Rehnquist, William H. (1924–)

• Author: Frank H. Easterbrook
• Pages: 2152-2154

Page 2152

William Rehnquist joined the Supreme Court in 1971 at age forty-seven. He had been a clerk to Justice ROBERT H. JACKSON and a practitioner in Arizona. At the time of his appointment, he was the assistant attorney general for legal counsel?as President RICHARD M. NIXON described the post on appointing him, "the President's lawyer's lawyer."

Brilliant, charming, and deeply conservative, he has become the intellectual leader of the court?a fact that is not obvious from the statistics. Many terms he has dissented more than any other Justice, often alone. Rehnquist's influence lies in setting the terms of the debate. His dissents mark the path for future developments. His MAJORITY OPINIONS have been unusually influential, in part because Chief Justice WARREN E. BURGER regularly assigns him the most difficult and interesting cases, and in part because the opinions articulate approaches that have substantial general importance.

Rehnquist follows a structural approach in which the original understanding and the text of the Constitution

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assume great importance. The states play a substantial role in this structure, and a vision of an allocation of functions between state and federal governments lies at the center of Rehnquist's thought. He takes seriously the proposition that the federal government has limited powers and that the states hold sway over substantial fields. The Justice also has a view of the allocation of powers within the federal government in which judges play only a limited role. Judges may enforce some explicit guarantees, such as the right to FREEDOM OF SPEECH, but Rehnquist sees their more important function as enforcing the decisions of the political branches rather than questioning them. Judges must patrol the allocation of powers among other contending claimants, but once a political branch acts within its capacity, the decision, no matter how unwise, binds the courts.

This highly deferential approach follows from a belief that the Framers of the Constitution settled little but governmental structure, leaving the rest to future generations. Judges have no authority to restrict the powers of the political branches. They cannot invoke a decision by the Framers or political branches allocating power to the courts, and they cannot point to any other source of authority. Rehnquist is a moral skeptic and so rejects arguments that the Constitution authorizes judges to insist that other branches keep up with evolving notions of decent conduct; he believes that only the political process can define decency.

Justice Rehnquist outlined his approach in a solitary dissent to TRIMBLE V. GORDON (1977). The majority held that a statute discriminating against illegitimate children violated the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT. Calling that clause a...