, like Hayek, called into question the centrally planned welfare state, as part of a larger warning against the concentration of power in the hands of government. But Oakeshott resisted Hayek's effort to construct a rigid libertarian ideology as the answer to collectivism; he argued that the best way to protect limited government was with a pragmatically conservative approach to politics, rather than with abstract theories about the true nature of the state.

"The chief's conservatism seems to reflect Oakeshott more than libertarians like Hayek," observes Richard Garnett, a former clerk who now teaches law at Notre Dame, and with whom Rehnquist discussed his admiration for Oakeshott. "It's not always about swashbuckling ideological adherence to first principles. It's also about temperament and disposition, about an attachment to traditions and institutions, and about stability and regularity."

After Harvard, Rehnquist attended Stanford Law School and graduated in 1952 at the top of an impressive class that included Sandra Day O'Connor. Based on his stellar academic record and genial personality, he won a clerkship with Supreme Court Justice Robert Jackson, who had been Franklin Roosevelt's attorney general and was committed to the principle of judicial deference to legislatures. During his clerkship, which began in 1952, Rehnquist wrote two highly controversial memos to Jackson that would provoke firestorms during his own confirmation hearings, in 1971 and 1986. In the memos Rehnquist seemed to urge Jackson to dissent in two historic civil-rights cases: Brown v. Board of Education, which would strike down school segregation, and Terry v. Adams, which would block efforts to exclude blacks from the pre-primary selection of Texas Democrats. Rehnquist claimed during the hearings that he was expressing these views at Jackson's request—an assertion disputed by Jackson's secretary. Several legal scholars believe that Rehnquist probably lied in denying that the views were his. He appears to have been the only Supreme Court clerk during the 1952 term who supported Plessy v. Ferguson—this at a time when the country as a whole was evenly split over desegregation. Whether he was speaking for himself or for Jackson, the central position that Rehnquist laid out in the memos—stressing the importance of judicial deference to the majority will—succinctly summarized what would become his judicial philosophy throughout his career.

In the Brown memo Rehnquist wrote that the Supreme Court was ideally suited to mediate disputes between the states and the federal government or between branches of the federal government. In contrast, he said, "where a legislature [is] dealing with its own citizens, it [is] not part of the judicial function to thwart public opinion except in extreme cases." Brown was not one of those cases, Rehnquist argued, because "in the long run it is the majority who will determine what the constitutional rights of the minority are." Similarly, in Terry v. Adams, Rehnquist insisted that "the Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time that the Court faced the fact that white people in the South don't like the colored people."

As jarring as these memos appear now, they are consistent with the views of many political scientists today, who argue that the Court, except in rare cases, neither can nor should thwart the will of a determined national majority, and that it invites political backlash when it attempts to do so. After Rehnquist joined the Court, he was asked whether justices are able to isolate themselves from the pressures of public opinion. "My answer was that we are not able to do so, and it would probably be unwise to try," he recalled. Rehnquist's highly evolved pragmatism convinced him that the courts cannot ignore broad cultural shifts. This, as much as anything, distinguished Rehnquist from the later generation of judicial conservatives.

After his Supreme Court clerkship ended, in 1953, Rehnquist moved to Phoenix, always in search of warm weather and conservative politics. He joined a small law firm and became active in local Republican circles, which had been revitalized under the newly elected Senator Barry Goldwater. A decade later Rehnquist would write speeches for Goldwater's ill-fated 1964 presidential campaign, which united disparate parts of the conservative movement while alienating the liberal Rockefeller wing of the Republican Party. His speeches for Goldwater singled out for attack the Warren Court's landmark decisions requiring school busing. But unlike the Dixiecrats, who fought to protect the power of local communities to enforce traditional values, Goldwater was no social conservative, as his later support for birth control and gay rights would attest; he was a populist who ardently opposed the excesses of federal, state, and local authority. Although Goldwater dutifully denounced the Warren Court's liberal obscenity and school-prayer decisions, he had little patience for his party's growing moralistic forces, which insisted that Christian virtue, rather than liberty, should be the Republicans' highest calling. The Republican Party of the 1960s, for all its associations with extremism at the time, seems in retrospect a less strident and more inclusive organization than the party of today.

In 1957, after the Warren Court issued a series of controversial decisions protecting the rights of suspected Communists, Rehnquist, then a young lawyer, wrote an article in U.S. News & World Report criticizing the law clerks he had known for their predominantly "'liberal' point of view," which he defined as "extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any government regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Earl Warren." Rehnquist also strongly disagreed with the Warren Court's prominent role in advancing the civil-rights movement. Testifying as a private citizen before the Phoenix City Council in 1964, he opposed a local public-accommodations law, charging later that it would summarily do away with "the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers." That same year Rehnquist had urged Goldwater to vote against the Civil Rights Act. During his 1971 confirmation hearings Rehnquist said that he had changed his mind about public-accommodations laws, acknowledging that he hadn't understood how strongly minorities felt about protecting their rights.

Every political movement has its moral blind spots, and civil rights was certainly a moral blind spot for Goldwater Republicanism. Rehnquist's insistence on deferring to the will of the people is hard to reconcile with his indifference to the then emerging majority of Americans who supported upholding the rights of black people. Goldwater and Rehnquist were never white supremacists, like Strom Thurmond, of South Carolina, and James Eastland, of Mississippi, but they seemed unconcerned that their devotion to states' rights could lead to enshrining racism. (Justice Byron White, a Kennedy Democrat of the same generation who shared Rehnquist's devotion to majority rule, did not make the same mistake.)

Both Goldwater and Rehnquist came belatedly to recognize the error of their ways. Rehnquist ultimately embraced the Warren Court's Brown decision, and after he joined the Court he made no attempt to dismantle the civil-rights revolution, as political opponents feared he would. His change of position reflected not only his reverence for the Court as an institution but also his sense that once a majority has spoken, the decision has a legal force that must be obeyed. Compare Rehnquist's attitude on these points with that of Clarence Thomas, who refuses to accept decisions that he thinks are wrong. Even Scalia has been critical of Thomas for this; as he recently told Thomas's biographer, Ken Foskett, Thomas "does not believe in stare decisis, period." "If a constitutional line of authority is wrong, he would say let's get it right," Scalia continued. "I wouldn't do that."

Rehnquist's first confirmation hearings focused on whether he had been truthful when he denied having challenged black and Hispanic voters as an Arizona poll watcher, and again in his account of one of his pro-segregation memos for Justice Jackson. Although Rehnquist was unanimously praised as an accomplished lawyer, he came under fire from a group of liberal Democrats on the Judiciary Committee, including Edward Kennedy, who charged that his record "reveals a dangerous hostility to the great principles of individual freedom under the Bill of Rights and equal justice for all people." Rehnquist was confirmed by a vote of 68 to 26.

As an associate justice, Rehnquist held fairly steadily to the views expressed in his Brown v. Board of Education memo of 1952. He almost invariably deferred to state legislatures on matters involving individual rights, and struck down federal laws only when he thought that Congress or the president had exceeded the bounds of constitutionally enumerated powers. The only cases in which Rehnquist was consistently willing to question federal power involved states' rights. During his first decade on the bench the most important states'-rights case for which Rehnquist wrote the majority opinion was National League of Cities v. Usery, in 1976; that case heralded the beginning of the so-called federalism revolution, which imposed meaningful limits on congressional power for the first time since the New Deal. In his opinion Rehnquist argued for limiting the federal government's ability to regulate the wages and hours of state and local government employees. The Tenth Amendment, he said, prevents Congress from acting in a way that "impairs the States' integrity or their ability to function effectively in a federal system." Although Rehnquist had mixed success maintaining majorities for this principle in the 1970s and 1980s, by the 1990s he had found at least four reliable allies—Scalia, Thomas, Kennedy, and O'Connor. But by not consistently deferring to Congress, Rehnquist failed to fulfill his oft-stated commitment to judicial restraint; under his leadership the Court indulged in an overconfident rhetoric of judicial supremacy and struck down thirty federal laws in one seven-year period—a higher rate than in any other Court in history.

In most cases, however, Rehnquist voted to uphold federal and state laws. When I re-read his youthful and often solitary dissents, which earned him the nickname "the Lone Ranger," it was hard not to be impressed by their energy, lack of pretense, and lack of anger. "The 1970s dissents were magnificent," says Jack Goldsmith, a constitutional scholar at Harvard Law School. "Rehnquist didn't have an overarching substantive theory of constitutional interpretation, but he was always respectful of the Court as an institution, even when he thought it was off the tracks."

Despite his conservative temperament, Rehnquist was never unduly preoccupied with following judicial precedents. In a biting critique published in The New Republic in 1982, Charles Krauthammer, the conservative essayist, and Owen Fiss, a liberal scholar at Yale Law School, charged that Rehnquist "repudiates precedents frequently and openly, and if that is impossible (because the precedent represents a tradition that neither the Court nor society is prepared to abandon), then he distorts them." Perhaps one answer to this criticism is that Rehnquist was always focused on moving the law in a fundamentally conservative direction while trying to circumvent any potential roadblocks along the way. His clerks, past and present, report that he would simply remove the reasoning from opinions if it got in the way of the result.

"He took each case as it came," recalls Michael K. Young, a former clerk who is now president of the University of Utah. "He thought that the Constitution was not designed to shape all of our behavior but to box in elected officials at the margins … He didn't see the sky falling, the way Scalia sometimes does, and if you read his dissents, they're often pragmatic. I've never been able to figure out Bush v. Gore, but in general he just deferred to the political process."

But even Rehnquist's highly controversial vote to stop the manual recount in Florida in the 2000 presidential election may be an expression of his pragmatism, for better or worse. In a speech to a Catholic service organization soon after the election, Rehnquist defended the participation of Supreme Court justices in deciding the presidential election of 1876 and seemed to be justifying Bush v. Gore in similarly practical terms. "There is a national crisis, and only you can avert it," he said. "It may be very hard to say no."

Rehnquist's moderate religious views (he is a Lutheran, although not a conspicuously observant one) may have contributed to his relative equanimity about abortion and prayer. "If I were a betting man, I would say personally Rehnquist thinks prayer in schools is pretty silly," Michael Young says. "You won't find him as hysterical about abortion and prayer as born-again Christians, who view these decisions as substantively essential to the moral fiber of the country. Rehnquist is willing to have it decided either way by the legislatures. Scalia couches it in a concern about democratic decisions, but that's not why Scalia cares."

Rehnquist reads broadly and avidly but, unlike Scalia, never comes off as a know-it-all and has never tried to lord his intelligence over his colleagues. While Scalia rails against popular culture, Rehnquist loves to rent movies—both new and old—and also goes to movie theaters by himself to see them. (His wife, Natalie, died in 1991 after a long struggle with ovarian cancer.) It is impossible to imagine him denouncing the Court for taking sides in the culture wars, as Scalia routinely does. "The Court must be living in another world," Scalia wrote in 1996. "Day by day, case by case, it is busy designing a Constitution for a country I do not recognize."

Temperament and religious sensibility may go a long way toward explaining differences of approach—between Rehnquist, on the one hand, and Scalia and Thomas, on the other. (It's worth noting that over the past ten years Rehnquist has voted more frequently with Kennedy and O'Connor than with Scalia and Thomas.) But another part of the explanation has to do with the reaction to Roe within the legal community itself. Because of Roe, a conservative judicial movement arose in the 1980s that was determined to curtail judicial discretion at all costs. Roe galvanized the religious right and unleashed far more conservative outrage against the Court than Earl Warren ever did. After he became president, Ronald Reagan, declaring that he wanted to avoid what he saw as Nixon's mistakes in picking moderate justices like Harry Blackmun, Warren Burger, and Lewis Powell, directed his Justice Department to find more-reliable ways of identifying doctrinaire strict constructionists. A turning point for this conservative judicial movement came in 1985, when Reagan's attorney general, Edwin Meese, delivered a speech to the American Bar Association denouncing the Burger Court for its "jurisprudence of idiosyncrasy." Meese asserted, "It has been and will continue to be the policy of this administration to press for a jurisprudence of Original Intention," which he defined as an "endeavor to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide for judgment."

Although Rehnquist's opinions referred intermittently to this doctrine of "originalism" (most notably in cases involving the separation of church and state), he invoked constitutional history when it was convenient and otherwise ignored it. From the moment that Scalia and Thomas joined the Court, in 1986 and 1991, respectively, they took a very different approach. Embracing the new orthodoxy with almost catechistic devotion, they insisted on the importance of construing each constitutional provision according to the presumed intentions of the Framers, no matter how disruptive or radical the consequences might be. For example, in 2003 Rehnquist wrote a majority opinion holding that Congress could allow state-government employees to sue their states for violating the Family and Medical Leave Act; Scalia and Thomas argued that this violated states' rights. "Scalia and Thomas embrace top-down theories of originalism and textualism as a principled way to control judicial discretion," Jack Goldsmith, of Harvard Law School, says. "Rehnquist is in a different, older, more pragmatic conservative tradition. He is less theoretical, often looks beyond text and history in discovering the relevant legal intentions, is more deferential to the political branches, and doesn't attempt to impose a general methodology across the board."

The gulf between Rehnquist and the Scalia-Thomas axis only widened this term and last. In U.S. v. Booker, decided in January, and Blakeley v. Washington, decided last spring, Scalia and Thomas joined three liberals on the Court in voting to strike down federal and state sentencing guidelines and in attempting to impose a sweeping new requirement that would have compelled juries to vote on each fact used to increase a sentence. Rehnquist, in contrast, sided with the more pragmatically minded justices—Breyer, O'Connor, and Kennedy—in upholding the sentencing guidelines, and avoided chaos by making the federal guidelines advisory rather than mandatory. Along the same lines, in an important terrorism case Rehnquist joined O'Connor in voting to allow the president to detain enemy combatants, but with a modest degree of judicial oversight. Meanwhile, Scalia and Thomas, in dissent, took rigid (and, as it happened, diametrically opposed) positions: Scalia argued that the president had no power to detain without congressional authorization, whereas Thomas contended that the president could do whatever he liked, without judicial or congressional oversight. Rehnquist will always take half a loaf over no loaf at all, and as chief justice he has proved far more willing than most of his colleagues to support, for the good of the Court, opinions with which he disagrees.

The younger generation of justices, both conservative and liberal, have a dramatically different attitude toward questions of personal exposure. Clarence Thomas, for example, is far more accessible and emotionally revealing; he frequently gives speeches to groups of African-American students, in which he talks, in raw and intimate detail, about his childhood, his sense of inadequacy, and his abiding anger toward the civil-rights establishment. It is impossible to imagine the intensely private Rehnquist selling a memoir for $1.5 million, as Thomas recently did. But we are living in an age of celebrity that is ravenous for personal disclosure, and pressures on the justices to accede to these demands will only grow more insistent. It may not be long before we see them turning up on the morning talk shows, as O'Connor has done, to promote themselves and discuss their feelings.

"I've always admired Robert E. Lee for his refusal to write his memoirs," Rehnquist told Brian Lamb. "If memoirs are going to be interesting, if they're not going to be saccharine, you have to say some people didn't measure up and others did … I think of a memoir as saying, 'When I came on the Court there were eight other justices and three or four were quite smart, but a couple of the others were creepy.' I don't want to get into that."

If the next chief justice turns out to be, as many Court watchers fear, less of a pragmatist and more of a rigid ideologue than Rehnquist, he or she may well end up dividing the Court that Rehnquist unified, and squandering its carefully constructed reserves of public trust. In that case Rehnquist's faith in majority rule, and his ability to resist the public's insistence that officeholders bare themselves in the spotlight, may seem like the scruples of a forgotten era. He may be the last of the old-fashioned judicial conservatives, who already look far more judicious than the conservatives who have arisen in their wake. And liberals may find themselves missing Rehnquist more than they could ever have imagined.