Remembering Chief Justice of the United States, William H. Rehnquist

I have no personal remembrance, of course, but my legal education, coming as it did at the tail end of Chief Justice Rehnquist's remarkable and long-lived tenure, was at least as steeped in his legacy as in that of the late Chief Justice Earl Warren. Moreover, my current work constantly sets before me evidence of his legacy -- as it does the legacy of Chief Justice Warren.

Are you getting this? Chief Justice Warren and Chief Justice Rehnquist are probably the two most formative forces in modern American jurisprudence, and in our current understanding of the Constitution of these United States. That's a big thing, folks. A very big thing.

Dahlia Lithwick does a great job of putting Chief Justice Rehnquist's long tenure in perspective.

No one will ever accuse Rehnquist of having been a liberal, or even a moderate. But . . . time and again, in cases that implicated the supremacy of the judicial branch—cases that suggested that states or Congress might have the last word—Rehnquist was willing to part with his ideological buddies to promote a higher value than intellectual purity: the court itself.

Something else Rehnquist was not: He was not an Earl Warren. He did not expect or demand that the changes he sought would come with sudden, dramatic moves. He was the gentlest of constitutional chiropractors and—with the exception of Bush v. Gore—you rarely heard a crack or a snap over his tenure. Rehnquist didn't cajole his colleagues into unanimity and rarely used his assignment powers as strategically as his predecessors had. Indeed, he was notoriously fair about assigning cases. Rehnquist also refused to let the work of the court continue to grow exponentially. Where the Burger Court used to hear argument in 160 or so cases each year, the Rehnquist Court heard closer to 80. Rehnquist's style was to nudge the law back to the right slowly and inexorably, on issues ranging from civil rights to habeas corpus, from school busing to religion in public life. But he didn't throw constitutional bombs, and as a result his Supreme Court, as "activist" as the Warren Court by every possible measure, was not reviled and feared so much as respected and ignored.

Aside: The nearly elegiac tone of Lithwick's writing about Rehnquist above contrasts interestingly with her noting, just a day or so before Chief Justice Rehnquist passed, "the Rehnquist Court's newfound love affair with the 11th Amendment—a piece of truly bonkers constitutional doctrine that's being used to keep state employees from suing their own state governments and is a far broader application of the idea of sovereign immunity than the amendment itself contemplates."

But of course we must forgive the commentariat its excesses and permit it to leave its axes in the apse of the chapel at which we mourn the passing of a great public servant -- a designation that no one with any intellectual integrity can deny Chief Justice Rehnquist. One can only hope Judge Roberts, heir apparent to the Chief's seat for a long time to come and former clerk to Chief Justice Rehnquist, has been paying attention to the machinations of his former boss. At least administratively, we could do a lot worse than to have Judge Roberts emulate Chief Justice Rehnquist, especially insofar as Judge Roberts' tenure as chief very likely will rival Chief Justice Rehnquist's thirty-four-year tenure on the Court.