Chief Justice William Rehnquist, 1924–2005: RIP

By Dave Andrusko

"It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist," said Walter Dellinger III, acting solicitor general under President Bill Clinton. "I think that there's just no question that he's of enormous historical importance. ...

"William H. Rehnquist is by nature quiet and humble," said Pepperdine's [University law professor Douglas] Kmiec. "His legacy is that he has shown us how to disagree with civility.

"Rehnquist won high marks for conducting the impeachment trial [of President Clinton] fairly, but characteristically he made light of his role. In a 2001 interview with PBS, Rehnquist borrowed a line from Gilbert & Sullivan again from Iolanthe to say of his impeachment trial performance, 'I did nothing in particular and I did it very well.' He continued, 'There wasn't much to do. I realized there wasn't much to do. And I didn't do it.'"   Tony Mauro, September 4 Legal Times

When William Rehnquist died, the indispensable C-SPAN re-aired an interview the late Chief Justice gave to Brian Lamb. All the characteristics that made him (in Walter Dellinger's words) "one of three dominant chief justices in American history" were on display.

They were discussing his book, The Supreme Court, which Justice Rehnquist somehow found time to research and write. He was sharp, witty, humble, funny, at ease with himself and the host, and a fount of historical knowledge.

The Supreme Court was well received by reviewers, praised for its insight, the simplicity of his writing style, and clarity. (I've read most of it and it makes for delightful reading.) These were also the virtues of the opinions the Chief Justice wrote. If only all justices loved brevity and precision as much.

The 80-year-old Rehnquist died last month after waging a determined and brave 10-month battle with thyroid cancer. He was first elevated to the High Court in 1972 and served as the 16th Chief Justice since 1986.

Pro-lifers know him best as one of the two dissenters in the 1973 case of Roe v. Wade. Twenty-seven years later, in Stenberg v. Carhart, he was still voting to allow elected lawmakers to decide how and when to protect the unborn.

He did likewise with respect to assisted suicide. As Clarke Forsythe pointed out, Justice Rehnquist "also wrote the opinion for the Court in the Glucksberg case in 1997 which upheld Washington State's prohibition on assisted suicide and left the issue of assisted suicide to the people through their representatives in the states. He noted that the states' laws prohibiting assisted suicide 'are longstanding expressions of the States' commitment to the protection and preservation of all human life.'"

Although Justice Blackmun's decision in Roe was an embarrassing mishmash, as devoid of coherence as it was persuasiveness, Justice Rehnquist began his dissent with courtesy and civility. In keeping with that gentle but persistent disagreement, Justice Rehnquist went on to comment how Justice Blackmun had relied on a dissenting opinion in a 1905 case. But, in fact, "the result [that case] reaches is more closely attuned to the majority opinion ...."

In that same paragraph, Rehnquist keenly observed that Blackmun's decision "to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment."

He went on, "The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' ... Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the 'right' to an abortion is not so universally accepted as the appellant would have us believe."

And then the clincher from Rehnquist, "To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment."

As NRLC noted in its initial response, "Rehnquist also dissented when the Court reaffirmed Roe in the 1992 case of Casey v. Planned Parenthood. In that dissent, he urged that the Court abandon Roe and thereby leave the matter in the hands of elected lawmakers. He chided the Court plurality for justifying the ruling on grounds of 'stare decisis' (precedent), writing, 'Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question. ... [Otherwise] the most outlandish constitutional decision could survive forever ....'"

Our prayers go out to Justice Rehnquist's family and friends.