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Whatever Happened to the Lone Ranger?
Chief Justice William Rehnquist, once a
conservative firebrand, has become the Invisible Man. In the end, one of his
most impressive legacies may be his sheer longevity
When Richard Nixon appointed Rehnquist to the court in 1971 at the age of 47, he was a young firebrand, with bushy sideburns, loud clothes, a cocksure manner, and fiercely conservative views. He quickly became a bomb-thrower on the court, launching provocative dissents and staking out solitary terrain on the court’s right wing. His clerks in those years famously gave him a “Lone Ranger” doll in recognition of his role on the court.
When Ronald Reagan appointed Rehnquist to be Chief Justice in 1986, many predicted that the “Rehnquist Court” would lurch to the right after the zig-zag years of the Burger Court. But Rehnquist, now 80, frequently has lost control of the court that bears his name, and his voice has been strangely muted. The Lone Ranger has become the Invisible Man.
On hot button issues, Rehnquist often has been on the losing side. Despite Rehnquist’s best efforts, Justices Sandra Day O’Connor and Anthony Kennedy frequently have joined the quartet of John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer in major cases involving Constitutional rights. Although Rehnquist was one of two original dissenters in the landmark abortion rights case of Roe v. Wade in 1973, for example, he could not swing the court when it reaffirmed Roe’s core holding in 1992. And so it went, as Rehnquist was defeated on decisions ranging from the permissibility of affirmative action to the impermissibility of criminal penalties for gay sex between consenting adults. In an action symbolic of his muffled voice as chief justice, in the recent historic decision giving Guantanamo detainees the right to a day in court, Rehnquist silently joined Justice Antonin Scalia’s dissent.
The picture is not all one-sided. Rehnquist has had some incremental successes. Although the Rehnquist Court reaffirmed the protection of abortion rights and the permissibility of affirmative action, it imposed greater limits on both. In criminal procedure, the court frequently heeded Rehnquist’s calls for restrictions on prisoners’ rights to file habeas corpus petitions and appeals, including in death penalty cases. Rehnquist also succeeded in lowering the wall between church and state a bit, and wrote the court’s seminal 5-4 opinion upholding Cleveland’s school voucher program. But the landmark decisions of the Warren Court and the Burger Court that have generated harsh criticism from the right—such as the decision to ban school prayer—remain as important Supreme Court precedents. Rehnquist’s most notable success came in federalism—limiting federal power and protecting states’ rights. Rehnquist led the court in striking down high-profile congressional laws such as provisions of the Violence Against Women Act and the Gun-Free School Zones Act. Dusting off doctrines that had not been used since the 1930’s, Rehnquist announced that Congress had not shown that the issues were of sufficient national importance to justify congressional action. Rehnquist similarly led the court in a series of 5-4 decisions giving legal immunity to states for lawsuits by individuals for money damages under federal laws, including civil rights laws.
In all, the Rehnquist Court struck down almost three dozen congressional laws, the highest rate in Supreme Court history. Critics charged that Rehnquist and his allies, despite the frequent invocation of “judicial restraint” by their supporters, embraced unprecedented judicial activism in rejecting so many laws passed by the people’s elected representatives. Rehnquist also had the capacity to surprise. A critic of the Warren Court’s expansion of criminal rights, he nevertheless wrote the court’s opinion striking down a federal law that would have overturned the 1966 Miranda decision in federal cases. (The Miranda ruling requires law enforcement officers to inform suspects that their rights include the right to remain silent and to consult an attorney before answering any questions.)
And, although he is not known as a civil rights champion, Rehnquist wrote the court’s opinion recognizing sex discrimination claims for a “hostile environment” of sexual harassment.
Rehnquist’s time as Chief Justice was marked by two unusual events. He became only the second Chief Justice to preside at the Senate trial of an impeached president. And he served as chief on the only Supreme Court case to decide a presidential election. During the impeachment trial, Rehnquist rose to the occasion and presided calmly and fairly at a turbulent moment in the nation’s history. But the record on the court’s 5-4 decision ensuring the election of George W. Bush remains more controversial. Opinions rage about the wisdom and propriety of the court’s actions. But even many court defenders acknowledge that the court’s unsigned decision resolving the matter in Bush’s favor, which Rehnquist joined, is of inferior quality. Rehnquist’s additional separate opinion garnered the votes of only Scalia and Clarence Thomas.
In the end, one of Rehnquist’s most impressive legacies may be his sheer longevity. If he leaves the court now, he will leave a record of almost 33 years of service—the eighth longest on the court’s all-time list and only a few years behind the 36-year record of William O. Douglas. And with 18 years as the nation’s sixteenth Chief Justice, Rehnquist served as chief longer than all except three chiefs, and the longest period for any chief in almost a century.
It is a great
irony that Rehnquist’s tenure may be best known for his length of service and
for the number of laws his court invalidated. Few would have expected that
the young conservative dynamo would be known more for his time on the court
than for what he accomplished. And few would have expected that the area in
which Rehnquist the chief would have the greatest impact would be the judicial
repudiation of laws enacted by Congress and signed by the president.