Clint Bolick

Rehnquist's passing leaves court adrift

Posted on September 07, 2005 | Author: Clint Bolick
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To say that an era has ended is a huge understatement.

The passing of "the Chief," as William Rehnquist affectionately was known by everyone in the U.S. Supreme Court's circle, coupled with the retirement of Justice Sandra Day O'Connor, leaves the court without sure leadership for the first time in a generation.

Oddly, depending on President Bush's choice to replace him, the court could be poised for a lurch to the left, rather than the right turn predicted by left-leaning special-interest groups.

Rehnquist served on the court for more than a third of a century and as chief justice for nearly two decades. He possessed the two qualities most necessary for a successful chief: he was bright and he was a schmoozer. Though magisterial on the bench, Rehnquist was a first-rate quipster, and his poker games and high jinks with colleagues were legendary.

Those qualities allowed Rehnquist to evolve from an often-lonely dissenter in the 1970s to one of the most influential chief justices in history.

When Rehnquist joined the court in 1972, it was still in the throes of Warren court liberalism, routinely advancing causes that could not be won in the legislative arena. Though the court as a whole never fully embraced Rehnquist's conservatism, his influence moved the court toward the center.

For instance, under Rehnquist's stewardship, the court stopped routinely overruling criminal convictions, but retained the Miranda ruling that protects against abusive police interrogations. It strengthened state autonomy, but never overturned Roe vs. Wade. It struck down most racial preferences, but left the door open to preferences in college admissions.

As chief, Rehnquist was adroit in moderating his own views to bring in colleagues, and often appeared to switch to the winning side in order to exercise the chief's prerogative to assign writing of key decisions to himself so as to narrow their scope.

One area of Rehnquist's enormous influence was school choice.

In the 1960s and '70s, the court had broadly interpreted the First Amendment's prohibition against establishment of religion to embrace outright hostility to religion.

In 1983, Rehnquist cobbled together a 5-4 majority in Mueller vs. Allen, charting a more moderate course in upholding tuition tax credits for K-12 education, emphasizing that the choice of where to spend the education dollars was decided by parents, not the state.

That same slender majority held 19 years later in Zelman vs. Simmons-Harris, in which the court, in a landmark decision written by Rehnquist, upheld the Cleveland school-voucher program. For Rehnquist, it was a matter of state autonomy and an interpretation of the First Amendment true to its original intent.

For millions of children in Arizona and throughout the United States, it meant the promise of precious educational opportunities.

Rehnquist's combination of strong conservative convictions and political savvy make him a tough act to follow. Conventional wisdom holds that another justice should be elevated to chief; but historically, only about one-third of chief justices have come from the court's ranks.

For two decades, the court has been narrowly divided, usually (though less frequently lately) siding with individual liberty over state power, precisely the role the framers intended the federal judiciary to play. Judge John Roberts, the nominee to fill Justice O'Connor's position, is truly an unknown quantity. If Bush nominates a Rehnquist replacement who is less committed to conservative principles than his predecessor, it could have the effect of turning the court to the left.

While we await that decision, Arizonans should pause to mourn the passing of one of the most influential statesmen our state has ever sent to the nation's capital.

The writer is a Phoenix lawyer whose practice includes the U.S. Supreme Court, president of the Alliance for School Choice, and a senior fellow for the Goldwater Institute.

This piece originally appeared in the Arizona Republic , September 5, 2005.

Key Links:

-Bolick: "Rehnquist's passing leaves court adrift"
- National Review: "With his boots on"
-CNN: "Rehnquist to be buried at Arlington"

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