EDITOR’S NOTE: This editorial appeared in the May 23, 2005, issue of National Review.
With the retirement of an ailing Chief Justice William Rehnquist expected soon, the mind of the Bush administration has been turning to his replacement. The White House has been getting advice, not all of it solicited. Liberal legal commentator Jeffrey Rosen wrote in The Atlantic Monthly that Rehnquist had been a very “impressive” and “successful” chief justice because of his lack of ideology, and implied that Bush should find someone similar.
We cannot agree. Rosen counts Rehnquist as a success by defining success too narrowly, as a matter of preserving the Court’s comity and reputation. Rehnquist was much less successful in getting the Court to embrace a principled constitutionalism in exercising the power of judicial review. The Rehnquist Court has seen modest improvements on church and state, on criminal procedure, and, more debatably, on federalism. In general, however, it has not achieved the return to constitutional principle that conservatives had hoped for.
This failure was only partly his fault. His effectiveness in steering the Court toward constitutional sanity, especially when it comes to respecting the constitutional limits of its own power, has been damaged by his inability to articulate and defend consistent legal principles–an inability that flows from his not really holding such principles, as opposed to generally favoring conservative results. There is a reason that liberals inveigh against Justices Antonin Scalia and Clarence Thomas and leave Rehnquist alone.
But there is also a limit to what any chief justice can do. The lineup of justices on the Court ultimately matters more than who is managing it. If Justice Sandra Day O’Connor had been chief justice over the last 30 years and Rehnquist an associate justice, it is hard to believe that the Court’s jurisprudence would look markedly different.
It follows that conservatives should care far more about the identity of any new justice than about who will be chief. To elevate Justice Scalia or Thomas to chief would not compensate for the addition of another justice in the mold of Anthony Kennedy or O’Connor. Conservative resources would be better spent fighting for a new conservative justice than fighting for the elevation of one of the current ones. The administration should therefore look for a chief justice outside the current Court. It also follows that if it does, it should look for most of the same things it should look for in any justice: above all, a respect for the text of the Constitution as it was understood by the ratifying public. The would-be justice should also respect the Court’s precedents–but when those precedents are seriously out of line with the constitutional text, he should be willing to overrule them. The presence of that willingness is especially important in an era where the Court has taken on so many responsibilities and faces few effective checks. The Court’s errors have become more important, and if the Court will not correct them itself it is unlikely anyone else will.
This group of justices has been together for a long time now. It has been eleven years since the last new justice was confirmed. The Court could do with an infusion of intellectual energy. Someone with heft, who already commands the respect of the other justices, would seem to be ideal, if any such jurist can be found.