Overruled: How Conservative Was Chief Justice Rehnquist?

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BOOKS OCTOBER 2, 2012

Overruled: How Conservative Was Chief Justice Rehnquist?

The Partisan: The Life of William Rehnquist
by John A. Jenkins
PublicAffairs Books, 330 pp., $28.99

THE PARTISAN IS the first full biography of William Rehnquist, who was an associate justice of the Supreme Court from 1972 to 1986, and chief justice from 1986 to his death in 2005. Rehnquist was one of the more conservative members of the Court, and had many detractors. Jenkins too does not like Rehnquist’s performance on the Court, but his objection amounts to little more than the complaint that Rehnquist decided cases differently from the way Jenkins would have decided them, which leads to the forensic task of sifting through Rehnquist’s life for an explanation as to how he could have gone so far astray. This lack of generosity toward his subject undermines a biography that could have addressed some interesting questions, such as how someone who tended toward the extreme and frequently dissented managed to lead the institution so effectively.

The thesis of the book is summed up in the title. “If you were a homosexual, a racial or religious minority, a woman, an alien, an accused criminal, or someone facing the death penalty, you were not going to get Rehnquist’s vote,” writes Jenkins. Rehnquist was not just a conservative, but a “rigid conservative,” one who subscribed to a “judicial philosophy [that] was nihilistic at its core.” For Rehnquist, “ideology and results were what counted.” He had a “perverse commitment to principle.” He saw “cases in black and white” and his vote could always be “predicted based on who the parties were.” His judicial philosophy reflected “the majoritarian homogeneity of Shorewood [Rehnquist’s home town] and the simplicity of an earlier time when white men ruled.”

This view of Rehnquist is common on the left; Jenkins supplies additional invective but no original analysis of Rehnquist’s opinions. He damages his credibility by overstating his thesis, and then acknowledging—as he must—that Rehnquist did not always rule against criminal defendants, for example, or against women. In one notable case, Rehnquist wrote an opinion that favored a criminal defendant and refused to overrule the Miranda warnings, much to the dismay of Justices Scalia and Thomas, who dissented. In another case, Rehnquist upheld a statute that ensured that family and medical leave benefits would be enjoyed by state employees. Jenkins admits that this “wasn’t the only time that Rehnquist confounded the conservative pundits.” In yet another example, Rehnquist concurred in a holding that the Virginia Military Institute’s male-only admission policy violated the Constitution. These and similar cases established that Rehnquist was not the most conservative justice on the Court, and was not always predictable.

Yet the basic point—that Rehnquist was a conservative who tended to vote against parties whom liberals favor—is correct. The question is what to make of this observation. Do we criticize Rehnquist for disagreeing with liberal justices or liberal justices for disagreeing with Rehnquist? No one really knows how to answer this question, because no one can agree on what Supreme Court justices are supposed to do. Most law professors believe that a Supreme Court justice ought to advance a “jurisprudence” or “judicial philosophy,” and not simply vote his or her ideological preferences, but there is intense disagreement about what a legitimate jurisprudence is, with conservatives arguing that justices should enforce the “original understanding” of the Constitution and liberals arguing that justices should take account of evolving (usually liberal) norms. Some scholars have described Rehnquist’s jurisprudence as one favoring majoritarian rule, federalism, and law and order, but it is hard to evaluate such a jurisprudence without relying on ideological priors, and we are back where we started. Jenkins faults Rehnquist for disregarding stare decisis—the principle that older cases should control later decisions—but the liberal justices that Jenkins champions did not respect stare decisis either, so why should Rehnquist?

So the failing of the book is that Jenkins does not try to explain how we should evaluate a justice, and gives little context as to the capabilities and limits of the Supreme Court. His argument is essentially that Rehnquist was a bad justice because he did not write liberal opinions. The contribution of Jenkins’s book lies elsewhere—not in its analysis of Rehnquist’s opinions, which is superficial, or in its assessment of the appropriate role for a Justice, which goes essentially unexamined, but its presentation of Rehnquist’s biographical details in one place.

Rehnquist grew up in a small Midwestern town where conservative values dominated; did well in school; briefly served in the army in a non-combat role during World War II; distinguished himself in law school; clerked for the eminent Supreme Court Justice Robert Jackson; moved to Arizona and practiced law for a few years; worked for the Goldwater campaign; served in Nixon’s Justice Department; and then became a Supreme Court justice. He enjoyed a quiet family life; he was frugal and punctual; he did not take himself terribly seriously and liked to play practical jokes; he enjoyed poker games with his friends; he tried to write novels but lacked literary talent. He suffered from chronic pain and was briefly addicted to prescription painkillers, thanks to an incompetent doctor. He valued his privacy and left few revealing documents, which Jenkins dutifully culls from the archives.

Jenkins does the best he can with this unpromising material, mostly for the purpose of showing that Rehnquist’s conservative jurisprudence was driven by a blinkered view of life, limited experience, a lack of empathy for others, and a desire to win at all costs. But there is just not much for him to work with, and he ends up describing pretty uninteresting events in Rehnquist’s life in order to bend Rehnquist’s biography to his thesis—the reader must accordingly suffer through Jenkins’s description of Rehnquist’s attempt to prevent a cousin from being invited to his daughter’s wedding because the cousin had failed to reciprocate Christmas cards. The details pile up, amounting to nothing in particular. If Jenkins’s idea is that a few episodes of pettiness, arrogance, and insensitivity over a lifetime prove that Rehnquist was a bad guy, and that explains his conservative judicial output, Jenkins fails to make his case. But then, it is not really clear whether this is Jenkins’s goal.

Jenkins seems to realize that the standard for evaluating a chief justice may not simply be ideological. One might also care about how well the chief justice performed in terms of institutional values or leadership qualities. But for Jenkins Rehnquist fails regardless of the angle. He argues that Rehnquist failed to lead because he did not cause the Court to move right when he was appointed chief justice—but a chief justice has little ability to do such a thing. He blames Rehnquist for polarizing the Court when he had no influence over who was appointed to it, and was celebrated for encouraging collegiality among justices with very different views. Jenkins also suggests that Rehnquist failed to lead because the Court frequently split, and he was often in the minority.

According to Jenkins, a good chief justice should engineer outcomes in which he finds himself in the majority, ideally not merely by a 5 to 4 vote—although presumably if Rehnquist had done this he would have moved the Court left, not right. But in any event, why exactly is this the mark of a good chief justice? Should Rehnquist have voted against his beliefs in order to side with the majority? Jenkins never answers these questions. He compares Rehnquist unfavorably to Justice Kennedy and Justice O’Connor, who were frequent swing votes, but does not explain what Rehnquist should have done about the happenstance that he was, throughout his career, the first to third most conservative justice on the Court, never the fifth. Jenkins criticizes Rehnquist both for being an “ideologue” who refused to compromise by siding with the liberals, and for “throw[ing] Scalia and Thomas under the bus” so that he could write the majority opinion in a case involving a school-choice voucher program. This and similar tensions in Jenkins’s argument give the impression of a polemic rather than a serious biography.

Legal academics, a mostly liberal bunch, do not like Rehnquist much more than Jenkins does, but they think Rehnquist accomplished a few things. As an associate justice, he frequently dissented, it is true, but he kept alive conservative ideas that would resurface when conservatives obtained a majority, and those ideas would play a role in a number of significant cases. To be sure, it is hard to know whether these dissents played a causal role in the Court’s later move to the right; maybe not. As a chief justice, he managed the Court effectively; perhaps he should receive some credit for maintaining the Court’s popularity while public approval for the presidency and Congress sank like a stone. Many people who dislike Rehnquist’s opinions nonetheless give him high marks for his administration of the Court, noting that he was fair, even-handed, and efficient in running conferences, assigning opinions, and managing oral argument.

Rehnquist will not go down in history as a great justice, but he was a more complex person than the figure that Jenkins portrays, and his judicial performance was more nuanced than Jenkins lets on. Whatever his faults, he deserves a better biography than this.

Eric Posner is a professor at the University of Chicago Law School.

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