William Rehnquist was not an odds-on favorite for a seat on the Supreme Court. The man who put him there, Richard Nixon, was unimpressed after their first meeting, asking an aide in July 1971: “Who the hell is that clown?” At the time, Rehnquist was a Justice Department lawyer known for wearing loud psychedelic neckties with clashing shirts, Hush Puppies and mutton-chop sideburns. A few weeks later, Nixon asked again after the clown, whose name he butchered as “Rehnchburg.” But mere months after that—in the wake of the American Bar Association’s vocal disapproval of several of his potential Supreme Court nominees—Nixon nominated Rehnquist to the Court as a dark horse. Rehnquist was in the right place at the right time: the man Nixon had planned to nominate, Senator Howard Baker, hesitated over accepting an appointment. As head of the Justice Department’s Office of Legal Counsel, Rehnquist had helped vet Nixon’s previous nominees; as a former editor in chief of the Stanford Law Review and law clerk to Justice Robert Jackson, he had a pedigree that dazzled the president. After making his last-minute decision, Nixon instructed the attorney general to “be sure to emphasize to all the southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is.”
He was. The nomination that almost didn’t happen proved to be one of Nixon’s most consequential acts as president. Rehnquist, who was born in 1924 and died in 2005, ended up serving on the Court for thirty-three years, far longer than any other Nixon appointee; he spent nineteen of those years as chief justice. When Rehnquist joined the Court, he was easily its most conservative member; by the time of his death in office, there were two justices to the right of him (Antonin Scalia and Clarence Thomas), and two more fitting out their robes (John Roberts and Samuel Alito). Rehnquist therefore serves at the very least as a valuable point of reference—a conservative stalwart who nevertheless migrated through attrition from the far right to the middle right of the Supreme Court, a journey that demonstrates just how extreme the Court’s conservative wing has become. Yet it would be a grave mistake to view Rehnquist as nothing more than a vote, a dogma and a pair of chunky glasses. He was enormously influential and, like his former boss Barry Goldwater, changed the parameters of public conversation about the role of government in the United States. Through tenacity, patience and at times guile, he channeled fringe positions into mainstream judicial conservatism.
John Jenkins, a journalist who in 1985 wrote a major profile of Rehnquist for The New York Times Magazine, has published what purports to be “the first full biography” of the late chief justice, The Partisan. The book doesn’t even try to live up to its billing. Any biography of a judge must confront not only the life but also the work. Jenkins writes here and there about Rehnquist’s jurisprudence, but never at any length or with much analysis; mainly, he snipes in one-off lines that Rehnquist reached politically conservative—and therefore incorrect—results. The vast majority of The Partisan covers other facets of Rehnquist’s life. Many of Jenkins’s explorations are fascinating and break new ground; they fill out the profile of an enormously powerful and significant man. But a complete scholarly biography that pinpoints Rehnquist’s legacy as chief justice must await another day.
The Partisan is a polemic rather than a disinterested study. Jenkins is consistently hostile to Rehnquist, calling him a judicial nihilist and writing hardly a civil word in his favor. Many of his criticisms seem justified, although they feel less trustworthy for their predictability. Rehnquist was, after all, a results-driven justice with unapologetically far-right views; his life’s work was to turn the Bill of Rights into a thinner, flimsier document. He was a man of petty bigotries, calling immigrant children “wetbacks” among his brethren and fighting integration at every turn. Rehnquist aggressively pushed to scale back what he perceived to be the excesses of the Warren Court, in the process undermining the rights of the criminally accused, immigrants, women, blacks, gays and the disabled. He was one of the most consistent votes in favor of capital punishment on a Court not known for its sympathy toward criminals. As Professor Geoffrey Stone demonstrated in an empirical analysis in 2006, Rehnquist was, “by an impressive margin, the member of the Supreme Court least likely to invalidate a law as violating ‘the freedom of speech, or of the press.’” And, of course, Rehnquist led the Court in the “federalism revolution” by protecting the states from lawsuits and by reducing the national government’s power—often when it was trying to do something progressive.