HOLDING COURT: The Legacy of the Rehnquist Court

Thursday, May 26, 2005

William H. Rehnquist has served as chief justice of the United States Supreme Court for nineteen years, the longest tenure of a chief justice in a century. How has the Rehnquist Court responded to the key constitutional issues of our times? What will be the philosophical legacy of the man himself? And who will miss him more, liberals or conservatives? Peter Robinson speaks with Kathleen Sullivan and John Yoo.

Recorded on Thursday, May 26, 2005

Peter Robinson: Today on Uncommon Knowledge: oral arguments...

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Peter Robinson: Welcome to Uncommon Knowledge, I'm Peter Robinson. Our show today: the legacy of Chief Justice William Rehnquist. William H. Rehnquist was nominated as an Associate Justice of the Supreme Court by Richard Nixon all the way back in 1971. Then in 1986, Ronald Reagan nominated him to become Chief Justice of the Supreme Court. William Rehnquist has now spent some nineteen years as Chief Justice. That's the longest tenure as Chief Justice since Chief Justice Melville Fuller stepped down in 1910. How has the Rehnquist court addressed the central constitutional issues of our day? What will be the philosophical legacy of the man himself? And who will miss Chief Justice Rehnquist more, conservatives or liberals?

Joining us today, two guests. John Yoo is a professor of law at the University of California at Berkeley. Professor Yoo clerked for Associate Justice of the Supreme Court, Clarence Thomas. Kathleen Sullivan is a professor of law at Stanford University. Professor Sullivan has many times argued before the Rehnquist court.

Title: A Law Supreme

Peter Robinson: Legal scholar Walter Dellinger, "The legacy of the Rehnquist court is going to be judicial supremacy and a willingness to set aside the judgments of the other branches of government." Chief Justice William Rehnquist legal supremacist? John Yoo?

John Yoo: Yeah, I think that's right.

Kathleen Sullivan: No, not entirely.

Peter Robinson: Not entirely. All right. William Rehnquist graduated in 1952 at the top of his class at Stanford Law School, of which you served as dean, worked as a lawyer in Phoenix where he became active in Barry Goldwater's Arizona Republican Party, nominated to become an Associate Justice of the Supreme Court by Richard Nixon in 1971, then nominated to the Chief Justice ship by Ronald Reagan in 1986. Goldwater, Nixon, Reagan. This would suggest a conservative jurist but let's begin if we could by considering a couple of items on the conservative agenda that Rehnquist failed to deliver. Notably the overturning of Roe vs. Wade, the 1973 case that struck down laws against abortion. Rehnquist's descent from that 1973 decision, "The fact that a majority of the states reflecting after all the majority sentiment in those states have had restrictions on abortion for at least a century is a strong indication it seems to me that the asserted rights to abortion is not so universally accepted as the appellant would have us believe." Yet in the almost twenty years during which Rehnquist has served as Chief, Roe has been affirmed not overturned. John Yoo will now explain.

John Yoo: Well, I think Rehnquist did get the court to go his way in some cases but on a lot of those sort of hot social issues today, he failed. Abortion is clearly the most obvious example. Another one he failed on was affirmative action. And a third one he failed in was gay rights where he was not able to build a majority around where he wanted to take the court. So I think what he did is…

Peter Robinson: Do we know that he tried?

John Yoo: Yeah, I think he did in a number of those cases, he either writes a dissent or clearly he's dissenting. It's clear what his views are. He, for example, affirmative action and abortion, he has been on record as against those social policies for, you know, probably since he was on the court as a Junior Justice. So he really and I think he tried to push the court in that direction but he just couldn't do it. He could not convince the center of the court to go with him on those issues. He succeeded in other areas but not on the ones that are most important to conservatives today.

Kathleen Sullivan: But Rehnquist did lead the court to make a major conservative revolution in the field of federalism. More than any other field, that's where he had an agenda to roll back the power of congress and increase the protection of the states from national encroachment.

Peter Robinson: I want to come to federalism especially since you just argued a case before the court. I want to come to federalism in a moment or two but first I want to push this question of Rehnquist. There was a feeling that Rehnquist would lead a more thorough going conservative revolution if you look at the commentary when he elevated to Chief in '86, and then it just didn't happen. Let me--1992, Planned Parenthood vs. Casey where I don't know that people know what was going on inside the court but the Blackmun papers have been released and it seems to be the case that Justice Anthony Kennedy, also a Reagan appointee, was prepared to vote to overturn Roe then changed his mind, earning the nickname Flipper, voting to uphold Roe instead. Now here's the question, as Chief Justice, did Rehnquist do all that he ought to have done to hold Anthony Kennedy in line? We know that Earl Warren, earlier Chief Justice worked over his justices pretty hard when he wanted them to vote in a certain way. What do you think?

Kathleen Sullivan: The Chief Justice is not the president. He doesn't have command and control authority over the other justices and it takes five votes that have to be consensually given. There's no sort of party line discipline within the Supreme Court. So we make a mistake if we think that the Chief Justice has the ability to deliver a majority of the court the way the Senate Majority Leader or the Whip does. But so I don't--there's no doubt that Chief Justice Rehnquist thought that Casey was wrongly decided but let's be clear that Casey, while it did not overrule Roe versus Wade, did roll back substantially on the right of access to abortion by making it easier for the states to impose regulation on it, made it easier for the states to impose reporting requirements, delay requirements, informed consent requirements, made abortion permissible to make more expensive. So it was not a complete victory for the pro-choice side.

Peter Robinson: Next, how has Rehnquist used his powers as Chief Justice?

Title: Order in the Court

Peter Robinson: It is my impression that as I mentioned Earl Warren could give people, so to speak, the Lyndon Johnson treatment, he really exercised to the full powers of persuasion over his associate justices. Rehnquist, by contrast, he gave an interview within the last couple of years in which he was asked how would you like to be remembered and he said as a good administrator. So there's a kind of paleness so it would appear, I think, to ideological conservatives that somehow or other he wasn't quite working the case as he--or the agenda as he might have. Is that simply an application of political categories to the court that's inappropriate? What do you think?

Kathleen Sullivan: Yes, I think he was--has been a superb administrator on the court and all the justices agree on that and he's been a fair administrator on the court, whereas Chief Justice Burger was known to play favorites and to relegate certain justices to bad cases if they defied him. Chief Justice Rehnquist has been thought of as fair in the assignments but let's look at what good administration can do. It can get you to decide Bush versus Gore in the fastest time any decision has ever been rendered by the Supreme Court from the point of briefing to the point of decision. And if you think of that as a pivotal case in which a very momentous decision was made, certainly Rehnquist's leadership as an administrator getting that case briefed and argued and decided in the schedule that he did, determining the election before January when it would have gone to the congress, that's a real feat of a strong administrator.

Peter Robinson: He was able to stitch that quilt together?

John Yoo: I want to pick up on this comparison between Warren and Rehnquist…

Peter Robinson: Yes.

John Yoo: …because one thing Rehnquist and Burger did which was different than Warren is they stopped allowing the justices essentially to argue with each other in person about…

Peter Robinson: Explain that.

John Yoo: …cases. Well after there's an oral argument, there's something called conference when the justices…

Peter Robinson: Now when they're in session, they hear oral arguments twice a week as I recall?

John Yoo: Yeah or sometimes…

Kathleen Sullivan: Two to three days a week.

Peter Robinson: Two to three days a week and after each oral argument, they retreat to a justice's only conference room.

John Yoo: Right.

Peter Robinson: Only the nine justices of the court.

John Yoo: Only nine. And they have a meeting where they say how they're going to vote and talk about the case. And I think it used to be the case that under Warren, the justices would have sort of free flowing discussion, much like the one we're having here. It would start out I think in order of seniority but it didn't have any fixed, you know, five minutes for you, five minutes for you then invoke. And that allowed, I think, someone like Warren or Brennan to exercise leadership by discussion and conversation and persuasion. I think under Burger and in Rehnquist, the conferences become more like a voting in a legislature. They go in seniority. They have very little time to say what they're going to do and they vote seriatim and there's no discussion. There's no back and forth.

Peter Robinson: And incidentally Scalia is on record as describing exactly what you said and saying he does not like the lack of discussion in conference.

John Yoo: And the thing is that prevents them from persuading each other, which is why you see oral argument becoming so active now because now junior justices use oral argument to try to persuade each other because they…

Peter Robinson: And Rehnquist has said…

John Yoo: …can't do it in conference.

Peter Robinson: Rehnquist has said on the record in interviews that he doesn't see any point in all of this free flowing discussion because these justices have their minds up when they come into the conference room in the first place.

John Yoo: See I don't know if that's true. I think that's the difference between the Warren court and the Rehnquist court in part is that I think Warren was able to persuade other justices. For example, if you look at what happened with Brown versus Board of Education, it's clear that he did play a big impact on persuading other justices.

Peter Robinson: Chief Justice Warren?

John Yoo: Chief Justice Warren to bring on people, to make it a majority court, to make it unanimous. It's hard to imagine Rehnquist actually doing that. I mean, if you were to think about Bush versus Gore as being another kind of case like that where if someone could have exercised leadership to bring the court institutionally together, he wasn't able to do that. It was a very fractured court in the end.

Peter Robinson: Let me ask John about another apparently contradictory aspect of William Rehnquist's judicial record.

Title: King Rehnquist's Court

Peter Robinson: First I'll quote John Yoo, "Rehnquist sees his job as interpreting the constitutional text in light of its structure in history rather than acting as a philosopher king." Bear your own words in mind John, Chief Justice Rehnquist once again fails to deliver on an item in a conservative agenda. The overturning of Miranda versus Arizona, the 1966 decision that requires the police to read accused their rights. The question of a overturning Miranda comes up in the 2000 case Dickerson versus the United States and Rehnquist joins the majority in re-affirming Miranda although he's been on the record saying that Miranda was wrongly decided. He re-affirms Miranda and writes the majority opinion and he writes, "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." If those are not the words of a philosopher king, what are they, John Yoo?

John Yoo: I think what happened in that case was he has this principle that goes beyond what he thought about Miranda which said congress cannot overturn a Supreme Court decision. And so when it comes back to the original question about supremacy, about whether he's a supremacist, and he was conflicted in Dickerson. And in the end, in Dickerson, the judicial supremacist won out over Miranda. And in cases on the merits that did involve this question of the separation of powers, he did vote to restrict Miranda in a series of cases over time. And so he was very successful in that regard.

Peter Robinson: So it's the legal supremacist coming through?

Kathleen Sullivan: No, well let's not call him a legal supremacist. He believes in the separation of powers and checks and balances. And he doesn't like it when Congress sticks a thumb in the eye of the Court, which is a co-equal branch, by trying to overrule it by statute. We have a provision for overruling constitutional decisions. It's called the amendment process. And if Congress tries to do something by statute, it gets struck down. The Rehnquist court struck down another very popular conservative statute called the Religious Freedom Restoration Act, again because it was Congress trying to overrule the courts, separation of church and state decisions by statute rather than amendment. And in the name of state's rights against the Congress, Rehnquist struck that down too. But let's remember that by the time Dickerson is decided, the Police Chiefs around the country are united in liking Miranda. It gives them a nice bright line, safe harbor to get confessions introduced in evidence. That was why Attorney General Meese was not successful in leading the charge against Miranda and Rehnquist is a traditionalist. And that's another conservative principle that he represents. Traditions embedded in police practice would have appeal to him.

Peter Robinson: Nice job of describing Rehnquist. Here's Scalia in dissent on Dickerson. Rehnquist's opinion, "converts Miranda from a," this is Scalia, "converts Miranda from a milestone of judicial overreaching into the very Cheops pyramid of judicial arrogance." But explain to me how these men who see this case so differently, so differently that Scalia is clearly furious when he writes his dissent. How can they both be conservative?

Kathleen Sullivan: Well, I think Rehnquist is much more of a pragmatist. And Scalia is a texturalist, an originalist who for the most part but not always, takes that where it leads him. And sometimes that takes Justice Scalia into very seemingly liberal positions like striking down the sentencing guidelines or insisting that criminal defendants have a right to confront the witnesses against them, that sometimes look like liberal decisions on criminal procedure because he finds them in the text of the constitution. Rehnquist follows more a pragmatic approach. If there's a widespread practice, he'll defer to it. He has a lot of deference to legislative majorities, whether they have done things that are liberal or conservative.

John Yoo: I think what also happened is that Scalia is like Rehnquist was twenty-five years ago. He's like a young version of Rehnquist. When Rehnquist became Chief Justice, he became much more pragmatic. And there's some cases where he does go with a majority that's sometimes surprising because he feels the institution of the court requires the Chief Justice to be in the majority or there be a strong majority.

Peter Robinson: So he's trying a different role because he's in a different position on the court. It's not so much a change in temperament as different--he feels different pressures.

John Yoo: Yeah and because--some of this is if you look at Rehnquist when he was a younger man, when he was an Associate Justice, a lot of the things that Scalia's pushing as his positions now were really Rehnquist positions when he wasn't Chief Justice and that Rehnquist kind of succeeded at getting to the center of the court. But in some other areas, Rehnquist isn't going to go as far as Scalia now because institutionally he can't do it as a Chief Justice. Undoubtedly that's why it might not be such a great idea for conservatives to want Scalia or Thomas to be elevated to take his place because they'll have to do the same thing.

Peter Robinson: Let's turn to what is perhaps Chief Justice Rehnquist's signal accomplishment.

Title: Not Your Father's Constitution

Peter Robinson: The Los Angeles Times, "If there is one principle Rehnquist has spoken for forcefully in his years on the court, it is federalism. For four decades in the middle of the last century, the Supreme Court didn't reject a single act of congress on the grounds that the national legislature lacked the power in our federal system. Rehnquist led the charge to revive the notion of sovereign states and a federal government of limited powers." Gun Free School Zones act, Violence Against Women Act, Religious Freedom Restoration Act. Tell me about those and the meaning of the Rehnquist court striking them down.

Kathleen Sullivan: The Rehnquist legacy absolutely will be about the resurrection of federalism principles and states' autonomy from federal control. So in striking down the Gun Free School Zone Act, for example, popular act, Rehnquist led the court to say there is no regulation of commerce here. Possession of a school--possession of a gun near a school is not a commercial activity. Congress has no business regulating that. Congress has limited powers. And unless there's a tie to interstate commerce, it has no business here. Same thing with the Violence Against Women Act, Civil Damages Provisions, Religious Freedom Restoration Act, he said well Congress can come in and correct violations of people's rights by the states. That's why we have the Civil Rights Amendments. They were to bring in the reconstruction of Congress' view that you had to stop the states from being outposts of tyranny. But said Rehnquist, we don't see people tarring and feathering Catholics today. We don't see people engaged in gross violations of religious liberty with state backing. So you can't have a Religious Freedom Restoration Act against the states. You can regulate what ought to be state controlled activity only if there's an interstate commerce hook, only if there's a correction of violations of civil rights by the states but otherwise Congress' power is limited.

Peter Robinson: Okay. Now next question then. Has Rehnquist and the Rehnquist court begun to revive the notion of limited federal powers over the states or has it in his time on the court, produced a fully articulated doctrine? That is to say, Congress now knows where it may go and it may not go and what it may do and what it may not do or have they just gotten started? Is there more to come? What do you think?

John Yoo: Kathleen may disagree with this. I think it's just a start because primarily, aside from the Violence Against Women Act, Congress has--the court has not touched any of the sort of major statutes that depend on expanded federal powers, the environmental laws would be the best example of that. The other thing it hasn't done--it hasn't put its--stuck its nose into the other big area where the federal government does regulate private activity at the expense of states which is the spending clause, all the, you know, riders attached to federal funds. The court--everybody knows that the court is going to have to resolve that issue sooner or later. The Rehnquist court didn't touch it in any meaningful way. So it, you know, a lot of these laws, you know, were passed as symbolic legislation but they got struck down and they didn't really spark great outrage. It wasn't like in the 1930's in the New Deal period when the court really did provoke the political system to respond. So you could say a lot of this legislation wasn't really at the core of anybody's political agenda so that they were risking much capital and striking those laws down. So it'll really be the next court that we'll see whether this really continues or not.

Peter Robinson: But you're pleased--from your point of view, you're pleased that he's at least laid a predicate. He's done something on which future courts can think of…

John Yoo: Yeah, I think what he did is the equivalent in baseball of a brush-back pitch. He basically told Congress "watch out, you know, you can't regulate everything in the world" which some people thought Congress could. And so he just said be cautious. And that I think you have seen an effect in Congress, that people are a little more aware that if they really did go too far, court might strike them down. But there's no clear rules as you might suggest, that tell Congress exactly what it can and cannot do.

Peter Robinson: This brings us to Rehnquist's philosophical legacy.

Title: Acting Out

Peter Robinson: Kathleen, I'm quoting you. "The Rehnquist court's approach to states' rights derives not from the constitution's text but rather from a structural reading of the kind usually associated with liberal causes." I'm quoting her but you get ready to answer this John. "Nothing in the original text says that we have the right to private sexual activity but the text is likewise silent on whether the federal government may impose liability on the states. We are all judicial activists now."

John Yoo: Did she really write that?

Peter Robinson: She wrote that. It's a good line. It's a good line. William Rehnquist judicial activist? John?

John Yoo: I think if you being--by I mean by judicial activist that he has struck down federal laws, then he is an activist but the court--I don't think that's the definition of activism and we could have a discussion about that. But activism really is to--are judges importing their own individual preferences into their decisions and not following what the law or textual structure requires. Kathleen has a very point in that passage was--there's some aspects of the federalism revolution which are not attached to the text in the same way that Rehnquist has criticized abortion, substantive de-process, privacy rights. And he has said--he has admitted as much in these opinions. He says some of these opinions particularly the immunity of states from damages…

Peter Robinson: Hang on now. Let me keep him on the spot for a moment longer. Stuart Taylor in the National Journal, "Unlike Scalia and Thomas, Rehnquist does not purport to hew consistently to the original meaning of the constitution or any other overarching theory of constitutional interpretation. He has been far more concerned with getting the majority than with crafting a persuasive constitutional justification." So here is the rap on Chief Justice William Rehnquist. On the positives, he is a good administrator. From a conservative point of view, he has a conservative temperament. On the other hand, that's all he has is a conservative temperament. He does not have a rigorous or judicial philosophy and really it's unsatisfying from the Scalia or Thomas point of view or the John Yoo point of view.

John Yoo: Well, I think methodologically he doesn't have any strict methodology like Thomas or Scalia do and that I will only look at the text or I will only look at the original understanding. That's what I think he did have--does have a philosophy which was he was interested in decentralizing government and pushing decisions to lower levels of government, to respecting private associations, churches. And so there are all these decisions which kind of don't make sense unless they--I think unless you look at it from this perspective. So, for example, he upholds the right of the Boy Scouts to exclude gay scoutmasters if they want. He uphold--he really--another big thing he did was expand the right of religious organizations to participate in public life. He--and then federalism.

Peter Robinson: Right.

John Yoo: So I think a lot of what he's doing is he is trying--his overall philosophy was to try to decentralize power away from the federal government, to rely on the sort of Tocquevillian institutions, you know, private associations and so on which Tocqueville thought were the heart of American democracy.

Peter Robinson: John, you have just admitted it. Chief Justice Rehnquist is not relying on the constitution itself but on political models that he deems suitable and useful. What do you think?

Kathleen Sullivan: Some of those political models are implied in the constitution. Federalism is a political model.

Peter Robinson: You're bailing Yoo out? Go ahead.

Kathleen Sullivan: Why not? I--let's distinguish here between conservative results and conservative principles. You might admit that states' rights or federalism is a conservative principle. It's a principle that was based on a fear of tyranny, tyranny that might interfere with property rights at the founding. And yet conser--if we really stay true to federalism, we ought to be allowing medical marijuana to be used in California in defiance of federal law. We ought to be allowing physician assisted suicide in Oregon in defiance of federal override. We ought to be allowing stem cell research and use of embryonic research in California and gay marriage in Massachusetts. So if you--what Just--sometimes Justice Scalia I think to his great credit, follows the constitutional principle wherever it takes him, even if it leads to a result in which the government loses in a criminal case or you--Justice Scalia said you ought to free the enemy aliens in--the enemy combatants--so-called enemy combatants in prisons in Guantanomo because the write of habeas corpus hadn't been suspended and they hadn't been able to get access to a court. So conservative principles sometimes take you to what may seem like liberal results.

Peter Robinson: And now final thoughts on Chief Justice William Rehnquist.

Title: Absence Makes the Heart Grow Fonder

Peter Robinson: Last two questions. I begin setting up the first of these by quoting Jeffrey Rosen, his piece in The Atlantic, "He may be key," Rehnquist, "maybe the last of the old-fashioned judicial conservatives who already look far more judicious than the conservatives who have arisen in their wake," the Scalia figures, "and liberals may find themselves missing Rehnquist more than they could ever have imagined." Five years from now, a decade from now, will liberals miss William Rehnquist? Kathleen?

Kathleen Sullivan: I hope not. I hope that the senate will wisely advise the president and the president will wisely choose people who are more in the mold of Chief Justice Rehnquist, not because he applies his own views. I disagree with you about that. I think to interpret the constitution in a practical way for evolving times is part of the job the Supreme Court was given to do. The constitution is a very short, brief document that doesn't tell you how to execute it in a war on terror at the time of the internet.

Peter Robinson: So you think liberals won't--liberals won't miss Rehnquist because the president will be well advised to appoint a pragmatist rather than a strict originalist such as Scalia or Thomas?

Kathleen Sullivan: That would be a great result.

Peter Robinson: Whaddya think?

John Yoo: I think it would love that result. I don't think it's a high probability result either because I do think there's been a passing of a generation in that conservatives today--legal conservatives--they are much more attached to methodology and are much more combative and less pragmatic than I think Rehnquist has been quite successfully so.

Peter Robinson: Let me ask the final question then. You're both at law schools and you're both teaching. Five year--in the range of from this moment to five years from now, who is the more interesting figure to law students and indeed whom will you be teaching more--more useful in terms of instruction--Rehnquist or Scalia?

Kathleen Sullivan: Scalia is the more fun to read because he's intemperate and he's colorful. Rehnquist is the greater figure in the law because he's used his approach to get results that actually other justices can join in on. And so the legacy of Rehnquist leaves more behind it that is the law and Justice Scalia…

Peter Robinson: Is he a great Chief Justice?

Kathleen Sullivan: He is a great Chief Justice. He may be the greatest Chief Justice since Chief Justice Marshall.

Peter Robinson: Wow!

John Yoo: Greater than Warren, you think?

Peter Robinson: She said it. She said it. Don't ask her to take it back.

John Yoo: I think he was--I wouldn't put him in the top tier with Warren and Marshall but I think he's in the second tier of Chief Justices right after that.

Peter Robinson: And who's the more interesting to…

John Yoo: Oh Scalia's clearly the most interesting one to teach and students love to--because Scalia's so provocative.

Peter Robinson: But you'd agree with Kathleen's formulation that Rehnquist is the greater figure.

John Yoo: I don't know--I mean, it's hard to tell because Scalia, I think, has had an enormous impact of the intellectual thinking of the law. A lot of students--generations of students now are coming up worried about methodology and originalism I think thirty years ago people just didn't even care about. So I think Scalia has had a big impact on the law but Rehnquist has had a big impact on decisions, on the way the court has come out.

Kathleen Sullivan: Chief Justice Warren presided over a great court but Justice Brennan was so much the leader and architect of that court that I think I have to give more credit to Chief Justice Rehnquist in producing the results of his era than Warren did in his.

Peter Robinson: The Rehnquist court was the Rehnquist Court.

Kathleen Sullivan: I think in important respects, very much so.

Peter Robinson: Kathleen Sullivan, John Yoo, thank you very much.

Peter Robinson: I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.