Rehnquist death leaves second vacancy
In pushing his federalist agenda, the Rehnquist court in 1995 ruled that Congress had no power to restrict gun possession near schools, and in 2000 handed down a decision saying women could not sue their attackers because Congress exceeded its authority in passing the federal Violence Against Women Act. "His real legacy is this federalism revolution that first and foremost promises to substantially trim back Congress' legislative power," says David Garrow, an Emory University law professor and Supreme Court historian.
But legal experts wondered how far Rehnquist would go on federalism cases, and in 2003 he made clear that there are limits: In a majority opinion, he and the court gave employees the right to sue for monetary damages in federal court if denied rights guaranteed under the federal Family and Medical Leave Act, which grants employees up to 12 weeks of unpaid leave for health reasons or to care for newborns or ailing relatives.
Rehnquist, whose court heard far fewer cases that his predecessor's–about 80 a year compared to twice that number under Berger – was less influential on decisions involving social issues. O'Connor and Justice Anthony Kennedy, both nominated by Republican presidents, claimed the court's middle ground and controlled decisions on cases involving such issues and often were at odds with Rehnquist.
At the end of Rehnquist's lengthy service, the right to abortion–reaffirmed by a 5-4 vote by the court in 1992–remains intact, as does affirmative action, though the scope of the latter has been reduced. Flag burning has not been banned, and prayer in school has not been endorsed. "He has been in the majority on virtually none of those cases," says Garrow.
In writing a dissent to the court's continued opposition to prayer in school, reaffirmed in a 2000 decision, Rehnquist said the court shows "hostility to all things religious in public life," though his court ruled that religious schools are eligible for school vouchers. In 1989, when the court affirmed that burning the U.S. flag is a protected form of free speech, Rehnquist in his dissent wrote, somewhat tartly: "The government may conscript men into the Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight."
The court in 2003 also expanded the privacy rights of gay Americans by striking down a Texas law that criminalized sodomy among same-sex couples. Rehnquist, Scalia and Justice Clarence Thomas dissented. The court, as constituted through the end of its last term, has struck down restrictions on late-term abortions and continued by a 6-3 majority to back a woman's right to abortion, the most divisive social issue of Rehnquist's entire term on the bench. Rehnquist, Scalia and Thomas remain opposed. The court balance on the issue of abortion will surely change with two Bush appointments looming. But a 5-4 majority favoring the right to abortion will likely remain intact.
"If the federalism revolution is overturned 15 years down the road, then the real long-term legacy of the Rehnquist court will be legal abortion, affirmative action and dramatically increased gay rights," Garrow says. "The great irony is that the Rehnquist court's legacy will be a relatively liberal one–and he will have been in the minority on most of those decisions." Though the demise of federalism seems unlikely now that Bush has two court vacancies to fill.
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