THE REHNQUIST COURT : BILL REHNQUIST WAS ONCE CONSIDERED AN EXTREMIST. NOW HIS VIEWS ALMOST ALWAYS BECOME THE LAW OF THE LAND.
ON FRIDAY MORNING, NOV. 2, 1990, THE BUZZER SOUNDED AT 9:25 on the second floor of the Supreme Court, signaling that the weekly conference of the nine justices would start in five minutes. It was a summons to the most important deliberation of the term. The case of Dr. Irving Rust, the director of a family-planning clinic in New York City, versus Dr. Louis W. Sullivan, the secretary of Health and Human Services, was not only a key abortion dispute but also an important test of the First Amendment. The question before the court was this: Can the government prohibit doctors from telling their pregnant patients about abortion as a medical option? * Yes, the Bush Administration had said. In 1988, during his last year in office, Ronald Reagan had ordered an abrupt change in the regulations governing an 18-year-old federal-subsidy program for family-planning clinics. In setting up the program, Congress had said these clinics should provide contraceptives, pregnancy tests and medical advice to poor women and teen-agers but should not use abortion “as a method of family planning.” Between 1970 and 1988, several administrations, Republican and Democratic, interpreted that to mean that, while clinic doctors and nurses could not “encourage or promote” abortion, they could refer pregnant patients to doctors who perform abortions. * Why use federal funds to send “unborn children” to their deaths? asked Reagan. His aides issued new regulations that said clinic doctors could not even mention the word abortion. They were required to refer all pregnant patients for prenatal care to “promote the welfare of . . . the unborn child.” * Clinic directors, women’s-rights advocates and many members of Congress labeled the directive a “gag rule” and vowed to fight it. In February, 1988, a lawsuit was filed on behalf of Rust and his patients. His lawyers argued that the new regulations violated the intent of the law, stifled the free-speech rights of doctors and infringed on the abortion rights of women. Upon taking office, George Bush and his Justice Department took up the defense of the regulations. * Now, behind the closed doors of their conference room, the nine justices would decide whether Reagan’s regulations would stand. * The Administration’s case rested in reliable hands. At the head of the long, rectangular table sat the chief justice of the United States, 66-year-old William H. Rehnquist. No other member of the court in recent decades had been as faithful in backing the government. No other justice so regularly turned thumbs down when individuals contended their constitutional rights had been violated. * During a legal career spanning nearly 40 years, Rehnquist had made his mark as a steadfast conservative. He supported official prayers in schools and opposed school desegregation. He opposed the Equal Rights Amendment for women, saying it would “turn holy wedlock into holy deadlock” and “hasten the dissolution of the family.” He contended that the Constitution’s guarantee of the “equal protection of the laws” did not forbid sex discrimination because the 14th Amendment was designed to protect blacks, not females. And he dissented, along with Justice Byron R. White, when the court in 1973 ruled, in Roe vs. Wade, that women had a constitutional right to abortion. * No wonder the Bush Administration attorneys were confident. Although he controlled only one vote--his own--the chief justice could use his powers of persuasion to sway the outcome. As is customary, Rehnquist led off the discussion by summarizing the background of the abortion-clinic dispute and the legal issues involved. He then announced he would vote to uphold the government. But “the chief,” as he is known around the court, knew he had a problem. He needed four votes besides his own if his opinion was to prevail, and, as the meeting opened, he seemed certain of only three.
Now-retired Justice William J. Brennan Jr. used to call “the rule of five” the most important principle of American law. His new law clerks were usually stumped when he asked them about it; no one had ever taught them about the rule of five in law school. Brennan would then hold up his hand, palm open and fingers outstretched, and say, “You can do anything you want at the Supreme Court with five votes.” The corollary was just as true. With only four votes, you did nothing but write dissents. During his more than three decades on the court, Brennan had been the master of the rule of five. Somehow, year after year, despite a procession of new Republican appointees, Brennan managed to piece together five-vote majorities to rule in favor of civil rights and civil liberties.
But by October, 1990, Brennan was gone, having retired at age 84 after suffering a stroke. Rehnquist now expected that his job of “counting to five” would be easier. But on this case, the numbers weren’t adding up. Though Rehnquist’s fellow conservatives--White, Antonin Scalia and Anthony M. Kennedy--voted with him to uphold the new regulations, the court’s only woman justice, Sandra Day O’Connor, balked.
She had done the same in 1989 in Webster vs. Reproductive Health Services, the much publicized Missouri abortion case that attempted to overturn Roe vs. Wade. There, Rehnquist had tried to sway her with an opinion that quoted from her earlier writings. With her vote, Rehnquist could have cleared the way for broad state regulation of abortion--although the basic right to choose abortion would have survived.
But, to his surprise, O’Connor refused to sign his opinion in the Missouri case. Instead, she wrote a separate, narrow opinion that permitted Missouri to halt abortions in its public hospitals--but no more. She refused to tamper with the Roe decision at all. Rehnquist had a majority to rule for Missouri but no majority to cut back on Roe vs. Wade. The case set off a loud political reverberation, but it had little legal significance.
Once again, in Rust vs. Sullivan, O’Connor refused to go along with Rehnquist, who had been her friend and classmate at Stanford Law School. Instead, she cast her vote with the liberals--Thurgood Marshall, Harry A. Blackmun and John Paul Stevens--to strike down the gag rule.
So Rehnquist turned his attention on David H. Souter. Souter had replaced Brennan just three weeks earlier, and he was still unsure of himself. Because he had spent most of his career as a state attorney and state judge in New Hampshire, he did not have a thorough grounding in the intricacies of federal law. Suddenly he was faced each month with deciding the 24 most divisive cases before the federal judiciary. In addition, 100 new appeals arrived at the court each week. He said he felt as if he had been hit “by a tidal wave.”
With O’Connor’s vote, the score was 4 to 4. The new justice was on the spot. And Rehnquist was prepared to help him out.
Souter was a conservative picked for the court because the Bush Administration believed he could be trusted to uphold the government most of the time. But he seemed to be troubled by one point in this case. His concern had surfaced three days earlier when John Paul Stevens, from the bench, challenged the Bush Administration’s top courtroom attorney, Solicitor General Kenneth W. Starr, during oral arguments. What if a doctor concludes “from a purely medical point of view” that an abortion would be advisable? Stevens wanted to know. Can the doctor recommend an abortion to his patient?
No, Starr said. Abortion is outside “the scope” of the family-planning clinics. The woman must go elsewhere for advice and assistance.
Souter, at the far end of the bench, had leaned toward his microphone. He spoke deliberately, with a distinctive New England accent. But what if the pregnant woman “is in some imminent danger to her health,” perhaps because of heart trouble or high blood pressure? Can the doctor then refer her to a hospital for an abortion?
Yes and no, Starr said. He can refer her to a hospital for emergency care, but not for an abortion. That is outside the scope of the program, he reiterated, at least as determined by the Reagan and Bush administrations.
Souter sounded unswayed. “In those circumstances, the physician cannot perform a normal professional responsibility,” he said. “I think you are telling us that in that circumstance, (the government) may in effect preclude professional speech.”
That was exactly the argument put forth by those challenging the rules. The government need not pay for abortion, Harvard Law School Professor Laurence H. Tribe conceded in his oral argument, and the clinics may be prevented from “promoting or encouraging” abortion. But the government cannot stop doctors from telling their patients “the whole truth,” Tribe had argued on behalf of Dr. Rust.
Later, at their conference, Souter seemed torn. But Rehnquist had come into this meeting with a solution that would not only help his new colleague make a decision but also ensure that the chief got his five votes. Rehnquist could, he told Souter, draft an opinion simply making clear that a clinic doctor who faces a medical emergency can do what he thinks best, including recommending abortion. Rehnquist would just ignore the contrary view voiced by the Administration’s attorney.
Souter decided to go along with the chief.
On May 23, 1991, Rehnquist announced from the bench to a full courtroom that he would deliver the opinion of the court in Rust vs. Sullivan. His five-vote majority had not faltered. He upheld the government on all points.
Tucked into Rehnquist’s 27-page opinion was his concession to Souter: one pragmatic paragraph on doctors and medical emergencies. The lawyers challenging the regulations “rely heavily on the claim that the regulations would not, in the circumstance of a medical emergency, permit a (clinic) to refer a woman whose emergency places her life in imminent peril to a provider of abortions or abortion-related services,” he wrote. “On their face, we do not read the regulations to bar abortion referral or counseling in such circumstances. Abortion counseling as a ‘method of family planning’ is prohibited, and it does not seem that a medically necessitated abortion in such circumstances would be the equivalent of its use as a ‘method of family planning.’
“The government has no affirmative duty to commit any resources to facilitating abortions,” the chief justice said. If a poor woman or a pregnant teen-ager cannot find an affordable abortion, that is “the product not of government restrictions on abortion but rather of her indigency.”
The opinion, like the bulk of the decisions the court is likely to issue in the years to come, was vintage Rehnquist. He upheld the powers of the government and dismissed any claims that it has special responsibilities toward the poor.
Under Rehnquist, the Supreme Court no longer sees itself as the defender of civil rights and civil liberties, the champion of the individual. Gone is the court majority that breathed new life into the Bill of Rights, dismantled Southern segregation, disciplined police who violated the rights of citizens, removed religion from the public schools, pushed a President into resignation and swept aside the laws forbidding women to end their pregnancies. Instead, the court shaped by Ronald Reagan and George Bush has become an institution that sees its duty as upholding the will of the majority. Whether the issue is local rent control, prayer in the public schools, drug testing of public employees or the death penalty for mentally retarded murderers, Rehnquist takes the same view: Government officials exercise the will of the citizens who elected them; they may do as they choose and should be shown deference by the courts.
And, more and more, the Supreme Court’s prevailing philosophy mirrors that of the affable but solidly conservative man who presides at its head. The Supreme Court has become the Rehnquist court, just as the court of the 1950s and 1960s was widely known as the Warren court, after the influential chief justice of that era, Earl Warren. And Rehnquist, the dominant figure in American law, is clearly the most powerful member of the Supreme Court since Warren retired in 1969. Unlike anyone since Warren, Rehnquist has firm control of the court majority and a commitment to rewriting constitutional law.
WILLIAM HUBBS REHNQUIST GREW UP IN A MODEST HOME IN Shorewood, Wis., the son of a wholesale-paper-salesman father and a college-educated mother who was fluent in five languages. Though Franklin D. Roosevelt and his New Deal dominated American politics when Rehnquist was young, the political heroes in his household were Republicans: Alf Landon, Wendell Willkie and Herbert Hoover. “He grew up in a home with very conservative values,” one childhood friend remembers. “That was his upbringing. You worked hard and didn’t depend on others. That’s how we were taught.”
Those values remained intact as he served a tour of duty in North Africa as an Army Air Corps weather observer in World War II, then garnered a series of academic degrees--a bachelor’s and a master’s in political science from Stanford in 1948 and 1949, a government degree at Harvard and finally a law degree back at Stanford.
Justice O’Connor says his exceptional skill as a lawyer was evident even in law school. “He was head and shoulders above all the rest of us in sheer legal talent and ability,” she says. “He was definitely the star of our class.” Rehnquist graduated first in the class of 1952, two places ahead of Sandra Day.
Classmates recall Rehnquist as witty, pleasant and unpretentious. Others were struck by his unwavering conservatism. His views seemed to have been “flash frozen” when he was an undergraduate, they say, and have not shifted or evolved since.
He won a position as a clerk for Justice Robert H. Jackson, and in February, 1952, after a drive across country in an unheated Studebaker, Rehnquist walked up the steps of the Supreme Court for the first time. The country was in the depths of the Cold War, and as Wisconsin Sen. Joseph McCarthy feverishly ferreted out suspected Communists in the government, Julius and Ethel Rosenberg awaited execution for having smuggled atomic secrets to the Soviet Union. Unlike most of his fellow law clerks, Rehnquist supported the efforts of his home-state senator and wished a quick end for the Rosenbergs. In a later letter to Justice Jackson, he bemoaned the long delay in executing the Rosenbergs and wondered why “the highest court of the nation must behave like a bunch of old women every time they encounter the death penalty.”
In memos to Jackson, he also railed at “the liberals” who were then breaking down segregation in the South. When the court was asked to end the Southern system of all-white primary elections, Rehnquist urged that the appeal be dismissed. “I take a dim view of this pathological search for discrimination,” he wrote. “It is about time the court faced the fact that the white people of the South don’t like the colored people.” In criminal cases, he questioned why convictions must be overturned on “technicalities"--that is, when the defendant’s constitutional rights had been violated. Though Rehnquist’s legal views were rigid, he was not.
“He was funny and charming, very bright and quick. He could give you all the good conservative arguments on any issue,” says Donald Trautman, then a clerk to Justice Felix Frankfurter and now a Harvard Law School professor. “He had no sympathy for criminal defendants--none. When you talked about the problem of the cities or the poor or blacks, it was clear he had no understanding. It was a universe he didn’t comprehend.”
Others who clerked during that time echo Trautman but do not want to be quoted by name because they still practice law.
“I remember when that year was over, my wife and I sat down and made a list of the ones we thought would make a name for themselves,” a prominent attorney says. “We put down seven names. There were 18 of us in all. Bill Rehnquist’s name was not on the list. He was too fixed, too narrow in his views.”
The young attorneys who knew him in the early 1950s say Rehnquist’s opinions appear unchanged today, a perception he has not sought to dispute. “I can remember arguments we would get in as law clerks,” Rehnquist told an interviewer in 1985, “and I don’t know that my views have changed much from that time.”
As a young lawyer in Phoenix in the mid-1950s, Rehnquist denounced the “left-wing philosophers” on the Warren court who were showing “extreme solicitude to Communists and other criminals.” He was active in Barry Goldwater’s presidential campaign in 1964. At home in Phoenix, he spoke out against a proposed city ordinance that gave blacks, Latinos and Jews the right to be served in local motels, hotels and restaurants. “It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual freedom for a purpose such as this,” he told City Council members. They ignored his advice and passed the measure unanimously.
After Richard M. Nixon won the presidency in 1968, Rehnquist joined the Justice Department as a protege of Dep. Atty. Gen. Richard Kleindienst, another Arizonan. There, he developed a reputation for mild manners and bold views. He drew up a proposed constitutional amendment to end busing for desegregation. As the top legal theorist of the Nixon Administration, he defended government wiretapping, “no-knock” searches, the Army’s surveillance of private citizens and the May Day arrests of Vietnam War protesters.
In 1971, Nixon rewarded his legal adviser with a seat on the Supreme Court. From the start, Rehnquist took the most conservative position on every major issue. He fought against equal rights for women but for the rights of white males who claimed to be victims of affirmative action. He supported capital punishment and slammed his colleagues for “tinkering” with the death penalty. He disagreed with giving broad free-speech rights to pornographers and protesters. His clerks dubbed him the “Lone Ranger,” because he so often stood alone on the far right of what was then a moderate-to-liberal court.
THE LONE RANGER IS NOW THE VOICE OF A SOLID COURT MAJORITY.
With every new member of the court since 1967 appointed by a Republican President, the conservative justices were expected to reshape the high court during the 1970s and ‘80s. But during the ‘70s, the liberals won landmark victories at the court, which determined that the Constitution forbids sex discrimination, protects the right to choose abortion and allows government and employers to use affirmative action to benefit racial minorities.
Conservatives blamed the chief justice of that era, Warren E. Burger, for failing to cement a conservative majority. With his snow-white hair, finely chiseled chin and baritone voice, Burger appeared to have been cast for the part of chief justice. But in the conference room, his long-winded, ill-focused presentations irked his colleagues, and his pompous manner offended them. Burger could be petty and spiteful to those who disagreed with him, and he was unable to secure the votes--or even the decent regard--of most of his colleagues. His court was fractured and uncertain.
But Rehnquist, whom Reagan chose to replace Burger in 1986, has both the respect of his colleagues and the benefit of additional conservative appointments.
“Bill Rehnquist is the quickest lawyer I ever met,” says former Justice Lewis F. Powell Jr., who was named to the high court with him in 1971 after four decades in private practice. What amazes Rehnquist’s colleagues, too, is that he does not require the hours of study that they--also experienced and learned in the law--need to get ready to hear and decide a case. He is assured and incisive. No matter how complicated or muddy the dispute, he can cut to the heart of the matter and distill the key issue at stake.
His unpretentious manner and the premium he places on cordial relationships within the court have also helped him earn a kind of loyalty from the other justices that Burger never enjoyed. For nearly 20 years, for example, Brennan and Rehnquist disagreed on practically every issue. A champion of individual rights, Brennan led the court’s liberal wing, while Rehnquist rallied the conservatives. But despite their deep differences on the law, the two became close friends. “I liked him the first day I met him, and we’ve been friends ever since,” Brennan says.
Rehnquist was determined to maintain good spirits among colleagues, regardless of their legal disputes. He visited Brennan whenever he was ill, joked with Thurgood Marshall and played trivia games with Harry Blackmun. History, geography and sports trivia are Rehnquist specialties. Each month, the chief justice gets together with some old friends, including Scalia, for an evening of poker. Both members of the court play true to form, friends say: Scalia talks endlessly, Rehnquist is subdued and businesslike. Rehnquist also enjoys betting on anything--usually for $5--with anyone who is available, even reporters. The approach of the World Series or the Super Bowl sets him off in search of wagers. Several years ago, on the day of a huge anti-abortion march to the court, the Washington Post ran an odd photo of the chief justice and several of his clerks standing in snow near the steps of the court. Were they observing the marchers? No; Rehnquist had taken bets among his fellow justices on the depth of the snow. Powell won $5 from the chief.
Rehnquist the justice is often curt and cutting, but Rehnquist the man has a soft touch. He is genial, modest and down-to-earth, with an old-fashioned kind of courtesy. At a first meeting, he shakes hands with a slight bow. He asks young clerk applicants about their hometowns, families and hobbies, about books and sports. Perhaps because he can be nervously awkward at times, Rehnquist tries to put others at ease.
His is an efficient operation. He hates to waste time. The conferences start promptly and are usually finished by noon. With every case, he gives each justice a chance to speak, but he frowns on any debate.
He is, in fact, far too efficient for Scalia’s taste. “To call it a conference is a misnomer,” Scalia has complained in talks with law students. Quick-witted and argumentative, Scalia wants a wide-open debate, especially in the major cases. Contrary to the common view, the justices actually see little of each other and rarely discuss cases until they get together to vote. And even then, they don’t discuss much.
Still, most justices say they are quite pleased with Rehnquist’s fast-paced operation. His relaxed manner and dry wit also appear to be succeeding. During the Burger years, the justices privately mocked the chief’s pomposity and scoffed at his legal ability. There is no such talk about the current chief justice. From left to right, the justices do not disparage Rehnquist.
“He is honest,” says one justice in evaluating Rehnquist. He presents cases in a fair, balanced way, this justice says, without giving the facts a conservative slant. Moreover, Rehnquist announces his own opinion up front. Burger had been denounced for trying to manipulate the outcomes by voting with the liberals even when he disagreed. That way, because of the internal court rule that the chief assigns the opinion when he is in the majority, Burger could determine what was said. And Rehnquist appears to hold no grudges against those who disagree with him. “That strikes me as a bizarre notion,” he reportedly said once, when the votes showed Brennan had a majority and thus the right, as the senior justice, to assign the opinion, “but it’s all yours, Bill.”
One indicator of his success is what went unsaid on June 28, the day after Thurgood Marshall announced his retirement. In recent years, Marshall had pronounced George Bush “dead” and Ronald Reagan “the worst” on civil rights. What might he say then during his final press conference about William Rehnquist and the now stridently conservative court? Not one word. No matter how the questions were phrased, the retiring giant of civil-rights law would not utter a single critical comment about Rehnquist or the court.
Marshall’s retirement seems certain to extinguish the liberal fire of the court for the foreseeable future. During the 1986-87 term, Rehnquist’s first as chief justice, the decisions in key cases still swung from left to right, the outcome usually depending on Powell, who tended to vote with the conservatives on crime but with the liberals on civil rights and civil liberties. As a result, the court continued the same uneasy balance it had shown for 15 years. Powell’s retirement and his replacement by Kennedy, a Sacramento native, gave Rehnquist a working majority. And now that Marshall and Brennan, the last liberals of the Warren era, are gone, Rehnquist will be able to count on six or seven conservatives in every case. Before, a defection by O’Connor or White could deprive Rehnquist of a majority. No more. Now, the way is clear for him to rewrite American constitutional law.
But he will not necessarily pursue a strictly conservative agenda. Rehnquist refused to strike down the independent-prosecutor law during the Iran-Contra scandal, which outraged other conservatives. And many of his decisions have not favored business. In his view, local laws such as billboard prohibitions, coastline-development limitations and rent control reflect the will of the majority. He believes federal judges should observe a hands-off policy regarding local laws.
LAWYERS OF THE POST-WORLD WAR II GENERATION WERE SHAPED by their perception of the 1930s Supreme Court. By a slim majority, the “nine old men” of the court blocked a number of Roosevelt’s New Deal programs, rejecting laws such as those setting a minimum wage and maximum hours on the grounds that these measures violated an individual’s supposed “right to contract.” The minimum wage, they said, takes away one’s right to work for less than the minimum wage.
For liberals such as Brennan and the late William O. Douglas, the lesson to be drawn from the era of the discredited nine old men was that the court must protect civil rights and individual liberties, not economic and property rights. Nothing in the Constitution or its history necessarily endorses such a distinction, but that has been the prevailing consensus since the 1940s.
But conservatives drew a quite different lesson from the decisions of the nine old men: The court should not become involved in economic matters or in social policy. According to Rehnquist, the court errs when it tries to do too much, when it “legislates.” Better to uphold the laws of the state legislatures, he says, rather than striking them down as potentially unconstitutional. As a committee of unelected lawyers, the justices do not have “a roving commission to second-guess Congress, state legislatures and state and federal administrative officers concerning what is best for the country,” he said in a 1976 speech.
He first laid out his philosophy in his 1952 memo to Justice Jackson on the groundbreaking Brown vs. Board of Education school-desegregation case. Throughout its history, the justices had erred, he said, when they sought to protect individual rights. For example, in 1857, the court helped spark the Civil War when it ruled, in the infamous Dred Scott case, that the Constitution protected the rights of slaveholders. In the early decades of the 20th Century, the court blocked progressive measures by ruling that the Constitution protected the rights of businessmen.
“One hundred and fifty years of attempts on the part of this court to protect minority rights of any kind--whether those of business, slaveholders or the Jehovah’s Witnesses--have all met the same fate. One by one, the cases establishing such rights have been sloughed off and (have) crept silently to rest,” he wrote as a 27-year-old law clerk.
On matters involving the Constitution, Rehnquist’s hands-off approach has been extraordinarily consistent. There is, however, one major exception: affirmative action. Repeatedly, and without exception, he has voted to strike down laws--city, state or federal--that give preferences to blacks, women, Latinos or other minorities. Whether it is the University of California giving an edge in admissions to minority students, the Federal Communications Commission giving a slight preference to minorities in competing for new broadcast licenses or the Richmond, Va., City Council setting aside a percentage of its city contracts for minorities, Rehnquist says those laws are unconstitutional. White males are entitled to “the equal protection of the laws,” too, he says.
While that stand is not odd in itself--many legal scholars and most Americans think the Constitution forbids any distinctions based on race or sex--it is slightly peculiar for a conservative like Rehnquist. In the early 1950s, he did not think the segregation of black school children was unconstitutional. In the 1970s, he did not think discrimination against women violated the Constitution. Now, he insists that any discrimination against white males violates the Constitution. It is also somewhat odd because Rehnquist rarely strikes down any law on the ground that it violates the Constitution.
Under Rehnquist’s view of the Constitution, state officials may execute juveniles for murder, may arrest gays for homosexual acts in their homes and may prohibit women from having abortions, but they may not give a slight preference to African-American students seeking admission to a state university.
During the 1988-89 term, when the court was badly split on scores of constitutional cases involving, for example, flag burning, the death penalty, drug testing, abortion and religion, Rehnquist voted against the government only once: to strike down the Richmond city ordinance benefiting minority businesses.
His willingness to abandon his usual hands-off approach in order to overturn liberal civil-rights laws points up the most troubling side of Rehnquist’s decision making. It leads his critics to say that he is result-oriented, that he is not governed by any consistent philosophy but, like the liberals he excoriated in the 1950s, makes his own preferences the law of the land.
Take, for example, his decisions in cases involving women and pregnancy. In 1976, Rehnquist wrote an opinion for the court declaring that the General Electric Company did not violate federal sex-discrimination laws when it excluded pregnant women from its otherwise all-encompassing disability coverage. The company treated men and women equally, Rehnquist said. Yes, the dissenters commented sarcastically, if men got pregnant, they would not be covered, either.
In response, Congress passed the Pregnancy Discrimination Act of 1978, requiring that employers treat pregnant women “the same” as men and insisting that women be evaluated only on their “ability or inability to work.” That same year, the California Legislature said employers must allow pregnant women up to four months of unpaid leave to recover from childbirth and guaranteed that they would get their jobs back after maternity leave. When California employers challenged this law in the Supreme Court in 1987, Rehnquist sided with them, showing no deference to the California Legislature. Rehnquist argued that the law discriminates in favor of women and therefore must be invalidated under the Pregnancy Discrimination Act. However, Rehnquist was on the losing side in that decision because Scalia and O’Connor voted with the liberals to uphold California’s law.
So, can an employer whose factory contains toxic lead exclude women because they may get pregnant and their fetuses may be damaged? Yes, said Rehnquist in an March, 1991, decision in the case of Auto Workers Union vs. Johnson Controls Co. But once again, Scalia and O’Connor joined with the liberals to strike down these “fetal-protection” policies. The Pregnancy Discrimination Act may not be wise, Scalia wrote, but it is clear: A woman’s “ability or inability to work” governs employers, not the potential impact on the fetus.
In each of those cases, spanning 15 years, Rehnquist steadfastly refused to invoke the federal laws against discrimination based on sex or pregnancy to protect women. He invoked them only in the 1987 case to argue that California’s law that gave extra leave to pregnant women should be struck down.
“He is very much the ideologue,” USC Law Center Professor Erwin Chemerinsky says of Rehnquist. In a 1989 Harvard Law Review article on the Rehnquist court, Chemerinsky showed that the chief justice almost never votes to strike down laws--unless the laws happen to benefit minorities or women. “He writes decisions to get the results he wants. He is not consistent on a principle of law.”
Scalia is certainly as conservative as Rehnquist, Chemerinsky noted, but he also votes on occasion for what is considered a “liberal” result. “Scalia lays out a principle and follows it, even if he doesn’t like where it goes,” Chemerinsky commented. By contrast, Rehnquist knows where he wants to go and doesn’t let an adherence to legal principle get in the way.
THE PERSON WHOSE opinions so powerfully interpret the laws of the land often seems almost literally to be an invisible man. On a weekday morning, as young Senate staffers hurry to work in the office buildings near the Capitol and tourists emerge from buses on 1st Street to gaze at the Capitol Dome or the marble pillars of the Supreme Court, William Rehnquist walks by on the sidewalk, unnoticed. For years, Rehnquist’s bad back has made it difficult for him to sit for long on the bench or in his chambers. He frequently strolls around the neighborhood of the court, sometimes alone and at other times in animated conversation with his law clerks. He is rarely recognized. Two years ago, a national survey tested Americans’ knowledge about judges and courts. When the more than 1,000 respondents were asked to name the judge on TV’s “The People’s Court,” 54% correctly answered, “Joseph A. Wapner.” Asked to name the chief justice of the United States, they stumbled; only 9% could come up with the name Rehnquist.
Not Hollywood’s idea of a chief justice, Rehnquist is tall and gawky, with awkward mannerisms and a toothy grin. He walks with a peculiar bobbing stride, his head hunched down on his shoulders. During his early years on the court, he sported long sideburns, Hush Puppies and rumpled sports coats, appearing, in the marble hallways, to be a refugee from a small college math department rather than a justice of the Supreme Court. Since becoming the chief, he has trimmed the now graying sideburns and switched to gray suits.
But in front of cameras or crowds, he still fidgets awkwardly, unable to find a comfortable place for his hands. On the day he was sworn in as chief justice, he stood before photographers on the court’s long steps with his thumbs hooked in his pockets, his fingers pointed outward.
Rehnquist refuses to sit for on-the-record interviews and turns down requests to appear on television or radio. But since taking over as chief, he has had regular evening receptions for legal reporters in Washington and an occasional off-the-record meeting with the reporters who cover the court full-time. The sessions are strictly social. Rehnquist seeks cordial relations with the press, too.
He once asked a new reporter how he liked covering the court. The reporter responded that the court stories had “more substance,” at least compared to the flash and fluff of politics and Congress.
“Yes, more substance opportunities,” Rehnquist replied dryly, a takeoff on “photo opportunities.”
At another luncheon with editorial writers and columnists, Rehnquist was asked if the court was influenced much by public opinion. No, he replied, if you are referring to opinion polls or marches in front of the court.
“Well, what about,” the writer insisted, “a piece that makes a strong, persuasive argument for deciding a case a particular way?”
“We are always interested in clear, logical reasoning,” Rehnquist replied, “no matter how unlikely the source.”
WHEN THE COURT TAKES the bench on the first Monday in October, its most liberal members will be two Midwestern Republicans: Harry Blackmun and John Paul Stevens. All the rest will be conservatives, most of whom were appointed by Presidents Reagan and Bush.
With an unquestioned majority, Rehnquist may move aggressively to throw out established doctrines of constitutional law. For example, Rehnquist has long disputed Thomas Jefferson’s view that the Constitution demands a “separation of church and state.” Rehnquist has called this “a misleading metaphor” that is “based on bad history.” Although most historians disagree with him, Rehnquist says the government should be allowed to support and encourage religion, including group prayers in school. If the court’s newest members, Souter and Thurgood Marshall’s replacement. are willing to join him, Rehnquist may move to overturn the 1962 decision outlawing state-sponsored school prayers.
Given an opportunity, Rehnquist would probably also overturn the best known of the Warren court’s criminal-law rulings: Miranda vs. Arizona. As most TV cop-show viewers know, it is because of the Miranda decision that police officers warn suspects that they have a right to remain silent and the right to speak with a lawyer. Though the Miranda warnings have become standard police practice, on occasion a criminal conviction is overturned because the suspect was questioned before he waived his rights. Two years ago, during an oral argument in just such a case, a defense attorney began a sentence by saying, “Well, your honor, Miranda requires that. . . .”
Rehnquist cut him off. “Miranda doesn’t require anything,” he snapped. “All of Miranda is dicta,” the legal term for the meaningless verbiage in a court opinion.
The addition of Souter last year entrenched a pro-police, pro-prosecution majority, one that moved too fast even for Byron White, a John F. Kennedy appointee who is usually a hard-liner on crime. Twice during the last term, White wrote impassioned dissents in criminal cases. The first came when the 5-4 majority said for the first time that a coerced confession can be used during a trial. The second came on the term’s final day when the same 5-4 majority ruled that it is not cruel and unusual punishment to impose a life prison term without parole for a first-time conviction for drug possession.
THE ABORTION ISSUE AGAIN stands as a major test for Rehnquist and his leadership of the court. Even those who have sat around the table and argued the issue for years are not sure what will happen. Brennan thinks the constitutional right to abortion will survive. Blackmun, the author of the majority opinion in Roe vs. Wade, thinks it will not. And Rehnquist is not predicting. The outcome may depend on Souter and on Marshall’s replacement.
Clearly, the justices will allow the states to regulate abortion--but how far will the states be permitted to go? Will the Supreme Court allow states to make abortion a crime--as Louisiana and Utah have--and to send doctors to prison for performing abortions? The court will be forced to address those questions in the next two years.
Some legal experts believe the doctrine of stare decisis-- Latin for letting a matter stand as decided--will prevent the court from overturning the right to abortion. But Rehnquist seemed to shatter that view on June 27, the last day of the 1990-91 term. In overturning two recent precedents on the death penalty, the chief justice said, “ Stare decisis is not an inexorable command.” When a new majority sees old decisions as “unworkable or badly reasoned,” it will overturn them, he said. Legal precedent is most important “in cases involving property and contract rights” but less so in matters of individual constitutional rights, he added. For supporters of the constitutional right to abortion and the right to free speech, Rehnquist’s opinion in the Rust vs. Sullivan case and his expressed disregard for stare decisis seemed ominous.
Rehnquist would caution that, over time, the political system will supply the final answer, either by writing new laws or by changing the makeup of the Supreme Court. As Rehnquist wrote nearly 40 years ago, “In the long run, it is the majority who will determine what the constitutional rights of the minority are.” And, at least for now, Rehnquist has five votes in his pocket and the power to interpret what the majority wants.