A Liberal for Rehnquist : His Federalism Served the Cause of Individual Rights

My good friend Pat Brown, for whom I have the utmost respect and affection, put his foot in his mouth the other day. While advocating retention of all justices on the California Supreme Court regardless of their philosophy or political origin, the former governor confessed that he would oppose William H. Rehnquist’s nomination as chief justice of the United States. Why? Because Rehnquist is too conservative. Inconsistent? Well, yes, Pat conceded with his characteristic and lovable candor.

I must respectfully disagree. If I were in the Senate, I would vote to confirm the nomination of Justice Rehnquist. Though I have often found fault with his conclusions, in my view he is a thoroughly competent craftsman and a thoughtful legal scholar. The concepts that he advances, though often not to my taste, deserve to be ventilated and discussed.

It is assumed that Rehnquist is a diehard reactionary whose philosophy is totally out of step with modern reality. A thoughtful appraisal of his opinions does not confirm that assumption, at least not all of the time.

The Warren court, perhaps encouraged by the civil-rights movement of the 1950s and ‘60s, abandoned the previous pathetic approach to overt injustice in our society and elected to employ the federal Constitution to achieve a liberating effect in the areas of political opportunity, criminal justice and racial equality. The states were compelled to fall in line, often reluctantly.

The Burger court, however, appears to have abandoned the role of keeper of the nation’s conscience. There have been numerous retreats in the use of the Constitution to advance individual rights.

As a result, states have faced a difficult choice. They could react to the ebb and flow of the tide on the Potomac, and also reduce protection of individual rights. Or they could abandon dependence on the federal Constitution, and employ state constitutions as authority for preserving expanded rights. Many states, including California, opted for the latter. Indeed, the California Constitution provides that “Rights guaranteed by this Constitution are not dependent on those guaranteed by the United States Constitution.”

Some conservative politicians, disturbed at the use of the state Constitution to provide greater individual rights than the high court required, used the initiative process to compel California courts to employ only the federal charter in criminal cases. Nevertheless, the principle of federalism is still adopted whenever possible, so that the federal Constitution sets the floor below which individual rights may not fall, but the state establishes the ceiling.

This problem came to the attention of Rehnquist and his colleagues in a significant context. Where two constitutional rights conflict, which is to prevail? If a few orderly persons seek signatures on political petitions in a privately owned shopping center and the owner seeks to bar them, this conflict arises. The citizens are asserting their freedom of speech and their right to petition the government for a redress of grievances. The shopping center’s owner is defending his right to determine the use of his private property.

In the case of Robin vs. Pruneyard, the state Supreme Court said that the rights of the petition circulators should prevail as long as there was no interference with the business of the shopping center. The case went up to the federal Supreme Court.

In this conflict between free speech and private property rights, where was Rehnquist? Forthrightly on the side of free speech and, more significantly, in defense of the right of the states to define the limits, if any, on speech and related activity. His court, he wrote, “does not limit the authority of the state to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the federal Constitution.” This was true federalism.

It was interesting that some of his colleagues took a more conservative approach. Justices Lewis F. Powell Jr. and Byron R. White asked: What if the speakers advocated views seriously antithetical to the owner, as, for example, Ku Klux Klan spokesman invading a shopping center owned by a black? A provocative question, but fortunately that issue was not involved in the Pruneyard case.

In the recent session of the court, Rehnquist demonstrated his concern for the environment. In Japan Whaling Assn. vs. Baldridge, he joined with Justices Thurgood Marshall, William J. Brennan Jr. and Harry A. Blackmun in a dissent that excoriated President Reagan’s secretary of commerce for not enforcing congressional regulations concerning the protection of whales.

I could cite other examples of Rehnquist opinions that would satisfy, or at least not offend, traditional liberals like Pat Brown. But, if I did, I would be falling into his error of weighing competence on the basis of agreement with case results.

The bottom line is that William Rehnquist has the academic background and the judicial experience to justify his elevation to chief justice. The quality of his opinions amply demonstrates judicial competence.

Yes, Pat Brown, you were wrong. Liberals can support the confirmation of Justice Rehnquist.