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FIRST-PERSON: The Rehnquist Court and American constitutionalism

LOUISVILLE, Ky. (BP)–The death of Chief Justice William H. Rehnquist brings to a close one of the most tumultuous and historic eras in the history of the U.S. Supreme Court. Chief Justice Rehnquist died Sept. 3 at the age of 80, after an almost year-long fight against thyroid cancer. His total term on the bench, including 14 years as an associate justice, ranks him among the longest-serving jurists ever to serve on the nation’s highest court.

William Hubbs Rehnquist was born into a stable midwestern family of Swedish background on Oct. 1, 1924. His parents were conservatives who instilled a strong work ethic and sense of patriotism in their son. After attending Kenyon College, Rehnquist joined the Army Air Corps in 1942 and served as a weather observer in North Africa during the war. That experience sparked a life-long interest in weather. Later in life, Rehnquist was known to be a devotee of “The Weather Channel” on television, and he was fascinated by arcane facts concerning weather phenomena.

After his discharge from the Army Air Corps, Rehnquist attended Stanford University, from which he received both baccalaureate and master’s degrees. He then earned a master’s degree in political science at Harvard University before entering the Stanford Law School. At Stanford, he graduated first in his law class and earned a Supreme Court clerkship with Justice Robert H. Jackson.

In his 1987 book, “The Supreme Court,” Rehnquist told of arriving in Washington in order to begin his clerkship on Feb. 1, 1952. “I was a twenty-seven-year-old bachelor, somewhat late in completing my education because of three year’s service in the military during World War II,” he remembered. “By going through two summer sessions, I had managed to finish Stanford Law School in December 1951. The clerkship with Justice Jackson would be my first job as an honest-to-goodness graduate lawyer.”

From the beginning, Rehnquist was marked by a sense of awe concerning the nation’s high court. “I climbed the seemingly endless steps leading up to the front entrance of the building, opened the large door, and walked through a vestibule into the Great Hall, and here I again paused to feast my eyes upon the sight. The ceiling looked to be at least twenty feet high, and on each side were double rows of marbled columns. Arrayed along each side of the hall in niches designed for that purpose were busts of the eleven former Chief Justices of the Court, from John Jay to Harlan F. Stone.”

Looking back on his first arrival at the Supreme Court building, Rehnquist was to remember a remark made by the late Chief Justice Stone, who described entering the Court’s chambers as “a beetle entering the Temple of Karnak.”

Rehnquist was appointed as an associate justice of the Supreme Court in 1971 when President Nixon nominated him for the post. Nixon had been impressed with Rehnquist, then a young attorney in the Justice Department. Nevertheless, Nixon considered the young attorney something of an eccentric, once complaining about his clothes and sideburns. Nixon even confused Rehnquist’s name, remembering him as “Renchberg.” Nevertheless, when it really mattered Nixon remembered Rehnquist’s brilliance.

Associate Justice Rehnquist arrived at the court during its heyday of liberal dominance. Chief Justice Warren Burger, appointed by Nixon just two years earlier, had made little progress in reversing the procedural liberalism adopted under the leadership of Chief Justice Earl Warren. For most of his early years, Rehnquist was in a very small minority, and he often served as the lone dissenter in the court’s decisions.

That began to change in 1986, when President Reagan nominated Rehnquist as chief justice. By the time of his death, Rehnquist had seen the court through significant transition, with seven of the nine sitting Justices appointed by Republican presidents. Nevertheless, he still found himself in a conservative minority in some of the court’s most significant cases.

In reality, Chief Justice Rehnquist was conservative in character, temperament and judicial philosophy. He was a strong proponent of the government’s right to maintain law and order, and he was opposed to the idea that the federal courts should try to run prisons and school systems — expansions of judicial power that had taken place under the Warren Court.

Rehnquist opposed the liberal conception of the Constitution as a “living” document. In a 1976 article published in The University of Texas Law Review, Rehnquist wrote: “There is no conceivable way that I can logically demonstrate to you that the judgments of my conscience are superior to the judgments of your conscience, and vice versa. Many of us necessarily feel strongly and deeply about our own moral judgments, but they remain only personal moral judgments until in some way given the sanction of law.” In other words, Rehnquist trusted the democratic process and believed that the most significant questions of public policy should be decided by citizens and codified through the legislative process. Rehnquist did not believe that judges should arrogate such powers to themselves.

As Eric R. Claeys, assistant professor of law at St. Louis University, has explained, “it was not until the Warren Court that the Supreme Court injected living-constitution theory into constitutional interpretation. The Court did so to make the Due Process and Equal Protection clauses into transmitters for evolving conceptions of liberty. Living-constitution theory gave the federal courts the legal doctrine they needed to insulate the sexual and criminal rights revolutions of the 1960s from legislative regulation.” Claeys, who once served as a law clerk for Chief Justice Rehnquist, observed that the New Deal lawyers avoided talk of a “living constitution,” even as they launched the revolution that gave birth to the concept. By the time William Rehnquist joined the Court, the idea had become pervasive.

Rehnquist’s understanding of the Constitution and his opposition to the invention of new “rights” became clear in his dissent in the 1973 case, Roe v. Wade. In that infamous case, the Court’s majority simply declared that a woman has an absolute right to an abortion in the first trimester of her pregnancy, and at least some right to an abortion in the next two trimesters. The majority’s view, as represented in the opinion offered by Justice Harry Blackmun, declared that this right was rooted in a “right to privacy” supposedly found in the Fourteenth Amendment to the Constitution.

Rehnquist dismissed this claim. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,” Rehnquist observed. Following his judicial philosophy and committed to the actual text of the Constitution, Rehnquist believed that the Constitution guaranteed no such “right” to an abortion. Furthermore, he rejected the majority’s argument that such a right would fall within the nation’s heritage of expanded liberty.

“The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the ‘right’ to an abortion is not so universally accepted as the appellant would have us believe.”

Rehnquist’s wife of nearly 40 years, Natalie Rehnquist, died in 1991, also after a battle with cancer. The chief justice was known to have lived many years suffering from extreme back pain, and he was often observed walking around the Supreme Court building, exercising his back. An intensely private man, the chief justice died in the company of his children and extended family. Even his colleagues on the court were surprised by the news that he had died.

President George W. Bush acted quickly to nominate a successor, announcing the nomination of Judge John Roberts two days after the chief justice’s death. Roberts, a former clerk to Chief Justice Rehnquist, was known to have the chief’s favor.

After decades of judicial activism, President George W. Bush now faces the opportunity of shaping the Court for years to come. In so doing, he should be encouraged by Chief Justice Rehnquist, who wrote, “The fact is that chief executives who have been sensible of the broad powers they possessed, and who have been willing to exercise those powers, have all but invariably tried to have some influence on the philosophy of the Court through their appointments to that body.”

Chief Justice William H. Rehnquist was a private man who gave decades of devoted service to his country. He was a judicial conservative who leaves a significant imprint on the nation’s highest court. But history is certain to record that there is yet more work to be done, as the federal courts must be returned to their proper role and authority.
This column was adapted from Mohler’s weblog at www.albertmohler.com. Mohler is president of Southern Baptist Theological Seminary in Louisville, Ky. For more articles and resources by Mohler, and for information on “The Albert Mohler Program,” a daily national radio program broadcast on the Salem Radio Network, visit www.albertmohler.com.

    About the Author

  • R. Albert Mohler Jr.