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William Rehnquist

5 September 2005

The Times

 

William Rehnquist, Chief Justice of the US Supreme Court, was born on October 1, 1924. He died on September 3, 2005, aged 80.

 

Long-serving Chief Justice of the US Supreme Court who stuck firmly to the rule of law and his belief in state autonomy.

 

William Rehnquist was a lone, right-wing dissenter who gradually shaped the United States Supreme Court into a model that better reflected his own conservative views.

During 34 years' membership of the Bench and almost two decades presiding as Chief Justice, Rehnquist helped to redefine the boundaries of American society and the role of the court within it.

 

Recently he presided over the impeachment of President Clinton and the Bush v Gore case, which decided the 2000 election in favour of George W. Bush.

Judges on the nine-seat Supreme Court are named for life. Yet Rehnquist steadily extended the influence of the conservative justices, eroding the jurisdiction of the federal courts in favour of the rights of individual states -a process that he, and other "originalists", regarded as a restoration of the constitutional status quo ante. His interpretation of the Constitution was based on a strict construction of its articles and of congressional statutes, as well as on judicial restraint. Unlike several predecessors, he did not regard the Supreme Court as a body whose raison d'etre was to rewrite those laws with which it did not agree.

 

Moreover, he disliked the federal courts' eagerness to reinterpret the Constitution for the good of the people, and the imposition of these ideas on the states.

He streamlined the court's agenda, reducing its caseload while improving the quality and cogency of its judgments and thus deterring many appeals that would have arisen from more ambiguous decisions.

 

Although a man of firm conservative convictions, he nonetheless matured from something of a firebrand as a young justice to become a measured leader of the court.

William Hubbs Rehnquist was born in Milwaukee and attended high school there before enrolling at Stanford University, California. His studies were interrupted by wartime service in the US Army Air Force and he received his BA in 1948. There followed a year at Harvard, where he received a masters degree in political science, and a spell at Stanford Law School, from which he graduated as valedictorian -or first in his class -in 1952.

He began clerking for one of the conservatives of the Supreme Court, Justice Robert H. Jackson but, after 18 months in that post, entered private practice in Phoenix, Arizona. After three years he set up a partnership with another young lawyer, Keith W. Ragan, in 1956.

 

Arizona in the late 1950s was a hotbed of tinder-dry conservatism, which eventually coalesced around the 1964 Republican presidential bid of Senator Barry Goldwater. Rehnquist became active in the Arizona Republican Party and was outspoken in his criticism of the liberal Supreme Court, headed by Chief Justice Earl Warren. Drawing on his experience as an apprentice within the institution, he blamed the predominantly left-wing clerks who surrounded the justices, as much as the justices themselves, since it was they who prepared the background briefing material.

 

His partnership with Ragan was dissolved in 1957 and he served as a special state prosecutor of corrupt state officials. He formed another partnership in 1960, with a former Internal Revenue Service trial lawyer.

 

Throughout the 1960s Rehnquist consolidated his political reputation and befriended Goldwater and Richard G. Kleindienst, who ran the Goldwater presidential campaign and Nixon's in 1968. When Kleindienst was rewarded with the post of deputy attorney- general in the Nixon Administration, he in turn extended his patronage to Rehnquist, who became assistant attorney- general in charge of the Office of Legal Counsel.

 

Although the post now has a high political profile, it was, at the time of Rehnquist's appointment, something of a backwater in the Department of Justice; but Rehnquist set about transforming it into a mouthpiece for the Administration, defending the mass arrest of peaceful demonstrators in Washington, presidential orders to keep certain documents secret, and the constitutionality of wiretapping and electronic surveillance. However, when Nixon came to select two new candidates for the Supreme Court bench in 1971, he submitted six other names for American Bar Association approval -nominations that were regarded as less problematic before choosing Rehnquist.

 

Indeed, his nomination was energetically opposed by civil rights advocates. They alleged that during his time in Phoenix, Rehnquist had been against a public accommodations law (to prevent discrimination in public places) and an integration plan for local high schools. More seriously, it was alleged that he had obstructed black and Mexican-American voters in Phoenix elections and that he was a member of extremist organisations. Testifying before the Senate judiciary committee, Rehnquist firmly repudiated the charges of interfering with voters and belonging to extremist groups. As far as civil rights issues were concerned, he explained that he had changed his mind about public accommodations.

 

The committee endorsed him by a vote of 12-4, but the opposition was resumed on the Senate floor when a 1952 memo he had written while clerking for Justice Jackson was unearthed. This advocated that the "separate but equal" doctrine should not be overturned so as to permit desegregation of public schools.

Rehnquist explained that the memo was prepared by him as a statement of Jackson's views, not his own. This was perhaps disingenuous for in 1985 Rehnquist conceded: "I don't know that my views have changed much since that time". This is not to suggest that Rehnquist was in favour of segregation, but that he regarded the federal encroachment upon states' rights, then as later, as pernicious and unconstitutional.

 

During his first years on the Supreme Court bench, Rehnquist was often a lone voice of dissent, despite the presence of three other Republican appointees. He insisted that the Fourteenth Amendment, which guaranteed equal protection to racial minorities, should not be extended to embrace other aggrieved categories, such as illegitimate children, resident aliens and women.

 

In 1975 he staked his claim as leader of the conservative wing of the court. While the majority sought to implement what it regarded as desirable social goals without what Rehnquist considered adequate support from the Constitution or from congressional statutes, he produced rigorous dissenting judgments which formed the basis, once the composition of the court had shifted to the right, for later majority findings.

 

In the area of the criminal law, Rehnquist's stated aim was "to call a halt to a number of the sweeping rulings of the Warren court". Decisions in the 1970s and 1980s won for law enforcement the right to investigate crime untrammelled by constitutional niceties: no longer would defendants automatically find succour in police officers' procedural errors.

There was an outcry from liberals when President Reagan appointed Rehnquist to lead the court in 1986, with Senator Edward Kennedy reviving the objections to his original nomination as a justice and branding him a racist.

 

In the field of First Amendment (freedom of expression) rights, he frequently found himself in the minority, believing that his fellow justices were too strict in their interpretation of objections to school prayer; while on abortion, he made some inroads into the area fenced off by Roe v Wade (1973). His own view was that the court had erred in that crucial decision establishing a woman's right to abortion by founding it on the constitutional right to privacy.

 

As a strict constructionist as well as a conservative, he was prepared to take the ideological rough with the smooth. He endorsed the right of states to enshrine rights in their own constitutions that go beyond those guaranteed by the federal Constitution. Nor was Rehnquist afraid to go against the Reagan Administration when it challenged the latitude and independence of special prosecutors in investigating abuses of executive power.

In general, though, the Republican administrations from 1980 to 1992 had good reason to praise Rehnquist's stewardship of the court, just as he had good reason to praise their record of appointing federal judges sympathetic to the notion of judicial restraint. By the early 1990s the lower federal courts were dominated by Republican appointees and were making fewer decisions that warranted referral to the Supreme Court on the ground that they restricted states' rights.

 

For several years Rehnquist wrote more of the criminal law rulings than was customary for the chief justice. His early rulings were regarded as models of lucid reasoning, laced with references that showed his wide learning, although he later adopted a drier approach as Justice Antonin Scalia took on the role of the court's textual stylist.

 

The Rehnquist court reduced the ability of Congress to control the states, and at the same time diminished the role of the federal courts in overruling state courts. Yet in its later years another justice, Anthony Kennedy, emerged as the figure whose shifting position led the majority, upholding the court's position on abortion rights and overturning a Colorado state amendment which restricted the civil rights of homosexuals. Still, it was enough for Rehnquist to know that he had been instrumental in reversing the rights revolution of the 1960s, which had permitted federal law to encroach on states' rights.

Rehnquist selected the three conservative judges who appointed Kenneth Starr as independent counsel in the Clinton impeachment hearings. Many criticised what they predicted would be a deeply partisan effort by the Republican right to remove a Democratic president, yet Rehnquist was a stickler for law over loyalties. In his historical work Grand Inquests: The Historical Impeachments of Justice Samuel Chase and President Andrew Johnson (1992), he had argued that the failure to impeach presidents on the last two occasions in US history had made the system stronger. Even the left-wing Nation conceded that "the Chief Justice is likely to run as fair a hearing as possible". In the end, he influenced the proceedings as little as possible. Borrowing a line from Gilbert and Sullivan's Iolanthe, he told a television interviewer that "I did nothing in particular and I did it very well".

 

The Supreme Court played a key role in George W. Bush's election victory in December 2000 when it issued a stay of the Florida Supreme Court's ruling that the state's vote be manually recounted, effectively giving the election to the Republicans. Many Americans believed that the decision owed more to politics than the law, although to cite Rehnquist as an accomplice in a "stolen election" was, apart from anything else, to overstate his influence on the court. The body as a whole was never as conservative as Rehnquist himself, and in fact held four judges whose outlook was thought to be broadly, and in some cases crusadingly, liberal.

 

Even at Rehnquist's apogee, the court had little detrimental impact on key civil liberty issues as gay rights or a woman's right to abortion.

When thyroid cancer was diagnosed, Rehnquist continued to work. Many were moved when, scarcely able to stand unassisted, he insisted on performing the ceremonial duty of swearing in the president in January. His death comes four months after the retirement of Justice Sandra Day O'Connor: both events are likely to precipitate a major realignment of the nation's highest court, as well as bitter political warfare.

His wife Natalie died in 1991. He is survived by two daughters and a son.

 

 

OBITUARIES

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Oscar Beuselinck

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Clarence Marion Kelley

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Lew Wasserman

The Times, 5 June 2002

 

Al Hirschfeld

The Times, 22 January 2003

 

Strom Thurmond

The Times, 28 June 2003

 

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The Times, 24 August 2005

 

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The Times, 5 September 2005

 

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The Times, 16 October 2012

 

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The Times, 24 December 2012

 

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