Politics & Policy

Justice Restraint

Law and the rules of order.

Americans who cherish constitutional freedom and self-government will miss the presence of Chief Justice William Rehnquist on the U.S. Supreme Court. Appointed in 1971, he has served 34 years on the Court, the last 19 as chief justice. Many of his decisions and opinions have forcefully advocated the limits of judicial power and the overriding right of the people in this democratic republic to govern themselves through their elected representatives.

The Constitution leaves most political issues to be decided by the people through the democratic process. Chief Justice William Rehnquist sought to preserve the right of the people to decide political and social issues, even the most controversial ones.

He was the last surviving dissenter from the Supreme Court’s 1973 decision in Roe v. Wade. He understood that Roe was a usurpation of the people’s authority to decide the abortion issue through their representatives at the state level, labeling the decision “judicial legislation.”

And he had the wisdom and foresight to see the mess that the Court has created by its abortion decisions, accurately predicting that they “will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.”

With controversial political issues like abortion, Rehnquist understood that the goal of judicial decision making “is surely not to remove inexorably ‘politically divisive’ issues from the ambit of the legislative process, whereby the people through their elected representatives deal with matters of concern to them. The goal of constitutional adjudication is to hold true the balance between that which the Constitution puts beyond the reach of the democratic process and that which it does not.”

During his tenure, he cautioned that the Supreme Court should not adhere to wrong decisions because they might be popular at the moment. The Supreme Court “derives its legitimacy, not from following public opinion, but from deciding by its best lights whether legislative enactments of the popular branches of Government comport with the Constitution.”

If the Court misinterpreted a statute, the people could take their case to Congress or the states to overturn the Court’s interpretation, as happened more than once during his tenure. But because interpretations of the Constitution are not subject to change by Congress or state legislatures, it was all the more important that the Court be open to change wrong decisions and to “take care to render decisions ‘grounded truly in principle’ and not simply as political and social compromises….”

He was careful to base constitutional decisions, as much as possible in individual cases, on the text and history of the Constitution, and was constantly wary of legal rules that were based “on a judge’s subjective determinations.” Adherence to the text and history of the Constitution was needed “to prevent ‘judges from roaming at large in the constitutional field’ guided only by their personal views.”

Consequently, he spurned the subjective “complex balancing of competing interests” in judicial decisions which turned judges into legislators. And he rejected creating new constitutional rights not found in the text of the Constitution “from abstract concepts of personal autonomy.” The public will is better expressed by elected representatives than by nine unelected lawyers.

Where the Constitution did not dictate otherwise, he deferred to state decisions or procedures. For example, Chief Justice Rehnquist wrote the majority opinion for the Court in the 1990 Cruzan case. There, in a case with similarities to the Schiavo case, the Court upheld the authority of Missouri to require “clear and convincing evidence” of the desires of a disabled patient, Nancy Cruzan, before withdrawing food and fluids.

Likewise, he also wrote the opinion for the Court in the Glucksberg case in 1997 which upheld Washington State’s prohibition on assisted suicide and left the issue of assisted suicide to the people through their representatives in the states. He noted that the states laws prohibiting assisted suicide “are longstanding expressions of the States’ commitment to the protection and preservation of all human life.”

His opinion in Glucksberg is an excellent example of his consistent effort to limit judicial decision-making. In Glucksberg, he wrote that the Court’s analysis should begin “by examining our Nation’s history, legal traditions, and practices.” He emphasized that “[b]y extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action.” Therefore, the Court’s analysis should at least be “carefully refined by concrete examples involving fundamental rights found to be deeply rooted in our legal tradition.”

He deferred to popular expressions of religious conviction that were not ruled out by the Constitution. He dissented in the Santa Fe case when the Court struck down school policy of student-led prayer before high-school football games. He rejected the Court’s opinion that “bristle[d] with hostility to all things religious in public life.”

For similar reasons, in 2002, Chief Justice Rehnquist delivered the opinion of the Court upholding the Cleveland school district’s policy of giving tuition aid to attend either public or private schools, including religious schools. He wrote: “where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens, who, in turn, direct governmental aid to religious schools wholly as a result of their own genuine and independent private choice, the program” is constitutional. A program of “true private choice” is constitutional.

His commitment to judicial restraint was summed up in his dissent in Texas v. Johnson in 1989, when the Court held that state and federal laws prohibiting flag burning were unconstitutional. He filed a strong dissenting opinion, expressing his conviction that Congress and the states could constitutionally prohibit the public burning of the American flag because of its “unique position” as “the visible symbol embodying our Nation.” He looked to “the Nation’s history, legal traditions, and practices” as constraints on judicial decision-making.

Today, the Court needs new justices who will carry on Chief Justice Rehnquist’s loyalty to the text and history of the Constitution, his skepticism of judicial power, and his devotion to constitutional self-government.

Clarke D. Forsythe is attorney and director of the Project in Law & Bioethics at Americans United for Life, Chicago.


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