Judicious restraint

THE LEGACY OF WILLIAM H. REHNQUIST is best captured by two sentences he wrote 15 years apart. The first he wrote in dissent in a 1985 case about minimum-wage requirements; the second he wrote for the majority in a 2000 case upholding the constitutionality of Miranda warnings for criminal suspects.

The dissent is terse and condescending. “I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this court,” he wrote. But 15 years later, after he had been named chief justice, Rehnquist had a newfound respect for stare decisis, the principle that courts should respect past decisions: “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now.”

Rehnquist, who became chief justice in 1986 after 14 years as an associate justice, died Saturday at the age of 80. While the legacy of his court is more complicated than usually portrayed -- its suspicion of federal power, and its deference to the states, had limits, as its decision in Bush v. Gore in 2000 showed -- the legacy of Rehnquist himself is more straightforward. During his tenure as chief justice, Rehnquist adapted his principles to the court’s.

Although he dissented in Roe v. Wade in 1973, he nonetheless presided over the court’s 1992 decision that reaffirmed the constitutional right to abortion. And while he was an early and energetic critic of the Miranda decision in 1966, as chief justice he upheld it. Of course, Rehnquist could afford to be magnanimous, since an overturning of either ruling was unlikely, and he had already brought the court around to his way of thinking on such issues as the constitutionality of the death penalty and private-school vouchers (both were permissible, with caveats).

As President Bush contemplates Rehnquist’s replacement for chief justice, he faces daunting ideological, practical and political challenges. If he wants a nominee who is philosophically palatable, can begin confirmation hearings quickly and stands a good chance at gaining Senate approval, he may want to consider John G. Roberts Jr., Rehnquist’s former law clerk. Roberts seems to value the two traits that may be the most enduring legacy of the Rehnquist court: collegiality and efficiency. He also appears to respect the traditions of both the law and the court.

As Rehnquist “grew in the job” -- a phrase he disdained -- the chief justice came to appreciate, however modestly, the importance of stability over ideology. President Bush could best show his respect for the law, and the late chief justice, by doing the same.