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Chief Justice, 80, Led Court on a Conservative Path

September 04, 2005|David G. Savage | Times Staff Writer

Rehnquist joined the Supreme Court in January 1972 near the end of its era of liberal activism. Then only 47, he was the fourth and final appointee of President Nixon and the one who most lived up to Nixon's pledge to name law-and-order conservatives to the bench.

Rehnquist had been there only a few weeks when the justices, over his dissent, voted to strike down the death penalty as unconstitutional. Just a few months later, the court, again over his dissent, voted to strike down all the laws banning abortion in Roe vs. Wade.

This was also the era when federal judges, following the Supreme Court's mandate, were ordering busing to desegregate the public schools.

Rehnquist was a frequent dissenter. His clerks dubbed him the "Lone Ranger," a proud fighter for losing causes.

Early Distinction

From the start, Rehnquist distinguished himself, not just for having strong conservative views, but as possessing exceptional legal ability and an affable manner that endeared him to his colleagues.

He was tall and gawky and wore long sideburns. And even by the standards of the mid-1970s, he sported odd attire, including loud ties with sports jackets that had elbow patches. In the halls, he looked more like a small-college history professor than a justice of the Supreme Court.

His dissents were eye-catching, too. He called Thomas Jefferson's notion of a "wall of separation" between church and state a "misguided metaphor based on bad history." Rehnquist said the 1st Amendment only forbids the government to proclaim a national church.

When the court interpreted the Civil Rights Act to allow employers to use "affirmative" discrimination in favor of minorities, Rehnquist called the majority's opinion "a tour de force reminiscent not of jurists such as [Oliver Wendell] Holmes or [Charles Evans] Hughes, but of escape artists such as Houdini."

In 1986, the dismayed dissenter became the chief justice when Warren E. Burger, a Nixon appointee who had led a fractured court for 17 years, announced he was retiring, and President Reagan promoted Rehnquist to take his place. Senate Democrats contended that Rehnquist was too conservative and "out of the mainstream," but he won confirmation on a 65-33 vote.

As chief justice, Rehnquist pressed to give states more leeway to enforce their laws. The court regularly rejected challenges to the death penalty and made it easier for states to carry out executions.

However, Rehnquist failed to win a majority to overturn the abortion right affirmed in Roe vs. Wade. In 1989, he wrote an opinion in a Missouri case saying states could enact laws to protect "potential human life." But at the last minute, O'Connor refused to sign his opinion, leaving the chief justice with only a four-member plurality of the court.

Three years later, Rehnquist looked to have a solid majority to overturn the abortion right. In the interim, two liberals, Justices William J. Brennan and Thurgood Marshall, had retired, and they were replaced by appointees of President George H.W. Bush: David H. Souter and Clarence Thomas.

But when a Pennsylvania abortion case came before the court, the justices handed down a surprise 5-4 ruling that again affirmed the abortion right. Justice Anthony M. Kennedy, who agreed with Rehnquist in 1989, joined Souter and O'Connor in upholding Roe vs. Wade.

In 1997, however, Rehnquist spoke for the court in rejecting the idea of a constitutional "right to die." If the laws on assisted suicide are to be changed, they must be changed in response to public pressure on elected officials, he said.

He felt the issue needed to be dealt with at the state level through the legislative process.

"Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physicianassisted suicide. Our holding permits this debate to continue, as it should in a democratic society," Rehnquist wrote. Since then, only Oregon has permitted doctors to aid terminally ill people in ending their lives.

Beyond judicial restraint, the other great theme of Rehnquist's career was restoring the Constitution's balance of power. In a series of rulings, Rehnquist won a narrow majority to limit the reach of Congress and to shield the states from federal laws and lawsuits.

In 1995, Rehnquist wrote an opinion that struck down the federal law against gun possession in a school zone on the grounds that Congress had exceeded its authority to make laws. The Constitution says Congress has the power to "regulate commerce," and mere possession of a gun is not commerce, the chief justice said.

"We start with first principles. The Constitution created a federal government [whose] powers are few and defined. Those which are to remain in the state governments are numerous and indefinite," Rehnquist said, citing the words of James Madison.

This distinction must be preserved, he added, if American law is going to separate what is "truly national from what is truly local."

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