Rehnquist, William H. (1924–) (Update 1)

• Author: Craig M. Bradley
• Pages: 2154-2158

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William H. Rehnquist grew up in Milwaukee and was educated at Stanford, Harvard, and Stanford Law School. He served as a law clerk to Supreme Court Justice ROBERT H. JACKSON and then entered into private practice in Phoenix. In 1969, through his association with Deputy Attorney General Richard Kleindienst and work as a Republican party official in Phoenix, he went to Washington as Assistant Attorney General for the Office of Legal Counsel. On January 7, 1972, he, along with LEWIS F. POWELL, was sworn in as an Associate Justice of the Supreme Court. On September 26, 1986, he was sworn in as CHIEF JUSTICE of the United States, only the third sitting Justice to be so elevated. Despite widespread disagreement with Rehnquist's views among legal academics, there is little dispute that he is among the ablest Justices who have ever served on the Court.

Justice Rehnquist's vision of the nation's constitutional structure, emphasizing the words and history of that document, is expressed in three doctrines: STRICT CONSTRUCTION (of both the Constitution and of statutes), judicial

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restraint, and FEDERALISM. He summarized this vision in a 1976 speech at the University of Texas:

It is almost impossible?to conclude that the [Founding Fathers] intended the Constitution itself to suggest answers to the manifold problems that they knew would confront succeeding generations. The Constitution that they drafted was intended to endure indefinitely, but the reason for this well-founded hope was the general language by which national authority was granted to Congress and the Presidency. These two branches were to furnish the motive power within the federal system, which was in turn to coexist with the state governments; the elements of government having a popular constituency were looked to for the solution of the numerous and varied problems that the future would bring.

In other words, as he stated, dissenting, in TRIMBLE V. GORDON (1977), neither the original Constitution nor the CIVIL WAR amendments made "this Court (or the federal courts generally) into a council of revision, and they did not confer on this Court any authority to nullify state laws which were merely felt to be inimical to the Court's notion of the public interest."

During his early years on the Court, despite the presence of three other Republican appointees, Justice Rehnquist was often in lone dissent, espousing a view of STATES ' RIGHTS and limited federal judicial power that many regarded as anachronistic. For example, in Weber v. Aetna Casualty and Surety Company (1972), SUGARMAN V. DOUGALL (1973), and FRONTIERO V. RICHARDSON (1973), he resisted the view of the other eight members of the Court that the EQUAL PROTECTION clause of the FOURTEENTH AMENDMENT applied to, and required heightened scrutiny of, state-sponsored discrimination against illegitimate children, resident aliens, and women, respectively. Indeed, he insisted that the equal protection clause had only marginal application beyond cases of RACIAL DISCRIMINATION. In the area of CRIMINAL PROCEDURE Rehnquist urged that the Court overrule MAPP V. OHIO (1961), which applied the EXCLUSIONARY RULE to the states. Rehnquist also seemed hostile to MIRANDA V. ARIZONA (1966), though he never directly argued that it should be reversed. Still, even in his early years on the Court, Justice Rehnquist was less likely to be in dissent than the liberal Justices WILLIAM O. DOUGLAS, WILLIAM J. BRENNAN, and THURGOOD MARSHALL; and the ideas expressed in some of Rehnquist's early dissents, such as in CLEVELAND BOARD OF EDUCATION V. LAFLEUR (1974) and Fry v. United States (1975) were influential in majority opinions in the years to come.

The 1975 term saw Justice Rehnquist come into his own as the leader of the (ever-shifting) conservative wing of the Court. In that term he wrote for the Court in PAUL V. DAVIS (1976), holding that reputation, standing alone, was not a constitutionally protected "liberty" interest subject to vindication under the guarantee of PROCEDURAL DUE PROCESS OF LAW;in NATIONAL LEAGUE OF CITIES V. USERY (1976), holding that the TENTH AMENDMENT limited Congress's power under the COMMERCE CLAUSE to regulate the states; and in RIZZO V. GOODE (1976), holding that "principles of federalism" forbade federal courts from ordering a restructuring of a city police force in response to constitutional violations. In National League of Cities, Rehnquist used an expansive reading of the Tenth Amendment to strike down a federal statute that regulated the wages and hours of state government employees, although such regulation was otherwise concededly within Congress's commerce power. The opinion showed that when faced with a choice between judicial restraintstrict constructionism and states' rights, Justice Rehnquist was prepared to defend the latter aggressively. However, the potential significance of the first decision limiting Congress's use of the commerce power since 1936 was eroded by subsequent Court majorities, first refusing to follow, and then overruling, National League of Cities in GARCIA V. SAN ANTONIO METROPOLITAN TRANSIT AUTHORITY (1985). Despite Justice Rehnquist's prediction in dissent that this issue would return to haunt the Court, it seems unlikely that the Court will really disable Congress from establishing national control of virtually any area in which Congress chooses to assert itself. Whatever the political leanings of the other Justices, a majority generally seems to believe that the strong national-weak state governmental system is the proper direction for the country.

When dissenting, Rehnquist makes his most telling points in opposing the majority's efforts to enact "desirable" social policy with little support from the constitutional or statutory provisions that they purport to be interpreting. An example is UNITED STEEL WORKERS OF AMERICA V. WEBER (1979). In that case, Kaiser Aluminum Company and the United Steelworkers had devised a "voluntary" affirmative action plan under which half of available positions in an on-the-job training plan would be reserved for blacks. Weber, excluded solely because he was white, filed suit based on Title VII of the CIVIL RIGHTS ACT OF 1964...