William Rehnquist

Obituary

Sep 8th 2005
From The Economist print edition

William Rehnquist, America's chief justice, died on September 3rd, aged 80

LUCKILY for him, William Rehnquist did some of his war service in Casablanca. As a weather observer, his job was to plot synoptic maps and launch wind balloons into the deep blue North African sky. Weather intrigued him, he used to say, because although it could be forecast with some accuracy, it could not be changed.

You could argue, however, that in his 33 years on the Supreme Court Justice Rehnquist came as close as anyone to changing the prevailing climate in the United States. From a solitary storm-front, rumbling away by himself against the liberalism, activism and soft-heartedness of the court Earl Warren had established in the 1960s, he gradually came to tower over a conservative consensus not only in the court, but in the country. By his death—from thyroid cancer, through which he was still working—four other members of the nine-member court were prepared, usually, to go along with his opinions. Justice Rehnquist's tenacity and industry thus enabled him to set his stamp on a large body of law.

He showed, too—surprisingly for a big, shambling man who liked boaters and loud ties—a capacity to be subtle, even invisible, in the making of argument. He was never a table-thumping hardliner like his colleague Antonin Scalia, preferring broad compromise if he could get it. The routine 5-4 split in the Rehnquist court bothered him, because he thought it dented the credibility of the law in general.

His own legal philosophy could be summed up fairly simply. He believed in pluralistic government, and in particular that power should be devolved from the federal government to the states. (The Rehnquist court restored to view, and to great effect, the commerce clause of the constitution, rolling back laws passed by Congress on the pretext of regulating inter-state trade.) He had no respect for the burgeoning discovery of individual rights in those bits of the constitution that guarantee due process and equal protection of the laws. He believed that judges should be lawyers, not policymakers.

In most of those opinions he had not changed since his appearance, in pink shirt and luxuriant sideburns, in Richard Nixon's Justice Department in 1969. He had imbibed his ideas from the anti-socialist works of Friedrich von Hayek, as well as from the middle-class suburban air of Shorewood, Wisconsin, where he had grown up. Stanford and Harvard made no impression on his views. Indeed, when he met liberalism, it merely confirmed his dislike of it. When, as assistant attorney-general in the Office of Legal Counsel, he presented to the court the Nixon administration's enthusiastic views on wiretapping, police immunity and pre-trial detention, he shared them all.

Richard Nixon picked him for the court in 1971. He was so close to the administration that he recused himself from the unanimous vote, in 1974, to force the president to give up the Watergate tapes. But Nixon hardly knew him, calling him “Renchburg” and “that clown”. Justice Rehnquist's lonely path in his early years on the court—one of only two dissenters, for example, in the Roe v Wade ruling that legalised abortion—sprang from his own loathing of justices “making the constitution say what they wanted it to say.”

Four rows of braid

His confirmation hearings for both associate justice and chief justice (at Ronald Reagan's behest, in 1986) were some of the stormiest seen on Capitol Hill. Each time, more than a quarter of the senators rejected him. Opponents discovered that he had opposed desegregation of schools and public housing in Arizona. Most damagingly, they turned up a 1952 memorandum in which he supported the “separate but equal” Plessy ruling of 1896, which had established segregation. Justice Rehnquist insisted these were not his views, but those of Justice Robert Jackson for whom he was clerking at the time. Few believed him.

As chief justice, however, he put his name to some liberal opinions: for gay rights, for free speech and in support of Miranda, the right to remain silent. The key to his flexibility, beyond his care for consensus, was his conviction that judges were not all-wise, but fallible sharers in the work of government. In 1995 he suddenly adorned his black robe with four rows of gold braid, thus presiding splendidly over the impeachment trial of Bill Clinton four years later. As he hoped, it made him look like the Lord Chancellor from Gilbert and Sullivan's “Iolanthe”. “The Law is the true embodiment / Of everything that's excellent”, sang that worthy, “and I, my Lords, embody the Law.” Justice Rehnquist never took himself so seriously.

Almost the last glimpse the public had of him was in January this year, when he administered the oath of office to George Bush. The president had come to the White House, in 2001, only because Justice Rehnquist had written the majority opinion which had, at last, stopped the Florida recounts. A Republican chief justice, it seemed, had picked the president, and half America had been appalled. Now, in 2005, Mr Bush had been re-elected by a solid majority of Americans happy with his conservatism. And Justice Rehnquist—though bareheaded and ill, pitifully underclad for the cold, with his tracheotomy tube wobbling at his throat—was basking in the climate he had helped to create.

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