Even more than Ronald Reagan, William Rehnquist embodied the enduring preoccupations of the American right. As a young clerk to Justice Robert Jackson, he argued that the notorious separate-but-equal precedent Plessy v. Ferguson was “right and should be reaffirmed.” As a Republican legal activist in the 1960s he challenged African-American voters at the polls. From the ashes of the Goldwater campaign Rehnquist hitched his fortunes to Richard Nixon’s appeal to fear of racial integration, sexual revolution and crime, serving as a combative assistant attorney general whose labors in carving out expansive presidential power to wage war and monitor dissent still echo through the Bush Administration’s legal justifications for Guantánamo and the Patriot Act.
Named Associate Justice in 1971 by Nixon, Rehnquist showed canny brilliance at translating the politics of resentment into the judicial arena. Some Justices evolve, re-evaluating the impact of their theories and decisions. But Rehnquist, appointed Chief Justice by Reagan in 1986, never betrayed doubt. He was a dissenter in Roe v. Wade and the all-too-brief abolition of the death penalty in the 1970s, and after 1980 he became the pivotal figure in a new antiliberal majority. In case after case he promoted a contradictory theory of federalism that is taken for granted today as synonymous with conservative judicial philosophy: On the one hand, he fought to limit the power of Congress and federal courts to enforce civil rights, desegregate schools or regulate business. Alongside that was his equally fierce commitment to policing, prisons and every element of social control, whether undercutting the Miranda ruling’s limitations on search-and-seizure or through his dissents in abortion cases. As Chief Justice he was at the heart of the GOP takeover of all three branches of government, joining the infamous Bush v. Gore decision of 2000.
Rehnquist’s death during the New Orleans catastrophe caught the Administration at a vulnerable moment. Bush’s decision to elevate the nomination of John Roberts–leaving retiring Justice O’Connor in her seat for now–rests on the presumption that his nomination is secure. Roberts, as we have argued in these pages, is Rehnquist’s ideological heir: His consistent favoring of presidential power and his restrictive vision of the federal judiciary’s role in civil rights and environmental law reflect his old boss’s agenda. But that doesn’t guarantee his confirmation. To the contrary; the authority of the Chief Justice to assign opinions and manage Court traffic gives ample reason to revisit presumably closed questions and to review his Solicitor General records. The prospect of Roberts as Chief Justice ought to force consideration of his unethical role in the Hamdan Guantánamo case and his secret job interviews with the White House while hearing that case.
Bush hopes Roberts will carry forward Rehnquist’s counterrevolution. But for all his brilliance, Roberts–a flame-throwing appellate litigator, not a consensus-builder–lacks Rehnquist’s years of experience on the bench. Like the right generally, today’s Court conservatives are fragmented; they disagree on abortion, the death penalty, international law and other issues. It’s doubtful Roberts can succeed where even his mentor finally failed to hold the coalition together.
Rehnquist showed little regard for the social consequences of his relentless application of conservative legal theory. The legacy of segregation, “states’ rights” and “limited government” is visible in the ranks of the dead and homeless from Hurricane Katrina. To look back is to look forward with clear eyes. But like his mentor Rehnquist, Roberts pledged himself to the conservative faith as a young man, and he has never looked back.
