Chief Justice William Rehnquist was an institution himself. Since his elevation to Chief Justice by President Ronald Reagan in 1986, he presided over an era of struggles over the Supreme Court’s faithfulness to the text and principles of the Constitution.
The chief instilled a high tone of collegiality and respect at the Court, even in this period when the justices were deeply and bitterly divided over fundamental issues. My former boss, Justice Clarence Thomas, used to remark how wonderful it was that the justices could engage in sharp constitutional debates while still maintaining civility and real friendship, largely because the chief’s example reminded them that they were part of an institution of American government much greater than themselves. Chief Justice Rehnquist’s ability to set this tone for the deeply divided Court is even more remarkable when contrasted with the incivility that has taken hold in another deeply divided institution across the street–the U.S. Senate.
Like the president who made him chief, he was a great American and a great patriot. He was known for his devotion to the Constitution and the institution of the Supreme Court. He authored several insightful and readable books about the history, cases, and justices of the Court, including one that began with his own experience in 1952 driving a Studebaker with no heater from Milwaukee in a January snowstorm to report for duty as a law clerk to then-Justice Jackson.
Chief Justice Rehnquist led the Court back toward a proper respect for the role of the states in our federal system, in the Court’s decisions on the 11th Amendment, the Commerce Clause, and habeas corpus. He also helped steer the Court toward a more proper understanding of the Establishment Clause, which was included in the Constitution to protect religion from congressional action–not to remove religion from the public square. In 2002, for example, this important restoration of the Constitution led a majority on the Court to uphold Cleveland’s school-voucher program, including vouchers for religious schools, thus providing increased educational opportunities for low-income children.
Following a period in which the Court strayed from the Constitution during the Warren and Burger eras, Chief Justice Rehnquist led the Court to greater faithfulness to the Constitution in the areas of criminal procedure and so-called “unenumerated rights” under the substantive due process and equal protection doctrines.
Of course, the chief was only one of nine votes on the Court, and he dissented from many 5-4 decisions on contentious matters of constitutional law. Majorities of the Court held that local governments can seize private homes and turn them over to developers, that a courthouse must take down the Ten Commandments from its walls, and that foreign and international law are a proper basis to decide cases, rather than our American Constitution. The Court also held that flag burning and “virtual” online child pornography are protected free speech under the First Amendment, upheld discriminatory racial preferences in affirmative-action programs, and struck down even mild restrictions on late-term abortions.
The chief also bore a great deal of physical suffering with exemplary grace. Fittingly, he died “with his boots on”–on the eve of a new term on the Court. Big boots to fill.
–Wendy E. Long is legal counsel to the Judicial Confirmation Network.