Rehnquist Rules on His Terms

After a winter drive across the upper Midwest in an unheated Studebaker, a 27-year-old Stanford law graduate arrived at the Supreme Court on Feb. 1, 1952.

It was his first day as a law clerk, and his first glimpse of the grand white-marble facade of the high court.

But he was no ordinary rookie, awed and unsure of himself. William H. Rehnquist arrived with clear, conservative views on matters ranging from crime, the death penalty, civil rights and religion to the role of federal courts and the balance of power between the states and the national government.

Now, Rehnquist’s half-century career in the law is nearing an end. Many in Washington think that he will retire this month at the end of the court’s current term.

To look back at the memos he wrote as a law clerk is to see that he never wavered from principles he boldly stated more than 50 years ago.

“Ivory tower jurisprudence ... has weakened local law enforcement,” he wrote in a memo to his boss, Justice Robert H. Jackson, then world-famous as the chief prosecutor at the Nazi war crimes trial at Nuremberg. Criminals who are “guilty as sin” deserve no right to appeal in the federal courts, he said.

Civil rights laws struck him as unneeded. He expressed disdain for liberals and their “pathological search for discrimination” against blacks in the South.

When the justices briefly halted the executions of Julius and Ethel Rosenberg, who were convicted of espionage, Rehnquist wondered why “the highest court of the nation must behave like a bunch of old women every time they encounter the death penalty.”

He thought the Supreme Court far too liberal in 1952, the year before California Gov. Earl Warren was named chief justice and led the court in championing the cause of civil rights.

In time, the young law clerk would have a rare opportunity to write his views into law. Rehnquist has served 31 years on the Supreme Court -- the fourth-longest tenure of any justice named in the 20th century. For the last 17 years, he has been its chief justice, surpassing Warren’s tenure.

The chief justice will turn 79 in the fall and has said he wants to have his successor chosen by a Republican president. The GOP also controls the Senate, virtually assuring that President Bush’s nominee would have majority support.

Those facts have led many to believe that Rehnquist will retire this year, safely ahead of the next election.

Justice Sandra Day O’Connor, 73, Rehnquist’s classmate at Stanford, has also been the subject of retirement rumors, but she has told several people she has no plans to leave.

Although O’Connor’s departure could shift the court’s ideological balance, Rehnquist’s retirement would signal the end of an era in court history.

While the Warren court was renowned for expanding the rights of individuals, including crime suspects, prisoners, racial minorities and students, Rehnquist has led a conservative revival that restored authority to the police, prosecutors, prison wardens and school officials.

States again are free to execute murderers and, if they choose, to lock up even petty thieves for life terms.

Rehnquist has not always won. After President Reagan made him chief justice in 1986, he pressed for overturning the Roe vs. Wade decision on abortion and for dropping the strict ban on school-sponsored prayers. However, he fell short by one vote in 1992, when two other Reagan appointees -- Justices O’Connor and Anthony M. Kennedy -- joined a centrist majority to preserve those precedents.

But since then, the chief justice has wielded a 5-4 majority to win significant victories. He has revived the notion of states’ rights and shielded states from a series of federal antidiscrimination laws. He also struck down Clinton-era measures on gun control, cigarette regulations and sexual assaults.

In the best-known decision of his tenure, Bush vs. Gore, he used the same 5-4 majority to reverse the rulings of Florida’s highest state court and to block a hand recount in the disputed presidential election of 2000, thereby assuring a victory for George W. Bush.

Despite the retirement talk, the chief justice has voiced no enthusiasm for quitting. He has seen plenty of friends and court colleagues retire, and heard their regrets later.

Moreover, there is no talk that Rehnquist is slipping and needs to step down. On the bench, the chief justice remains sharp, quick-witted and fully in control of the fast-moving arguments. If a lawyer loosely cites a ruling from the early 20th century, Rehnquist often will interrupt to correct his account.

His colleagues, including those who disagree with him, laud his steady leadership. The chief justice is amiable and unpretentious as a person, and clear-thinking and straightforward as a lawyer.

Some of his former clerks who will gather for their annual Washington reunion in mid-June say they would not be surprised if Rehnquist stays on the job, awaiting an expected second Bush term.

Nonetheless, whether he retires soon or in two more years, his legacy in the law is nearly set.

From his first days at the court, Rehnquist insisted that federal courts should step back from hearing appeals from people who were convicted in the state courts, even if they say their constitutional rights were violated.

In December 1952, the high court received an appeal from two New York men who were picked up for questioning in the murder of a delivery truck driver. Five days later, they emerged from jail with broken ribs, facial bruises -- and a signed confession to the murder. Their lawyers compared their treatment to “the brutalities of the Elizabethan Age.”

Rehnquist advised Justice Jackson to turn away their appeal, since the men were “guilty as sin.”

But Jackson and the court agreed to hear the case of Stein vs. New York. The justices were uncertain how to handle belated claims that the police had used force to compel a confession.

In a second memo, Rehnquist urged Jackson to declare the use of force to be a “harmless error.”

In the end, Jackson and the court upheld the convictions of the two men, ruling that it could not be proved how the men suffered their bruises and broken bones. New York police denied beating them.

The three liberal dissenters denounced their colleagues for turning a blind eye to brutality. The “right of a person to be free from secret confinement and police bludgeoning” should be honored and upheld, said Justice Hugo Black.

In the next decade, Justice Black and the Warren court ruled in Miranda vs. Arizona that police must advise suspects of their rights before questioning them, and honor their right to refuse to talk.

Under Chief Justice Rehnquist, the court has gone partway to restoring the law to the version he favored in 1952.

In a 1991 opinion, Rehnquist said a coerced confession could be considered a “harmless error” when there was other strong evidence to show the defendant was guilty.

Rehnquist also won a new procedural rule that bars federal judges from second-guessing the handling of state crime cases, including death penalties.

In the 1960s, the liberal court had said state prisoners could file a writ of habeas corpus in federal courts to challenge their convictions as unconstitutional. This explains, for example, why California’s death row inmates are rarely executed, even when state prosecutors and the state Supreme Court clear the way for death sentences to be carried out. Defense lawyers can appeal to federal judges and the U.S. 9th Circuit Court of Appeals, leading to years of hearings.

In the late 1980s, Rehnquist wrote several opinions that closed the door to federal appeals of state cases. In 1996, Congress, newly under Republican control, adopted Rehnquist’s view and used it to revise the federal habeas corpus law.

Now, it says federal judges have no power to take up appeals from state inmates, except when the inmate can show the state court’s handling of his case was “clearly contrary to ... clearly established” standards as set by the U.S. Supreme Court. The message to federal judges is to stay out of state cases -- where more than 90% of crimes are resolved.

This change in the appeal rules could prove to be one of the most important legacies of the Rehnquist era. State judges are often chosen by the voters, and it is the rare judge who would campaign on the theme of upholding the rights of criminal defendants.

And the Rehnquist court is also backing away from the “right to remain silent” in the Miranda decision. Last month, the court ruled that the Constitution does not bar police from pressuring an unwilling person to talk.

In the area of religion, Rehnquist also thought the liberals were off-base.

In 1947, the high court had unanimously adopted Thomas Jefferson’s notion that the 1st Amendment erected a “wall of separation between church and state.” That doctrine led to rulings banning school-sponsored prayers and Bible readings in the 1960s and prohibitions against state aid to religious schools in the 1970s.

In one early opinion, Rehnquist said Thomas Jefferson was wrong. Separation of church and state is a “misleading metaphor based on bad history,” he said. While the 1st Amendment forbids the establishment of a state church, it does not bar support for religion in general, he maintained.

His best effort aside, Rehnquist has failed to break down the barrier to school-sponsored exercises that involve religion. With O’Connor and Kennedy casting the key votes, the court has struck down graduation prayers led by a cleric and student-led prayers over a school microphone.

However, Rehnquist has breached the barrier to taxpayer funds flowing to religious schools. Last year, he spoke for a 5-4 majority in upholding Ohio’s voucher law, which gives parents public money to send their children to religious schools.

One early Rehnquist memo on segregation nearly blocked his ascendancy to the Supreme Court.

In 1952, when the court was considering the challenge to segregation in the South, Rehnquist typed a memo for Jackson that defended the 19th century “separate but equal” doctrine.

Two years later, a unanimous court overturned that doctrine and struck down segregation in Brown vs. Board of Education.

While the Rehnquist court has not revisited old issues, it has not been a friendly forum for civil rights lawyers.

In 1987, Rehnquist led a 5-4 majority that rejected statistics showing that the death penalty system in the South was racially biased. He also led a series of rulings that made it harder for minority plaintiffs to win job discrimination claims.

In the 1990s, he led a 5-4 majority that struck down black-majority congressional districts in the South.

These days, the court’s key civil rights cases are brought by white plaintiffs who say they are discriminated against by government programs that favor minorities.

The biggest test of affirmative action is pending now: a challenge to the practice at the University of Michigan. Fittingly enough, the decision is due in what could be the final days of the Rehnquist court.

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Key cases to be decided

By tradition, the Supreme Court finishes its work by the end of June and goes on a recess for the summer. Twenty-two cases that were heard are still undecided. They include the following:

* Affirmative action. May colleges and universities give extra consideration to black and Latino applicants to create a more diverse class, or does this preference based on race violate a white applicant’s right to “equal protection of the laws?” Two cases challenge the admission policies at the University of Michigan and its law school. (Grutter vs. Bollinger and Gratz vs. Bollinger)

* Gay rights. May states make it a crime for gays to have sex at home, or do these laws violate the rights of homosexuals to privacy and equal treatment under law? (Lawrence vs. Texas)

* Library computers. Can Congress require public libraries to install software filters on their computers to screen out sexually explicit material, or does this law violate the freedom of speech? (U.S. vs. American Library Assn.)

* Sex crimes. Can California repeal the time limit for prosecutions to allow new charges for old sex crimes involving children, or does this change in the rules violate the Constitution’s ban on ex post facto laws? (Stogner vs. California)

* Corporate speech. May shoemaker Nike be sued for false advertising by a San Francisco activist for allegedly issuing a misleading news release, or does the 1st Amendment’s guarantee of free speech shield corporations from such suits? (Nike vs. Kasky)

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Leaders of the high court

As speculation builds over the retirement date of Chief Justice William H. Rehnquist, a look at other chief justices and how long they served.

Chief justices’ tenures

*--* Years as Age when Justice Chief Justice left court Reason John Jay 1789-1795 49 Resigned John Rutledge* 1795 56 Rejected Oliver Ellsworth 1796-1800 55 Resigned John Marshall 1801-1835 79 Death Roger B. Taney 1836-1864 87 Death Salmon P. Chase 1864-1873 65 Death Morrison R. Waite 1874-1888 71 Death Melville W. Fuller 1888-1910 77 Death Edward D. White 1910-1921 75 Death William H. Taft 1921-1930 72 Retired Charles E. Hughes 1930-1941 79 Retired Harlan F. Stone 1941-1946 73 Death Fred M. Vinson 1946-1953 63 Death Earl Warren 1953-1969 78 Retired Warren E. Burger 1969-1986 79 Retired William H. Rehnquist 1986- -- --

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What’s super about chief

The chief differs from associate justices in several ways, among them:

* He’s paid $198,600 compared to $190,100 for an associate.

* He presides over the court in public and private sessions.

* He decides who will write case opinions for those decisions in which he has voted in the majority.

* Rutledge presided as chief justice during the August 1795 term, but the Senate refused to confirm his appointment and he left the court

Sources: The Supreme Court, beta.oyez.org - Researched by Times graphics reporter Tom Reinken