WASHINGTON — Chief Justice William Hubbs Rehnquist's death Sept. 3 was not unexpected. The talk among Washington's political class had been that the 80-year-old jurist, stricken by thyroid cancer, would not survive the summer.
Still, his death at his home in Arlington, Va., quietly shook national politics, even as the nation's attention was turned instead to the destruction of one of its major cities.
Depending on the Supreme Court appointments of the next three years, Rehnquist's influence could disappear altogether. But more likely, he will be remembered as a Moses figure — the pioneer of a revolution that he did not live to see through himself.
“He's been one of the towering chief justices in the history of our Supreme Court,” said Bernard Dobranski, dean of the Ave Maria School of Law. “People are only now starting to realize what a long shadow he cast.”
Rehnquist, who was appointed an associate justice of the Supreme Court by President Richard Nixon in 1972, worked through what was a trying time for the American court system — a period during which control of the court became the key to control of American politics.
At the time of his appointment, the Supreme Court was dominated by justices who saw their own role as that of a national super-legislature, with a right to set national policies on such topics as the death penalty, school busing and birth control. Rehnquist gained a reputation as the “Lone Ranger” for his dissenting opinions, which were often very much out of step with the rest of the court.
Among Rehnquist's first cases was arguably the most controversial decision of the 20th century. He was one of only two on the high court to dissent from the 1973 Roe v. Wade decision that created a constitutional right to abortion and forced wide-ranging abortion policies on states. He found himself outnumbered in his defense of states’ rights to impose capital punishment.
Rehnquist's importance increased after his 1986 elevation as chief justice, and especially when like-minded Justices Antonin Scalia and Clarence Thomas joined the high court. In 1992, Rehnquist and three other justices came one vote shy of overturning Roe in the case of Planned Parenthood v. Casey.
By the late 1990s, after a decade at the helm of the nation's judiciary, Rehnquist had gone from a dissenting bomb-thrower to a shaper of the Supreme Court's direction. He led the judiciary branch in limiting federal power and reasserting state control in landmark cases involving gun control, domestic violence and other issues.
Rehnquist also held together a unanimous Supreme Court in two 1997 cases in rejecting the idea of a constitutional right to physician-assisted suicide, instead leaving states free to continue criminalizing the practice. In 2002, a 5-4 decision allowed the City of Cleveland to keep its school voucher program in Zelman v. Simmons.
As he neared his final days, however, Rehnquist watched the Supreme Court enter one of its most aggressive phases of moving domestic social policy in a different direction.
In 2000, he was in the minority in the 5-4 Stenberg v. Carhart decision, which created a right to partial-birth abortion. In the 2003 case Lawrence v. Texas, Rehnquist was on the losing side of a 6-3 decision that reversed precedent and created a right to homosexual sodomy. He also found himself in the minority as the 5-4 eminent domain Kelo v. City of New London decision this year eroded Americans’ property rights vis-à-vis their state and local governments.
Dobranski noted that fidelity to the U.S. Constitution, more than any personal ideology, was the driving principle behind Rehnquist's jurisprudence throughout his career. He noted that Rehnquist's dissent from Roe, for example, “didn't come from a pro-life philosophy of sorts — which also doesn't mean that he didn't have that. But he was more committed than anything to acting within the traditional limits of the Constitution.”
“He wrote a blistering dissent against Roe when it was first decided,” said Sean Rushton, executive director of the Committee for Justice. “He really stuck with that till the end and was pretty tough about it through his career. He probably would have voted to reverse Roe, had he ever had the opportunity.”
Rehnquist, a veteran of World War II, served as an assistant attorney general in the Nixon administration prior to his appointment to the Supreme Court. Since 1986, when President Ronald Reagan elevated him to the position of chief justice, he oversaw the entire federal judiciary and presided over the Supreme Court's secret deliberations.
Although the Milwaukee-born Rehnquist was a Lutheran, his funeral was held at St. Matthew's Catholic Cathedral in downtown Washington — a departure from the normal venue for high-ranking government officials’ funerals, the Episcopal National Cathedral.
In a prepared statement released by the Washington Archdiocese, Cardinal Theodore McCarrick remarked on his own personal friendship with Rehnquist. “I had the privilege of knowing him personally and of being with him many times over the years,” McCarrick wrote. “He regularly attended the Red Mass, celebrated each October here in our nation's capital, to pray for those in the administration of justice. He was always most gracious and thoughtful in his comments on those occasions.”
The nominee to succeed Rehnquist as chief justice of the U.S. Supreme Court, Appellate Judge John Roberts, clerked for the late chief justice during the 1980-81 Supreme Court term. Roberts, a jurist on the District of Columbia Court of Appeals, was originally chosen by President Bush to replace the retiring Sandra Day O'Connor.
Rehnquist's death altered the face of the Roberts confirmation battle. Upon learning of Rehnquist's death, Bush altered the Roberts nomination, naming him instead to replace his former mentor. Bush also asked O'Connor to remain on the Supreme Court until a new replacement is found for her and confirmed.
Rushton remarked that Rehnquist's death does not affect Roberts’ nomination as much as it affects the next nomination for the high court, which is expected to come sometime this month.
“I don't see that it does anything for the Roberts confirmation,” said Rushton. “That's a done deal.”
Pro-abortion groups, particularly Naral Pro-Choice America (formerly the National Abortion Rights Action League), have attacked Roberts in television ads as an enemy of abortion “choice.” But his qualifications are impressive enough that nothing has put a dent in his confirmation process. In fact, several Senate Democrats have praised him in public.
“They obviously want to stop the guy, but they can't come up with a good reason for that,” said Rushton.
If Roberts’ nomination can be sufficiently delayed or slowed by controversy, Senate Democrats may be emboldened to block Bush's next nomination. As an alternative, Bush could be cowed into nominating someone Democrats will approve. But Dobranski pointed out that Bush has an excellent track record in selecting judicial nominees.
“He's been lopsidedly good,” said Dobranski, pointing out several of Bush's lower-court appointments. “I don't see any bad nominations.”
Rushton also expressed confidence that Bush would follow through with a second appointment. “We're just counting on him doing the right thing and following through,” he said. “And I think he will.”
Roberts is likely to receive between 60 and 70 votes for confirmation, if not more. A spokesman for Sen. Sam Brownback, R-Kan., expressed satisfaction with the nominee. “Sen. Brownback liked the president's move of nominating Roberts to the top job,” said spokesman Brian Hart. “He feels mostly comfortable with Roberts, but he still wants to ask him some questions.”
For the next nominee, Hart said that Brownback “would prefer a conservative female, but it's not an absolute requirement.”
David Freddoso writes from Washington, D.C.