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Wednesday, June 14, 2006 

Judging Rehnquist

The Supreme Court Bar will meet on Thursday in order to honor the work of late Chief Justice William Rehnquist. Tony Mauro has the story...
But even as Rehnquist's admirers prepare to praise him, his legacy is unsettled. After a respectful mourning period, his opinions and those of the Rehnquist Court are taking a beating, with even Republicans and conservative academics critiquing his record in ways that could pressure his successor and former law clerk, John Roberts Jr., to complete what he left undone.
I'm not shocked that liberals would be critical of the Rehnquist Court. I understand the frustration from conservatives too. But let's look at things realistically. The Rehnquist Court was miles better than the Warren and Burger Courts. Rehnquist's Court also had a very slim conservative majority, so we were pretty lucky with what we got from them. I also think that it's possible that Chief Justice Roberts will continue the work of his former boss. As a Supreme Court litigator, Roberts knows how frustrating these big holes in Constitutional law can be. I think that he's looking to really get some work done and bring a little clarity to the legal situation.

Mauro also has this interesting information...
Meanwhile, new information has emerged about Rehnquist: His long-private 1948 master's thesis has been published, a former aide has confirmed that Rehnquist once planned to retire in 1991, and the originator of his early nickname, the "Lone Dissenter," has stepped forward.
Wow, imagine if that happened. Who would George HW Bush have named Chief? The very thought both intrigues and scares the living crap out of me. Later in the article, it states that Rehnquist had no confidence that Bush could win re-election. He called that one.

Mauro has quotes from notable people like Judge J. Harvie Wilkinson, Godfather of Property Rights Richard Epstein, Professor Douglas Kmiec, and others. I'm sure that we will be reading law review articles and hearing speeches about the Rehnquist Court for many years to come. I think Prof. Kmiec has the situation pegged nicely with this quote: "He could have spent his life as a lone ranger, or he could bring Tonto along with him, as he did." Rehnquist spent his first years on the Court frequently as the lone dissenter in many cases. Unfortunately, one vote dissents do not make the law. Rehnquist realized that he sometimes had to temper his views to get those four other votes he needed. That's the reality of the Court; the magic number is five. If he didn't get that number, Rehnquist would end up with Justice Stevens deciding what the law is, and that would be bad.

Re the article, I think Doug Kmiec has it about right. It is pointless to carp about what Rehnquist could have or should have done (and I'm disappointed to see that Wilkinson goes down that road); he did the best that could be done with the Court that he had. It is like complaining that Scalia has not done more to stop the use of legislative history - at a certain point, the powers of pursuasion run out, and it becomes a question of the brute-force of new appointments. We didn't send Scalia and Rehnquist reinforcements; ergo, there was only so much they can do.

If "conservatives [feel] he did not travel far enough on the right one, allowing major doctrinal shifts on federalism, property rights, and other areas to fizzle or fade," perhaps they should take a good, long look in the mirror, and ask themselves if they did everything they could do to stop Perot in 1992, and thus, to prevent the nomination of two justices by Clinton, one of whom epitomizes "split the difference" jurisprudence. Rehnquist did not have a court full of Scalias, a court full of Rehnquists; he did not even have a court full of Kennedys. You need five votes to accomplish anything; Rehnquist's detractors seem to be suffering from a temporary failure to remember the very practical limitation of depending on O'Connor and Kennedy to get more-or-less anything done. I thus concur with Earl Maltz: "Rehnquist didn't get everything he wanted, but he did not have the votes." The defeat of Bob Bork, and the failure to re-elect George H.W. Bush are what went wrong, and neither of these things were within Rehnquist's power to change.

I am apparently quite a softie. I think the story about wanting to reture and then the death of his wife just when that became possible is heartbreaking. I'm glad he stayed on, but I think the reason he did is very sad.

We are in total agreement on this. Rehnquist was one man. He didn't hold five votes. He couldn't threaten to beat up the other Justices if they didn't vote his way. He won some important battles on the Court. Hopefully, he laid the groundwork for the Roberts Court to extend the work he started.

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