Assessing Chief Justice William Rehnquist.

• Author: Chemerinsky, Erwin
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

How should a Chief Justice be assessed? This conference provides the occasion for considering this question as part of looking at the role of Chief Justice on the Supreme Court and in the American legal system. Rather than examining the office generally, I want to focus on assessing William Rehnquist as Chief Justice. One way of assessing any Chief Justice is in terms of her ability to achieve a substantive vision of the law. In this sense, few would disagree that John Marshall and Earl Warren were enormously successful in having their substantive visions reflected in the decisions of their Courts. Marshall's visions of judicial review and federalism, among other crucial issues, were embodied in decisions like Marbury v. Madison (1) and McCulloch v. Maryland, (2) which provided a framework for government that lasts to this day. Earl Warren's visions of a more equal society better protecting the dignity of individuals were reflected in the desegregation cases, (3) the rulings incorporating the Bill of Rights, (4) and the decisions requiring reapportionment of state legislatures. (5) Writings on the Warren Court, both by historians and other Justices, leave no doubt as to the profound effect of Earl Warren in bringing about these results. (6)

How should William Rehnquist be assessed as Chief Justice? More specifically, to what extent did the decisions of the Rehnquist Court reflect the views of its Chief Justice? That is the focus of this Article.

At the outset, I need to admit to all of the problems in even engaging in this inquiry. First, it is problematic to assess history that is so recent. The last Term of the Rehnquist Court ended on June 27, 2005, and an academic conference in November 2005 provides only the chance for immediate reflections on an era that has just ended. Certainly, one measure of effectiveness is in bringing about enduring changes in the law. At this point, there can be nothing except guesses and speculation as to which aspects of the Rehnquist Court's decisions will survive and provide a framework for future rulings and which will be overruled or relegated to constitutional footnotes. (7)

Second, focusing on the Court's decisions does not assess all of the other ways in which a Chief Justice influences the Court and the judicial system. For example, a key role of the Chief is in the operation of the Supreme Court, including its efficiency and its collegiality. From everything that is known so far, William Rehnquist likely will be regarded as an excellent Chief in these tasks. (8) One of the most important developments during the time Rehnquist was Chief Justice was a dramatic decrease in the size of the Supreme Court's docket. The Court handed down 164 written opinions in Rehnquist's first year as an Associate Justice, (9) but only seventy-nine opinions in his last Term. (10) I doubt that anyone would deny that this reflects Rehnquist's influence. (11)

The Chief Justice also is responsible for overseeing the Judicial Conference of the United States, the important rules committees, and other aspects of the federal judiciary, including making appointments to some specialized courts and committees. Although all of this is important, none of it is my focus.

Third, it must be recognized that the success, or lack of it, in implementing a substantive vision may have nothing to do with the Chief Justice's effectiveness. Imagine that Michael Dukakis had won the 1988 presidential election and had appointed the successors to William Brennan and Thurgood Marshall. Without Clarence Thomas as a fifth vote in so many cases, countless decisions implementing Rehnquist's views almost surely would have come out differently. (12) Rehnquist likely would have been far less successful substantively, but not because of anything to do with his skills or effectiveness.

Fourth, the quantity of cases makes overall assessments inherently questionable. Rehnquist served as Chief Justice from 1986 to 2005. Over those nineteen Terms, the Supreme Court decided thousands of cases. It is possible to find examples to support any conclusion. Care must be taken to avoid "law-office history"--picking cases from the historical record to support preconceived conclusions. (13)

Although I admit to all of these problems, (14) I still believe it is worth offering an initial assessment of William Rehnquist's substantive success as Chief Justice. My overall conclusion is that Rehnquist was enormously successful in that the Supreme Court during his tenure accepted his views in almost every area of law. In some high profile areas, the Court did not go as far as Rehnquist wanted. The Court did not overrule abortion rights, but it did abandon the use of strict scrutiny and provided more deference to government regulation of abortions. (15) The Court did not eliminate all affirmative action, (16) but it did adopt strict scrutiny as the test for racial classifications benefiting minorities. (17) The Rehnquist Court did not overrule the test for the Establishment Clause put forth in Lemon v. Kurtzman, (18) but it did allow much more government aid to parochial schools. (19)

In explaining my assessment of the Rehnquist Court, this Article is divided into two parts. Part I argues that it is a mistake to think of the Rehnquist Court as if it were the same throughout the tenure of the Chief Justice. Rather, I believe that there were three distinct phases of the Rehnquist Court and that Rehnquist's success in achieving his substantive vision varied over time. Part II then looks at the specific areas of constitutional law and suggests that in every major area, Rehnquist was very successful in that the Court adopted and reflected his views and visions.

This Article is meant to be descriptive, not normative. My goal is to describe the Rehnquist Court and assess the extent to which its decisions reflected the substantive values of its Chief Justice. Although my descriptions are undoubtedly influenced by my quite different normative vision, I do not seek to evaluate or criticize the desirability of the Rehnquist Court's decisions and doctrines. Quite the contrary, my hope is that both liberals and conservatives will agree with the descriptions I provide below of the Rehnquist Court and my assessment of the substantive success of William Rehnquist as Chief Justice.

1. THE ERAS OF THE REHNQUIST COURT

   It is tempting to speak of the Rehnquist Court as if it were a single entity and the same throughout the tenure of William Rehnquist as Chief Justice. In an obvious way, this is incorrect because the Court's membership changed over Rehnquist's nineteen years as Chief Justice. In 1987, Lewis Powell was replaced by Anthony Kennedy. In 1990, William Brennan was replaced by David Souter. In 1991, Thurgood Marshall was replaced by Clarence Thomas. In 1993, Byron White was replaced by Ruth Bader Ginsburg. In 1994, Harry Blackmun was replaced by Stephen Breyer. In other words, five of the other eight Justices were replaced during Rehnquist's time as Chief Justice. Or put another way, only three Justices--John Paul Stevens, Sandra Day O'Connor, and Antonin Scalia--were present for all of the Rehnquist Court. Interestingly, all of the changes in personnel occurred in the first eight years of the Rehnquist Court; there were no vacancies during the last eleven years.

   Professor Thomas W. Merrill suggested that there were two Rehnquist Courts: one from October 1986 until July 1994, and one after that time period. (20) Professor Merrill suggested, among other conclusions, that in its second phase, the Rehnquist Court was "increasingly dominated by a single bloc of five Justices" and that "[s]ocial issues like abortion, affirmative action, and school prayer have significantly receded from the scene." (21) Although I think that Professor Merrill's analysis can be criticized for giving too little attention to cases that were inconsistent with his thesis, (22) developments since his article undermine his view that there were just two eras of the Rehnquist Court. Between 2002, the last Term that Professor Merrill considered, and the end of June 2005, the Court very much turned to the social agenda which Professor Merrill saw the Court as eschewing. Subsequent to Professor Merrill's article, the Court upheld affirmative action in colleges and universities, (23) invalidated laws criminalizing private consensual homosexual activity, (24) struck down a federal law regulating child pornography, (25) and found a Ten Commandments display on government property to be unconstitutional. (26) By any measure, including Professor Merrill's own definition, these are "social issues," and they by no means retreated from the scene during the last years of the Rehnquist Court.

   Moreover, the five-Justice bloc that Professor Merrill identified was much less cohesive during the last years of the Rehnquist Court. For example, of the seventy-six decisions in October Term 2004, nineteen were decided by a five-to-four margin, and in only four of these closely divided decisions was the majority comprised of Rehnquist, O'Connor, Scalia, Kennedy, and Thomas. Thus, while I agree very much with Professor Merrill's premise that the Rehnquist Court changed over time, I see the phases of the Rehnquist Court quite differently from Professor Merrill's description. I believe that there were three distinct phases of the Rehnquist Court since William Rehnquist was elevated to Chief Justice in 1986. The first phase, from 1986 to about 1992, was characterized by great deference to the elected branches of government. Rarely during this time did the Court invalidate federal, state, or local laws, (27) and the Court frequently proclaimed the need for great judicial deference to the elected branches of government. (28)

   To select one Term as an example, October Term 1988 was marked by an exceptional number of significant rulings, such as narrowing abortion rights, (29) limiting affirmative action, (30)...