The Magazine

Farewell to the Chief

From the September 26, 2005 issue: William H. Rehnquist, 1924-2005.

Sep 19, 2005, Vol. 11, No. 01 • By TERRY EASTLAND
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IN THE Federalist, James Madison observed that judges are "shoots from the executive stock." With this phrase, Madison was making a point about where, in a government of separated powers, judges come from; and of course, the answer is the executive, since the Constitution plainly sets forth that it is the president who has the authority to select judges.

True, the Senate must approve a president's nominees, or else none can have life tenure. But the constitutional structure is such that no one can become a judge unless the president chooses the person. Judges are shoots from the executive stock only, and so it is that a president can try, through his "shoots," to alter the jurisprudential direction of the courts--the Supreme Court included.

This point compels our attention as President Bush moves to fill two seats on the Court, the ones held by the late Chief Justice William Rehnquist and Associate Justice Sandra Day O'Connor. Bush hasn't had a vacancy on his lengthening watch until now, but he has consistently stated his intention to appoint to the Court (and the courts below) judicial conservatives, citing Antonin Scalia and Clarence Thomas as examples of the kind of jurists he admires. Bush isn't the only president in the modern era to make that kind of promise. Richard Nixon was the first to do so, and then came Ronald Reagan, followed by Bush's father, George H.W. Bush.

As this list of GOP presidents suggests, the Republican party has, for four decades, been the party of judicial conservatism, rhetorically at least. But of the nine justices these Republican presidents appointed--ten if you include John Paul Stevens, named by the fourth GOP president during that period, the caretaker Gerald Ford--only three can fairly be described, without substantial qualification, as judicial conservatives. They are Scalia, Thomas, and Rehnquist, the nation's 16th chief justice, who, stricken with thyroid cancer, died on September 3.

Rehnquist was one of four justices Richard Nixon appointed from 1969 to 1971. In his 1968 campaign for the presidency Nixon sharply criticized the Warren Court, especially its criminal-law decisions, and called for the appointment of "strict constructionists" who would interpret the law and not see themselves as "superlegislators with a free hand to impose their social and political viewpoints upon the American people." But among his appointees, only the redoubtable Rehnquist proved unambiguously conservative, and one--Harry Blackmun, author of the Court's opinion in Roe v. Wade--compiled a record celebrated by liberals.

Rehnquist stands out in many ways, most notably for a judicial philosophy that he brought to the Court fully developed, and adhered to with few exceptions throughout his long career, first as an associate justice and then, from 1986 to 2005, as the chief justice. Having clerked for Justice Robert Jackson, and written critically about the Supreme Court as early as 1957, Rehnquist formulated his approach to judging against the legacies of the New Deal and the Warren Court. The federal government was understood to have virtually unlimited power, with the states functioning essentially as subdivisions. Federalism, the distribution of power between the national government and the states that the Framers understood as a protection for liberty, had ceased to be a vital principle. The courts themselves were regarded as possessing authority to improve on the legislative choices of the people by divining and enforcing rights not found in the text or history of the Constitution.

Rehnquist's tenure was effectively a dissent from those understandings. He made his views known early on. In 1976, writing for a five-justice majority in National League of Cities v. Usery, Rehnquist found that a 1974 law extending provisions of the Fair Labor Standards Act to state and municipal employees interfered with state sovereignty and thus violated the Tenth Amendment, dormant since the New Deal. Three years earlier, in Roe v. Wade, when the Burger Court built on Warren Court precedents by declaring a constitutional right to abortion, a dissenting Rehnquist wrote that the majority had not followed the intent of the Constitution but engaged in "judicial legislation."