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William H. Rehnquist: 1924-2005

Legacy

The chief justice changed the court with his management skills and down-to-earth style.

By BILL ADAIR, Times Washington Bureau Chief
Published September 4, 2005

WASHINGTON - When Richard Nixon chose William Rehnquist for the U.S. Supreme Court, the president had difficulty remembering his name. In a conversation with aides, Nixon called him "Renchburg." The president seemed bewildered by Chief Justice Rehnquist's bright shirts, loud ties and bushy sideburns and once described him as a "clown."

On the court, Chief Justice Rehnquist became a dependable conservative. Early in his tenure, he so often was the only dissenting vote that he was known as the "Lone Ranger." But once he became chief justice in 1986 and was joined by like-minded Justices Antonin Scalia and Clarence Thomas, the court gradually moved his way.

Chief Justice Rehnquist died Saturday night at his home in Arlington, Va.

His court will be remembered for a mix of decisions that were slightly right of center. Some rulings pleased conservatives, such as the cases on school vouchers and police powers, but liberals liked the decisions on gay rights and flag burning.

"It's been a conservative court," said University of Tulsa law professor Paul Finkelman. "But it certainly hasn't been the conservative court that liberals feared - or conservatives wanted."

Chief Justice Rehnquist earned high marks for his affability, his management skills and his down-to-earth style. He was the nation's highest-ranking judge, but he drove a Volkswagen and bought his own groceries. He was one of the few Washington power brokers who wore Hush Puppies. At lunch, he usually had a cheeseburger (always rare), a Miller Lite and then smoked a cigarette (but just one).

Richard Garnett, a Notre Dame law professor who was a clerk for Chief Justice Rehnquist, said he was not interested in the trappings of his office.

"There are no airs about this guy, no pretension," Garnett said.

Flipping a coin

Chief Justice Rehnquist, the son of a paper salesman in a Milwaukee suburb, always had big goals, even as a boy. When an elementary teacher asked his career plans, he replied, "I'm going to change the government."

During World War II, he was a weather observer for the Army Air Forces in North Africa. He said in a 2001 speech that he "was not a major contributor to the war effort," but his remarks revealed his deep respect for authority: "I, and millions like me, learned to obey orders, do what we were told."

He graduated from Stanford Law School - one of his classmates was Justice Sandra Day O'Connor - and got his first experience with the nation's highest court as a clerk for Justice Robert Jackson.

His wife, Nan, was a CIA employee who did not reveal where she worked until weeks after they were dating. When his clerkship ended, Chief Justice Rehnquist and his wife wanted to move to either Albuquerque, N.M., or Phoenix, so they flipped a coin. Phoenix it was.

He became active in Republican politics in Arizona. He was a sharp critic of liberal initiatives such as busing for school integration, and he supported Barry Goldwater for president. He attacked protesters as "new barbarians" and said "law and order will be preserved at whatever cost in individual liberties and rights."

When he was nominated to the court in 1971, liberals attacked him for those comments and a memo he wrote endorsing the "separate but equal" doctrine. Chief Justice Rehnquist said the ideas were Jackson's, not his.

Despite the sharp differences over his nomination, the Democratic-controlled Senate confirmed him 68-26. He won by a similar majority when President Ronald Reagan nominated him as chief justice.

"Nine scorpions in a bottle'

Before he became chief justice, the court's conferences often lasted hours. But since Chief Justice Rehnquist took over, they have been quick and efficient. The justices stated their views. Someone got assigned to write an opinion. They were done in time for lunch.

He liked efficiency and did not like to waste time, said Mary Cheh, a law professor at George Washington University.

Edward Lazarus, a former clerk to Justice Harry Blackmun and author of Closed Chambers, a rare book by a court insider, said the efficiency came at a price. The justices of the Rehnquist court did not try to persuade each other. They merely stated their opinions.

"The conference itself is not a place of debate," Lazarus said. "They don't engage across the conference table."

But Garnett, the former Rehnquist clerk, said his former boss dramatically improved relations between the justices. "Before Chief Justice Rehnquist, it really was like nine scorpions in a bottle."

Boyden Gray, the White House counsel under former President George Bush, said relations are very collegial.

"He's done a very good job of running a court," Gray said. "They all get along. I think they're very comfortable with each other."

Despite the warm relations, the Rehnquist court - like the nation - was often deeply divided. Many of its important rulings were 5-4.

Chief Justice Rehnquist consistently had one of the most conservative records, but Justices O'Connor and Anthony Kennedy were the swing votes who sometimes sided with the liberal justices.

Lazarus said the Rehnquist court was surprisingly balanced.

"O'Connor and Kennedy kept them from achieving the ultimate conservative goals - and even occasionally moved the court to the left," he said.

Jeffrey Rosen, a law professor at George Washington University, wrote in the Atlantic Monthly that Chief Justice Rehnquist was more moderate than either side realizes: "With exceptional efficiency and amiability, he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country."

Chief Justice Rehnquist was not the persuasive force that Chief Justice Earl Warren was in the 1960s. Chief Justice Rehnquist made little effort to persuade the other justices because he believed people rarely change their minds.

But Cheh says he made some deft compromises. If he didn't have the votes to endorse his view, he wrote a more tempered opinion that could get more support.

"If he can't get the big result that he wants, he is happy to nibble away," she said. "He's very shrewd."

Stripes on his robe

Chief Justice Rehnquist's biggest legacies are federalism and law-and-order cases. Since he became chief justice, the court often supported state's rights.

Gray said the Rehnquist court "halted the march toward more centralization of the federal government."

Garnett said Chief Justice Rehnquist "really did dramatically reshape the conversation about federal power."

But in Bush vs. Gore, the Rehnquist court blocked the Florida recount in the 2000 presidential election, a move that enabled George W. Bush to become president. Conservatives said the court appropriately invoked the 14th Amendment's equal protection clause for that case, but liberals said the decision was inconsistent with the court's commitment to state's rights.

Other cases were a disappointment to conservatives. Despite having seven of the nine justices appointed by Republican presidents, the Rehnquist court did not overturn Roe vs. Wade, the landmark abortion rights decision.

Many conservatives were unhappy with two gay rights cases and a flag-burning case. The court struck down antisodomy laws in the landmark 2003 case Lawrence vs. Texas and in 1996 ruled against an amendment to the Colorado constitution that prevented cities and counties from passing laws that protect gay people. Chief Justice Rehnquist dissented in both cases, but O'Connor and Kennedy sided with the liberals.

"The bottom line is that Rehnquist had to play the hand he was dealt," said Neal Devins, a law professor at the College of William and Mary.

Besides his legal contributions, Chief Justice Rehnquist is renowned for adding gold stripes to the sleeves of his robe, a practice that seems to conflict with his down-to-earth persona. It has been widely reported that the inspiration came from Lord Chancellor, a character in a Gilbert and Sullivan operetta who has to settle a dispute among a colony of fairies.

But Garnett, the former clerk, says the inspiration was more mundane: Chief Justice Rehnquist went to a conference of chief justices from other countries and he found their robes better-looking than his.

Information from the Supreme Court Historical Society, Associated Press Biographical Service and New York Times was used in this report. Times Washington bureau chief Bill Adair can be reached at 202 463-0575 or adair@sptimes.com

[Last modified September 4, 2005, 01:22:09]


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