Rehnquist death leaves second vacancy
William H. Rehnquist, 80, a Milwaukee paper salesman's son who rose to chief justice of the United States and strove to reshape laws of the land in his conservative Federalist image, died at his Virginia home late Saturday after more than three decades on the nation's highest court–the last 19 as its top judge. He had been diagnosed with thyroid cancer last October and though he completed the court term that ended in June, his frail health declined precipitously over the past week.
President Bush, in a televised statement from the White House Sunday morning, called the nation's 16th chief justice a "man of character" respected for his powerful intellect. "He honored America with a lifetime of service and America will honor his memory," said Bush, adding that he was moved when the elderly chief justice, clearly feeling the effects of his cancer treatments, swore in the president at his January inauguration.
Rehnquist's death leaves a second high court vacancy and comes just days before the U.S. Senate is expected to begin confirmation hearings on John Roberts, Bush's nominee to fill the vacancy left by the July resignation of Justice Sandra Day O'Connor, 75, after 24 years on the court. And it opens a Pandora's box of question: Will the Roberts hearings, set to begin Tuesday, be delayed? Will O'Connor, who said she'd serve until her replacement is named, be asked to remain on the court until both vacancies are filled? Will the president, who has said he wants Roberts confirmed before the October 3 start of the court's new term, consider re-nominating the D.C. Circuit Court judge for the chief justice slot? Or will he turn to either Justice Antonin Scalia or Justice Clarence Thomas to lead the court, subject to Senate confirmation?
In his comments Sunday morning, Bush indicated he isn't likely to delay the hearings on Roberts, particularly in light of a second vacancy. "It will serve the best interest of the nation to fill those vacancies promptly," he said, adding that he would pick a replacement for Rehnquist "in a timely manner."
As tributes to the late chief justice poured in, strategists began speculating who Bush may nominate for the Rehnquist vacancy, and how his current political problems–from sharp criticism over the administration's handling of the Katrina hurricane disaster, to skyrocketing gas prices and plummeting support for the president and his policy in increasingly violent Iraq–may influence that decision.
The president could please the religious right with an anti-abortion nominee along the lines of federal appeals court Judges Michael O'Connell or Edith H. Jones. And he could also fulfill his desire to nominate the first Hispanic to the court–potentially Attorney General Alberto Gonzales, the president's close friend and a more moderate conservative who has been attacked by the right for being somewhat flexible on the issues of abortion and affirmative action.
At his death, Rehnquist fittingly left as two of his last opinions support for the display of the Ten Commandments on the grounds of public property and inside courthouses. Rehnquist long argued for an end to what he called "hostility" toward religion in public life. But he also found himself more frequently in the minority on such issues of social policy, often at odds with the more moderate O'Connor.
In decisions released at the end of the court's term last month, the chief justice was in the majority voting to allow the Christian symbol on public property, a decision Rehnquist himself read. But a divided court also ruled 5-4, with the chief justice dissenting, that displays of the commandments may not be installed inside courthouses. O'Connor was on the opposite side in both decisions, opposing the display in both venues.
Rehnquist's death brings to a close an era during which he presided over decisions that moved the court squarely into the conservative realm. But he had seen his influence wane in recent years as centrist Republican-appointed justices, most notably O'Connor, seized both the middle ground and much of the control in a divided court.
Still, there's no doubt that Rehnquist's influence was profound. Under his leadership, the court shifted power to the states by overturning more than 30 laws passed by Congress. It also relaxed judicial oversight of the death penalty, gave property owners more protection from environmental regulations, eased church and state boundaries, and limited punitive damage awards. And in 2000, in its most controversial decision, the Rehnquist court made George W. Bush president. "There is not an area of the law where he hasn't had an impact," says Erwin Chemerinsky, a Duke University law professor.
Rehnquist also presided over the history-making 1999 Senate impeachment trial of President Bill Clinton, showing up in an eyebrow-raising black robe embellished with four golden bands on each arm–his nod to the Lord Chancellor's costume from a favorite Gilbert and Sullivan production.
The seeds of the Rehnquist years were planted in 1971 during an inauspicious meeting with President Richard Nixon. Known for his sartorial flourishes even then, Rehnquist, an assistant U.S. attorney general, wore a pink shirt and psychedelic tie to the meeting, accented by his then-trademark muttonchop sideburns, former Rehnquist clerk Richard Garnett, now a Notre Dame University law professor, wrote in a recent tribute to his former boss. After the meeting, Garnett says, Nixon pronounced that "Renchberg" looked like a "clown."
Despite the wardrobe malfunction, Nixon turned to the 47-year-old Rehnquist to help carry out a campaign pledge to remake the liberal Warren Court that had consolidated federal power. On January 7, 1972, Rehnquist joined the court and set about attempting to undo much of the previous court's work, which included the expansion of civil rights protections and the Miranda decision guaranteeing that persons arrested be informed of their right to counsel.
But during Rehnquist's first 14 years on the court as an associate justice, the conservative counter-revolution never got off the ground. The most conservative justice on the court, Rehnquist was in the minority so often he was tagged with the nickname "Lone Ranger" for voicing a view of limited federal power that many at the time considered out of touch. Often outvoted 8-1 he was joined by one justice in opposing Roe v Wade, which in 1973 established abortion rights. He also argued for prayer in school and limits to school desegregation requirements. His dissenting ideas, however, would prove influential in later opinions.
Liberals protested in 1986 when President Ronald Reagan nominated Rehnquist to replace Warren Burger as chief justice. But he was confirmed and as more conservative judges joined the high court–including Scalia, a Reagan appointee–Rehnquist became part of a majority that shared his views on issues such as expanding states' rights, allowing more government aid to religious schools and restricting habeas corpus, the procedure to determine the legality of an individual's custody. Decisions on habeas corpus during his tenure effectively limited the appeals of prisoners on death row and dramatically accelerated executions.
"He is the architect of some important work," says A.E. Dick Howard, University of Virginia law professor.
A Lutheran of Swedish descent, Rehnquist's conservative values can be traced to his Republican upbringing in a suburb of Milwaukee, where his family's political heroes were GOP stalwarts Alf Landon, Wendell Wilkie and Herbert Hoover. In an oft-told tale, a grade-school teacher reportedly asked young Rehnquist what he wanted to do when he grew up, and he is said to have answered: "I'm going to change the government."
His path toward that goal took him to the Army Air Corps during World War II, and then to college on the GI Bill. He earned bachelor's and master's degrees in political science at Stanford University, received a second master's degree in government from Harvard, and in 1952 graduated first in his class at Stanford Law School. His classmate, future Justice O'Connor, ranked third. Rehnquist clerked for Justice Robert Jackson for a year, and after marrying his college sweetheart and looking for a warm, dry place to live, accepted a job with a law firm in Phoenix.
In Arizona he became a GOP party official and outspoken opponent of initiatives such as busing to achieve school integration. He campaigned twice for Nixon, in 1960 and 1968, and for Barry Goldwater in 1964. He was hired to work in the White House Office of Legal Counsel after Nixon was elected, and ascended to the high court with no previous judicial experience.
Rehnquist's philosophy of limited federal government power and greater states' rights grew from his reading of history, which led him to conclude that the nation's founders envisioned a balance of power between federal and state goverments. "He certainly recognized the need for a strong national government and the events in our history where such a strong government has served us well," says James Duff, a lawyer who was Rehnquist's administrative assistant from 1996 to 2000. "But he also recognized that the national powers granted in the Constitution are not unlimited."
In 1976, Rehnquist wrote the majority opinion in an important early case, striking down the federal statute permitting Congress to regulate minimum wage and overtime pay of state employees. "We have repeatedly recognized," he wrote, "that there are attributes of sovereignty attaching to every state government which may not be impaired by Congress . . . "
Critics of Rehnquist and the court's decision in 2000 to intervene in the presidential voting dispute in Florida harkened back to that opinion in arguing that the chief and other conservative justices improperly politicized the court by injecting themselves into the state vote-counting imbroglio, ultimately deciding the outcome of a presidential election.
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.
Since October, Rehnquist aggressively battled his cancer, undergoing a tracheotomy as well as chemotherapy and radiation. He continued to work from home, conferring with fellow justices and writing opinions. He returned to the bench, physically diminished but his mental powers uncompromised, in March.
While formal and often stern on the bench, Rehnquist's demeanor off the bench stood in stark contrast, says his former law clerk Charles "Chuck" Cooper, now a Washington, D.C., lawyer. "People could get the wrong impression that he is stiff and formal and abrupt. That's anything but the case."
He was a man of broad interests, dabbling in oil painting, meteorology, choral singing and theater. Rehnquist, an amateur historian, wrote four books–including "Centennial Crisis: The Disputed Election of 1876," about the nation's first contested presidential election. He played tennis and played bridge and poker with a regular group. Former clerks said he loved to have friendly office bets on bowl games. "He'd bet you on which way the car in front of you was going to turn," Cooper said.
Garnett says his former boss, who had a summer home in northern Vermont, loved the Green Bay Packers, March Madness and Miller Lite. Rehnquist once missed a State of the Union address because his art class was meeting.
His unpretentiousness and personal affability was legendary among his former clerks and Supreme Court workers. University of Virginia Law School Dean John Jeffries recalls Rehnquist attending a dinner for the school's 175th anniversary in 2001–and wearing a nametag.
Some people may not have liked Rehnquist's positions, court watchers say, but it's difficult to find someone who didn't like the man himself. "We are in a time when our society and our courts are deeply divided on ideological issues," says Chemerinsky, the Duke law professor. "I think Bill Rehnquist will be remembered as a truly good, decent man who presided over the court in a fair and gentle manner during a divisive time. He will be missed for that."
A widower, Rehnquist is survived by three children and eight grandchildren.