It’s taken a cancerous tumor to do what the Kerry campaign would not: place the US Supreme Court at the center of the presidential campaign’s final days. Chief Justice William Rehnquist’s weekend tracheotomy may or may not compromise his ability to lead the Court (the man’s age and the unusually aggressive medical procedure he underwent may mean his prognosis isn’t as routine as his back-to-work-in-a-week press statement suggests). But if nothing else, Rehnquist’s illness concentrates the feverish political mind: not just on the next administration’s Court appointments but on the far more immediate possibility of a constitutional crisis in the aftermath of this contentious election.
The obvious point about Rehnquist’s illness is that it reminds voters of Bush v. Gore, of Roe v. Wade, of Miranda rights and the death penalty and affirmative action. But these emotionally charged matters obscure something else just as important: William Rehnquist is in many crucial ways the judicial godfather of the Bush Administration and today’s Republican right. Even more than that of Ronald Reagan, Rehnquist’s biography is a road map to the fundamental ideological divides of the past half-century, and it is Rehnquist who more than any other individual erected, from the 1950s onward, the legal scaffolding around which the Bush Administration has built its domestic politics and foreign policy. In a real sense, this coming election is a referendum on William Rehnquist as much as it is on George W. Bush.
Do I exaggerate? Consider where the Chief Justice’s political biography begins: as a clerk to Justice Robert Jackson at one of the defining moments of American law, the arguments over Brown v. Board of Education. Rehnquist crafted memos defending segregation. The same young clerk egged on the executions of Julius and Ethel Rosenberg, sneering at Justices whom he called “old women” for being uneasy about pulling the switch. These two issues–obstructing the enforcement of civil rights and aggressively advancing capital punishment–became virtual obsessions with Rehnquist. Beginning in Richard Nixon’s Justice Department and since his nomination to the Supreme Court in 1971, he has labored mightily and with great success to hold aloft these two emotional issues as rallying points for right-wing legal scholars and politicians alike–and no presidential candidate in history relied so literally upon these two issues as the George W. Bush of 2000, who proved his manhood by aggressive executions in Texas and won his office by disenfranchising African-American voters in Florida.
The fact is that no administration, not even Reagan’s, has so depended upon Rehnquist’s cumulative legacy of memos, tactics, rulings and protégés as the Bush White House. Touch any live-wire issue and sooner or later the current traces back to his office door. Consider those Florida voters. Decades before the 2000 election, Rehnquist as a politically ambitious lawyer pioneered finely honed challenges to registered African-Americans at Arizona polling places. The excesses of the Patriot Act and John Ashcroft’s Justice Department? Follow the line back to the early Nixon Administration, when then-Assistant Attorney General Rehnquist provided the first contemporary legal scaffolding for political surveillance, wiretaps and secret detention plans, and for his later Supreme Court decisions unleashing police powers. Corporate scandals? The Federalist Society, born under Rehnquist’s patronage in 1982, produced not just Clarence Thomas but a generation of antiregulatory lawyers brought in by Bush to the Environmental Protection Agency and other agencies. Where did the Bush White House turn to find executive-branch authority for imprisonment and torture in Iraq and Afghanistan? To Rehnquist’s 1970 memos in support of the invasion of neutral Cambodia. The pathway to Bush v. Gore was tiled with Rehnquist’s briefs, memos and rulings.
Will, after all, Rehnquist’s illness provoke a constitutional crisis? The reality is that the country has been in a constitutional crisis ever since Bush v. Gore, a crisis accelerated by the Bush Administration’s opportunistic response to September 11. What Bush and his team have understood so clearly is that the same fear of disorder and crime that powered Rehnquist’s career could be resuscitated under the guise of fighting terrorism, and with the same result: radically expanding the power of the executive branch generally and the imperial presidency in particular. What binds Bush and Rehnquist so closely is not anything that should properly be called conservative but an aggressive commitment to dismantling the federal government’s enforcement of civil rights and civil liberties while expanding the state’s power to police and punish.
I point all this out not to feel clever, and certainly not to wish an elderly cancer patient ill. Rather, Chief Justice Rehnquist’s brush with malignancy is a reminder of a Bush agenda that is older and deeper and more enduring than the alarms of September 11 or the agonizing catastrophes of Iraq. The question is not whether this election will provoke a constitutional crisis but whether it will resolve the crisis that has been brewing for years.