Rehnquist??¢â???¬â???¢s Unfinished Counter-Revolution

No one may be better placed to understand Chief Justice William Rehnquist’s unfinished counter-revolution than his former clerk, John Roberts.

When Roberts was an associate White House counsel in 1985, he wrote a memo analyzing the sweeping dissent then-Associate Justice Rehnquist filed in Wallace v. Jaffree, a case reviewing an Alabama law that set aside one minute per day in public schools “for meditation or voluntary prayer.”  Reading between the lines, Roberts suspected his old boss had initially succeeded in getting four other justices to uphold the Alabama law, but then lost two votes when he tried to use the case to restore the original meaning of the Establishment Clause.

Rehnquist’s dissent revealed a vision both conservative and revolutionary.  It was conservative because it defended the Constitution’s original meaning.  It was revolutionary because it required reversing decades-old Supreme Court decisions that had changed the Constitution’s meaning.

“The true meaning of the Establishment Clause can only be seen in its history,” wrote Rehnquist.

He then demonstrated that the Framers had subsidized religious schooling for secular state purposes, and had voted for a national day of prayer one day after approving the 1st Amendment.  What the Framers intended to prohibit, Rehnquist concluded, was establishment of a state religion, or government preference for one religion over another.

Rehnquist’s logic was irrefutable: If the 1st Amendment did not prohibit its Framers from asking the nation to pray for a day, how could it prohibit Alabama from asking students to pray for a minute?

But to act on Rehnquist’s logic, at least five justices needed the courage to overturn decisions dating back through the 1971 opinion in Lemon v. Kurtzman (which created a complicated three-pronged test for determining when state involvement in religion violated the 1st Amendment) to the 1947 opinion in Everson v. Board of Education, which cited a letter written by Thomas Jefferson (not a Framer of the 1st Amendment) in erroneously declaring that the Constitution had erected “a wall of separation between church and state” that, according to Justice Hugo Black, must be kept “impregnable.”    

“It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history,” wrote Rehnquist, “but unfortunately the Establishment Clause has been expressly freighted with Jefferson’s misleading metaphor for nearly 40 years.”

Rehnquist lost Wallace 6-3, when Republican Justices Lewis Powell and Sandra Day O’Connor sided with the liberals.

In his 1985 White House memo, Roberts theorized that Rehnquist “had five votes to uphold the statute, and tried to use the occasion to go after the bigger game of the Lemon test itself.”  In Roberts’s analysis, O’Connor defected first from Rehnquist’s would-be originalist majority, and that gave Powell cold feet.  “Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority,” wrote Roberts.  “Which is not to say the effort was misguided.  In the larger scheme of things what is important is not whether this law is upheld or struck down, but what test is applied.”

Rehnquist never succeeded in restoring the original meaning of the Establishment Clause.  But he never stopped trying.  One of his last acts was to join a dissent written by Justice Antonin Scalia in a 5-4 decision in which the majority used the Lemon test to forbid two Kentucky counties from displaying the Ten Commandments in courthouses.  Scalia’s dissent approvingly cited Rehnquist’s dissent in Wallace.  Justice O’Connor again determined the outcome, concurring with the liberals.

Rehnquist’s most famous dissent—which came in the 1973 Roe v. Wade decision–resembles his Wallace dissent in three ways:  It, too, spoke historical constitutional truth to raw judicial power.  Rehnquist never backed down from defending that truth.  And the court still lacks a majority willing to act on it.

When Justice Harry Blackmun argued fatuously in Roe that the 14th Amendment prohibited states from restricting abortion, Rehnquist countered with the cold fact that the laws of 36 states restricting abortion were in force before the amendment was ratified and remained in force after.   

When Republican Justices O’Connor, Souter and Anthony Kennedy, in the 1992 case of Planned Parenthood v. Casey, hid behind “stare decisis” to uphold the deadly illogic of Roe, Rehnquist vigorously rebuked them.  “It … is our duty,” he wrote in a dissent joined by Justices Scalia and Clarence Thomas, “to reconsider constitutional interpretations that ‘depart from a proper understanding’ of the Constitution.”

Rehnquist’s death leaves only two originalists on the court.  Even if John Roberts proves, once confirmed, to be as intellectually honest and courageous as his mentor, it would still take two more originalists to complete the great dissenter’s counter-revolution.

This is what rides on President Bush’s next choice–and the choice after that.