Majoritarian democracy in a federalist system: the late Chief Justice Rehnquist and the First Amendment.

• Author: Engelken, Sheri J.

INTRODUCTION

To some, linking the late Chief Justice William H. Rehnquist and the First Amendment smacks of paradox. (1) Known throughout the entirety of his thirty-three years on the Supreme Court for his judicial conservatism, (2) Chief Justice Rehnquist is probably best remembered in the First Amendment arena for the many opinions in which he found no protection afforded by the First Amendment. (3) Rehnquist is also well-known for opinions holding that, if the First Amendment conferred any rights, they were overborne by government interests that the Chief Justice found weightier and more imperative. (4) One noteworthy example is Texas v. Johnson, (5) a 1989 case in which Chief Justice Rehnquist dissented from the majority's holding that a Texas statute criminalizing public flag burning was unconstitutional. (6) It is, therefore, no surprise that some scholars and commentators have criticized the late Chief Justice's First Amendment jurisprudence as meager, unprincipled, or indifferent. (7)

But Rehnquist did not find against the advocates of free speech in every First Amendment case, (8) so a closer examination of his jurisprudence in this area holds some intrigue. (9) In particular, how did Rehnquist determine what protections he understood the First Amendment to afford, and what was his approach to resolving conflicts between acknowledged First Amendment rights and government restrictions impinging on those rights?

An examination of every case in which Rehnquist authored an opinion that treated an issue of freedom of speech, press, or association, addresses these interesting questions. (10) All told, these cases comprise a universe of more than seventy opinions. The late Chief Justice obviously participated in many more than seventy cases involving claims of freedom of speech, press, or association during more than three decades on the Supreme Court. (11) But focusing on that subset of cases where Rehnquist penned his own opinion provides insight into his particular views on the extent of First Amendment protection. (12) Speech cases in which Rehnquist merely joined the opinions of other Justices might indicate generally the doctrines to which he did or did not subscribe, (13) or perhaps more accurately, the outcomes with which he agreed. (14) The opinions of the other Justices, however, do not reveal how Chief Justice Rehnquist's philosophy of protected expression differed from theirs.

Underlying Rehnquist's opinions are two important principles that help explain his approach to speech-related constitutional issues. The first principle is the protection of majoritarian democracy, which entails the protection of democratic values in two different contexts. First, Rehnquist recognized the importance of protecting certain core political speech rights under the First Amendment that he believed essential to maintaining the "majority rule" ideal on which our democracy is premised. Second, he sought to avoid judicial trampling on laws enacted by legislative bodies elected by the democratic majority. (15) These two democratic ideals are somewhat in tension because as the "territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically by the people and their representatives...." (16) The Rehnquist speech cases reveal his efforts to balance these two ideals. The weaker the assertion that the expression at issue was core political speech that enhanced citizens' participation in our democratic system, the greater the likelihood that Rehnquist would find to be more weighty the democratic values inherent in the elected legislature's enactment of the regulation restricting speech, press, or association.

The second principle that helps explain the late Chief Justice's approach to First Amendment problems--and probably of equal importance to his desire to protect democratic ideals--was his zeal for our federalist system. The Rehnquist speech cases demonstrate that he treated federal restrictions on speech with less deference than similar restrictions on speech imposed by the states. Rehnquist took special care to narrowly interpret state and local laws restricting speech, and he deferred to state court interpretations of such legislation whenever possible. (17) In his view, the First Amendment imposed weaker constraints on the power of the states to regulate speech than it did on the powers of Congress and the federal government. (18)

Both of these principles, majoritarian democracy and federalism, are structural elements of our nation's system of government enshrined in the Constitution. Our Constitution established a federalist system with fifty states retaining partial sovereignty under a federal government of limited powers. The U.S. Constitution and the constitutions of the fifty states have made majoritarian democracy the engine to run both state and federal systems. Rehnquist frequently invoked this structural perspective in examining First Amendment speech issues and in opining how such constitutional conflicts should be resolved.

1. CHIEF JUSTICE REHNQUIST'S BACKGROUND

   How did William Rehnquist arrive at his approach? He certainly did not come to the Supreme Court as a blank slate. Before turning to the cases that best exemplify the principles of majoritarian democracy and federalism in the late Chief Justice's jurisprudence, it is useful to understand something of his background.

   William Rehnquist grew up in suburban Milwaukee in a Republican household. (19) After serving in World War II, he used the GI Bill to attend college at Stanford. (20) As an undergraduate, he majored in political science. He continued on to earn a masters degree, also at Stanford, in political science. (21) He then attended Harvard, where he received another masters degree, this time in government. (22) He returned to Stanford, where he attended law school, graduating first in his class. (23)

   During the year and a half following law school, he clerked for Supreme Court Justice Robert Jackson. (24) After his clerkship, he took the Arizona Bar and spent sixteen years in private practice as a civil litigator in Phoenix. (25) While in practice, he was active in the Republican Party in Arizona. (26) Then, in 1969, he left private practice to take a job in the Nixon administration as Assistant Attorney General in the Office of Legal Counsel, working under another former Phoenix lawyer Richard Kleindienst. (27) In 1972, Nixon nominated and, by a 68 to 26 vote, the Senate confirmed Rehnquist as Associate Justice of the Supreme Court. (28) He was forty-seven years old.

   For the first three years, between 1972 and 1975, then-Justice Rehnquist shared the Supreme Court bench with Justice William O. Douglas, (29) a vigorous advocate of First Amendment rights throughout his tenure on the Court. During those three years, Rehnquist and Douglas saw eye-to-eye on virtually nothing in the First Amendment field. As a "zealous defender of civil liberties," (30) Justice Douglas viewed First Amendment claims from a rights-based perspective, a point of view in serious conflict with the structural approach that underlies Rehnquist's First Amendment jurisprudence.

   Even in Jenkins v. Georgia, (31) a 9-0 decision, Justice Douglas did not join the majority opinion authored by then-Justice Rehnquist. The Court in Jenkins struck down the defendant's obscenity conviction for showing the Oscar-winning movie Carnal Knowledge on the ground that the movie was not obscene as a matter of law. (32) Justice Douglas concurred separately and argued that no ban on obscenity is constitutional under the First and Fourteenth Amendments, (33) an absolutist position that Rehnquist would never embrace.

   Justice Douglas, who served on the Court for more than thirty-six years, (34) wrote more dissents than any other Justice (35) and was even described as "The Great Dissenter," (36) a title previously given to Justice Holmes. (37) As the Rehnquist speech cases reveal, however, Rehnquist was a prolific dissenter, especially during the period between his appointment in 1972 and Justice Scalia's appointment to the Court in 1986, authoring many solo dissents during that period. (38)

   Rehnquist served as Associate Justice until 1986 when, after Chief Justice Warren Burger retired, President Ronald Reagan nominated and the Senate confirmed Rehnquist as Chief Justice by a vote of 65 to 33. (39) He led the Court as Chief Justice for nearly nineteen years, until his death in 2005. In total, he served on the Court for thirty-three and a half years.

   William Rehnquist came to the Supreme Court with a background as a political scientist, lawyer, and executive branch official. Even before joining the Court, while a young lawyer in Phoenix, Rehnquist revealed himself to be a strong federalist. Shortly after his clerkship for Justice Jackson ended, he published an op-ed piece in U.S. News & World Report criticizing his fellow former Supreme Court clerks for what he viewed as their leftist philosophy of "expansion of federal power at the expense of State power." (40) Given his training in the fields of political science and government, it should not be surprising that Rehnquist used such structural principles as democracy and federalism as guideposts in his First Amendment jurisprudence.

2. DEMOCRACY AND FEDERALISM

   Rehnquist's opinions addressing two particular First Amendment topics, commercial speech and election-campaign law, illustrate how he applied the principles of democracy and federalism in his decisions. Commercial speech and election-campaign law come from opposite ends of the First Amendment spectrum. Commercial speech has traditionally resided at the periphery of protected speech, if it is protected at all. (41) Conversely, speech and associational rights relating to elections and political campaigns are indisputably political speech within the core of First Amendment protection. (42) Rehnquist's opinions on commercial speech and...