Thank You, William Rehnquist

William Rehnquist was the most unlikely of appointments to the U.S. Supreme Court.  He had no experience as a judge, and his boss Richard Nixon would embarrassingly refer to him as "Renchburg."

But after serving over 33 years on the Supreme Court, the last 19 as Chief Justice, Rehnquist proved to be among the greatest justices ever. He set the judicial standard at a very high level.

Rehnquist took his seat on the Supreme Court on January 7, 1972.  A mere two months later, he brazenly disagreed with all the other justices and issued his first lone dissent.

He went on to establish his reputation for dissenting alone, earning him the nickname "the Lone Ranger."  Rehnquist was never one to seek accolades from the media or his colleagues, and penned more than 410 dissenting opinions over his marvelous career.

One of his early dissents, in 1973, was to a majority decision invalidating state laws allowing maintenance grants for nonpublic and religious schools in Committee for Public Education & Religious Liberty v. Nyquist.  Rehnquist had joined a Supreme Court that was almost unanimously hostile to all things religious, as well as liberal in many other ways.

Nearly 30 years later, Rehnquist prevailed with his 5 4 decision in Zelman v. Simmons-Harris upholding school vouchers that parents could use to attend religious schools.  Rehnquist’s view became mainstream, to the benefit of all Americans.

His closest ally in the early years was Chief Justice Burger, who seemed to join some of Rehnquist’s dissents simply out of sympathy.  By 1981, Burger knew whom to assign the difficult task of writing the decision defending the federal law excluding women from the draft.

Rostker v. Goldberg challenged the draft registration that was reactivated by President Jimmy Carter in the wake of the Soviet invasion of Afghanistan.  Carter and the feminists demanded that women be drafted, too.

For ten years, the Supreme Court had invalidated virtually every law that differentiated between men and women, often with Rehnquist in dissent.  The Court had even declared unconstitutional an Oklahoma law that set the alcohol drinking age for men at 21 but for women at 18, despite the 21st Amendment, which conferred on states the power to regulate liquor.

But Rehnquist commanded a 6 3 majority in favor of upholding a sensible distinction between men and women in the military draft.  Rehnquist upheld the exemption for women, and quoted an earlier decision saying that judges "are not given the task of running the Army."

Rehnquist felt strongly that government’s legislative, executive and judicial powers should be kept separate and distinct.  It was again Rehnquist who wrote a 5 4 decision reversing the judge who ordered Missouri to increase teachers’ salaries in the Missouri v. Jenkins desegregation case.

He told the lower federal judge "to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution."  That litigation had dragged on for 18 years until Rehnquist finally blew the whistle on its judicial activism.

That was not the first time Rehnquist put the brakes on a runaway judiciary.  The most famous case in the important field of administrative law is Vermont Yankee Nuclear Power v. NRDC (1978), in which a liberal appellate judge had interfered with the process of a federal agency.

In a strongly worded reversal that shocked the legal community, Rehnquist wrote an opinion that attracted unanimous support on the Court.  He declared that agency decisions should not be overturned "simply because the court is unhappy with the result reached."

As the years went on, Rehnquist showed his greatest skill in assembling a wobbly five person majority.  In 2000, Rehnquist wrote two 5 4 decisions for the Court that will live on far beyond his departure.

In United States v. Morrison, the Court reviewed a federal law that offered big damages in federal courts for domestic disputes between men and women, an issue that had always been handled under state law.  Briefs filed by 67 feminist and liberal groups urged opening federal courts to domestic relations, and offering attorney’s fees to entice lawsuits against deep pockets.

Congress had passed the law by a wide margin, and media pressure was intense to uphold it.  The facts of the case involved a college coed seeking recovery for an alleged rape by a football player, so no one would be applauded for ruling against her.

Yet Rehnquist led a five person majority to keep the federal courts out of marital and domestic disputes.  In so doing, he affirmed his brilliant 5 4 decision five years earlier in United States v. Lopez, which set historic limits on federal power under the Commerce Clause.

Rehnquist’s other 5 4 decision in 2000, Boy Scouts v. Dale, maintained the right of the Boy Scouts to decide for themselves whether to allow gay scoutmasters.  Against a claim by liberal justices of greater societal acceptance of homosexuality, Rehnquist retorted that "the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."

Rehnquist’s career testifies to the importance of defending the right of dissent against conventional media wisdom.  Now that President Bush has renominated John Roberts for Rehnquist’s position, Bush should fill the additional vacancy with a judge who has a proven record of standing firm against peer pressure.