Rehnquist's mixed legacy

Historians will rank him as one of the 20th century's most important chief justices, but while William Rehnquist's court transformed constitutional law, he did not.

Published September 5, 2005 3:30AM (EDT)

Supreme Court Justice William Rehnquist's death Saturday night brings to a close one of the most important periods in constitutional history. Appointed by Richard Nixon in 1972 to strengthen the forces of law and order against what conservatives then and since saw as the imprudent interpretations given the constitution by Earl Warren and his court, Rehnquist presided over a court that put a halt to the Warren courts innovations. But "halt" it was, not a rollback.

Rehnquist's court provided the conditions for its successor to transform constitutional law dramatically. But his court didnt replace a decisively liberal constitutional law with a decisively conservative one. When Rehnquist arrived, constitutional law was tilted in favor of allowing Congress to do whatever it wanted, and against what the justices would describe as limits on individual liberty. A real revolution would have tilted constitutional law in the other direction -- where it would presume that Congress didn't have much power at all, and that restrictions on liberty were generally justified. That didn't happen. Instead, the court shifted from playing on a tilted field to playing on a level one, in which it considered, as University of Chicago law professor Cass Sunstein puts it, "one case at a time," with no presumptions one way or the other.

Rehnquist was a reliable conservative on law-and-order issues, but those issues werent what really got his attention. Rehnquist's signature issue as a Supreme Court justice was federalism -- the allocation of some powers to the national government and others to state governments. When he joined the court he was the only justice who cared about limiting Congress' power, and he succeeded in putting the existence of those limits back on the constitutional table. In 1972 the court had only one option when a national law was challenged as being beyond Congress' power under the constitution's "commerce clause": Uphold the law. After Rehnquist, the court has the option of invalidating the law. That's a real achievement.

The medical marijuana decision the Supreme Court issued shortly before it ended its term on June 27 is a good example of Chief Justice Rehnquist's accomplishments -- and their limits. Over a dissent Rehnquist joined, the court upheld the constitutionality of a federal statute making it a crime to grow marijuana, even when it is intended for personal use as a medical treatment in a state that has endorsed such use.

What's notable about the case is not the result but that it got to the Supreme Court in the first place. When Rehnquist came to the court in 1972, the idea that Congress couldn't make drug possession and use a crime would have been laughed out of any court in the country. After decades of struggling to figure out what fell within the scope of Congress' power to regulate interstate commerce, the court had settled on a rule: essentially everything. Everyone knew that this rule wasn't entirely compatible with basic ideas about federalism, but nobody had been able to develop any other rule that courts could apply in sensible and consistent ways.

Rehnquist began to challenge the federalism doctrine in place when he arrived. Initially writing in dissent, he insisted that the Supreme Court had to enforce some limits on Congress' powers, although as a dissenter he never really had the responsibility to develop an alternative rule.

That changed as other conservative-leaning justices joined the court and eventually had enough votes to impose three limits on Congress' powers. Two were symbolically important, but in the end they wont matter much. First, the conservatives said that Congress couldn't "commandeer" state legislatures or executive officials to implement national policy: It could ask, but it couldn't demand compliance. Second, they said that Congress couldn't require state governments to pay money damages to people injured by the states' failure to comply with national statutes. These doctrines wont matter much because Congress rarely commandeers, and the court left untouched all sorts of other ways of getting states to comply with national law.

The third limitation Rehnquist and his colleagues imposed might have had a larger impact. They said that Congress could regulate only "commercial" or "economic" activities. The justices' first targets were statutes that many neutral observers thought were good examples of unnecessary national legislation. The court struck down a statute making it a federal crime to possess a gun near a school, and another statute allowing victims of gender-motivated violence to sue their assailants for damages in federal court (without first showing that they couldn't get damages in a state court). The federalism theory the court revived might have gone further, to threaten statutes like the federal Occupational Health and Safety Act.

New York Times Supreme Court correspondent Linda Greenhouse and others characterized these decisions as portending a "federalism revolution," in which the national government's powers would be cut back sharply. But the Supreme Court's ruling in this term's medical marijuana case shows that the revolution accomplished under Rehnquist was less sweeping than it might have been. Indeed, by 2005, it wasn't frivolous to suggest that national drug laws might be unconstitutional. (Making arguments against national power legally credible is one important aspect of Rehnquist's legacy.)

Instead, relying on a classic case from the New Deal, the Supreme Court's majority held that Congress could prohibit medical use of marijuana as part of a comprehensive system of drug regulation, which would be undermined if people could grow marijuana for their own medical use.

Only the Supreme Court's future rulings can indicate which direction it will go with regard to Rehnquist's primary contribution -- convincing the court that it has the option of invalidating national laws. Over the next few years the court might expand the guns-near-schools doctrine and treat the medical marijuana case as an aberration, or it might go back to the pre-Rehnquist thinking and treat the guns-near-schools case as the aberration. Or the court might simply occasionally strike down a national law, almost at random, just to remind Congress that its powers are limited.

For all the attention the Rehnquist court's federalism cases have attracted in the legal academy and in the press, they are hardly the stuff of deep public concern. Federalism decisions deal with who can regulate: Even if Congress can't outlaw guns near schools, states can (and do); even if Congress couldn't ban medical marijuana, states can (and many do). What people care about is what governments do, not which governments do them.

Rehnquist of course wrote many opinions on what governments can do, and his usual answer was, "Pretty much anything they want." He was a strong supporter of government efforts to prevent and punish crime, getting his back up only when Congress challenged judicial supremacy by directing the courts to disregard the 1966 Miranda decision (which protects a suspect's right against self-incrimination).

In addition to federalism and criminal procedure, Rehnquist focused on religion. Again from early in his service, Rehnquist supported constitutional rules allowing greater interaction between government and religion. He paid less attention to the symbolic issues of school prayer and posting the Ten Commandments than to the practical ones of providing financial support to church-related schools. An opinion he wrote for the court in 1983 foreshadowed its more recent endorsement of school voucher programs.

Rehnquist argued persistently that legislatures could provide aid to church-related schools as part of a program of financial assistance that flowed to such schools and secular ones evenhandedly. At first his colleagues forced him to hedge this "neutrality" rule with lots of qualifications. But case by case, those qualifications dropped away, by 2005 leaving only a quite modest -- and doctrinally vulnerable -- ban on direct government funding of church-related schools.

In the end, Rehnquist's legacy is a curious mix. I have no doubt that historians will rank him with Earl Warren as one of the 20th century's most important chief justices. Constitutional law changed as dramatically on Rehnquist's watch as it did under Warren. However, these changes occurred while Rehnquist was on the court, but not because of his leadership. Like Peter Sellers' character Chance in "Being There," Rehnquist was on the Supreme Court when things happened around him. Most notably, he was joined by other justices who already thought about the constitution in ways Rehnquist liked. Their votes rolled in, and eventually Rehnquist's position prevailed.

The Rehnquist court transformed constitutional law, but William Rehnquist himself did not. The justice's achievements, therefore, though hardly unimportant, were more modest than it might seem at first.

By Mark Tushnet

Mark Tushnet is the author of "A Court Divided: The Rehnquist Court and the Future of Constitutional Law."

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