Remembering Rehnquist

His contributions to the judiciary and America at large

By Rohit Joy
From the October 2005 Print Edition

On September 3, Chief Justice William Rehnquist lost his battle with thyroid cancer. Americans will forever remember his fight to restore the Supreme Court to the role envisioned for it by our Founding Fathers. He interpreted each clause in the Constitution according to its original meaning when ratified, rather than imposing his personal ideology on the American people.

For now, let us avoid a litany of personal biographical accomplishments, as we can find that anywhere. Let’s just take a page to honor this great man’s impact and stature.

What did Rehnquist mean to the Supreme Court? Quite simply and profoundly, restraint. After years and years of activism by a very liberal Warren court, President Richard Nixon appointed Rehnquist in the hope that judicial activism would slow, and preferably halt. Right out of the gate, Rehnquist and his court associates were tested, and he held up his end of the bargain.

His first landmark case was Roe v. Wade, in which he was one of only two justices — the other was Byron White — to dissent from the majority opinion making abortion a constitutional “right.” The majority argued that abortion must be legalized because of the “right to privacy” in the Constitution, but Rehnquist maintained in his dissent that no such right exists. Rehnquist stated that “to reach its result, the court necessarily has had to find within the scope of the 14th Amendment a right that was apparently completely unknown to the drafters of the amendment.”

There is no need to give a thorough legal exploration of Roe, though. The importance here is that Rehnquist made his mark immediately, giving concretion and legitimacy to a new standard for jurisprudence, even in a losing cause.

In the years that followed, Rehnquist often found himself to be the lone dissenter in Supreme Court cases, and the only advocate for judicial discipline. While the rest of the court increasingly intervened in policy areas such as school prayer and capital punishment, Rehnquist unfailingly dissented, maintaining that the judiciary was usurping too much power from the other branches of government. The court also affirmed more and more laws unconstitutionally expanding federal power during the 1970s, but Rehnquist continued to champion states’ rights under the Tenth Amendment.

Although Rehnquist’s ideas were initially unpopular among lawyers in the Washington establishment, they resonated with the growing grassroots conservative movement. The strength of this movement helped propel Ronald Reagan into the Oval Office in 1980. Reagan promised to fill Supreme Court vacancies with justices in Rehnquist’s mold, and while he was not completely successful, he did appoint Antonin Scalia when Rehnquist succeeded Warren Burger as chief justice. Scalia has largely shared Rehnquist’s views and furthered the acceptance of a limited and ferocious judiciary. A few years later, President George H.W. Bush appointed Clarence Thomas, who has generally sided with Scalia and Rehnquist in important decisions.

Rehnquist, as the chief justice, suddenly found himself with newfound impact. His conservative views were no longer that of a loner shouting from the rough, but of a new type of judiciary, one which more often than not moved away from the activism of the past. Unlike before, his opinions were those of the majority a great number of times, and he made several small steps in restoring judicial restraint and states’ rights. One of his most notable opinions during the 1990s was that in United States v. Lopez, which nullified the Gun-Free School Zones Act of 1990. The primary argument in favor of upholding this law was that banning guns in school zones fell within Congress’s power to regulate interstate commerce. Rehnquist, on the other hand, wrote that “The Act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.”

Rehnquist’s opinion helped bring the scope of the Commerce Clause back toward its original meaning — that for Congress to have the power to regulate an activity it must be directly related to the trade or exchange of a good or service and cannot simply “involve” interstate commerce. Rehnquist’s impact on this and other cases of the like cannot be overstated. For more than 50 years, the court had been further and further expanding the Commerce Clause, allowing more and more government into our daily lives. For the first time since Herbert Hoover, the tide of government intervention was stemmed. It was Rehnquist who began and fostered that fundamental change.

Chief Justice Rehnquist made an invaluable contribution toward restoring a federal government of limited and enumerated powers, and a Supreme Court that interprets, not makes, law. While this mission is far from accomplished, and will require many more years of fighting, let every one of us take a moment to remember a truly great man who indefatigably gave it his all to preserve, protect, and defend the Constitution of the United States of America. God rest his soul.

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