William Rehnquist

Conservative US Chief Justice who presided with moderation over the Supreme Court
Click to follow
The Independent Online

Was it a modest man's way of poking fun at himself, and deflating the importance of the mighty office he held? Or was it simply a wry tribute to the masters from a lifelong fan of Gilbert and Sullivan? Some time in 1994, William Rehnquist, the 16th Chief Justice of the United States, appeared in a new robe. Until then, the head of the Supreme Court had worn the same plain black gown as his eight colleagues. One day, however, Rehnquist's had suddenly acquired four golden bars on each sleeve. It was modelled on one he had seen in a production of Iolanthe, worn by the Lord Chancellor who deftly amended a law by adding the word "not", and thus saved a company of fairies from a terrible death.

In the real world, it was not so easy for Rehnquist, as he presided for 19 years over the US Supreme Court - the third branch of the constitution and, whether it likes it or not, the ultimate arbiter of the culture wars that divide American society. But so adroitly did he carry out the job that history may well remember him as one of the great Chief Justices in US history.

Rehnquist was a conservative, but an old- fashioned one, as distant as could be imagined from the doctrinaire modern variety that tends to drown out opponents by sheer volume. His views were consistently right-wing, but invariably tempered by moderation and common sense.

Most important of all, he was a superb organiser of the court's business. He abhorred windy and protracted argument. Rehnquist was a creature of habit, arriving at the court at 9am each morning, and rarely staying beyond 4pm. In his deft, self-effacing way, he held together a court that was often sharply divided and which contained its fair share or more of outsized intellects and tender egos.

He smoothed over rows, and almost never allowed himself to become angry. "I have a very high boiling point," he once said. Never was the Rehnquist style more evident - and more necessary - than in his low-key handling of the Clinton impeachment hearings of early 1999 over which, as the constitution stipulated, he presided.

In his approach to the central duty of the court, to uphold the constitution and make sure that the laws of the land conformed to it, he was similarly measured. He was uncomfortable when the court was expected to resolve social problems, and hated anything that smacked of judicial meddling. Under Rehnquist, the high court halved the number of cases it agreed to hear each year, so that more time could be spent on getting the big decisions right.

Though not among the "originalists" who are convinced that the US constitution is a sacred, timeless text whose every word should be taken literally, Rehnquist believed that only rights specifically laid out by the constitution were protected.

The approach had its weaknesses. His outlook made him deeply suspicious of "new rights" established by the Supreme Court, and led him to take a dim view of the judiciary's involvement in the campaign for civil rights. This was a political matter, he argued, in which the courts had no business.

The civil rights struggle had already been decided by the time he was appointed an associate justice by Richard Nixon in 1972. But it was quickly replaced by the battle over abortion. A year after he joined the court, Rehnquist was in the dissenting minority opposed to the historic Roe v Wade ruling of 1973 which made abortion legal.

To this day, the issue polarises the country. But Rehnquist was nothing if not a pragmatist. He was well aware that a majority of Americans do not believe that abortion should be outlawed. Rehnquist's court slightly circumscribed the practice, but never took up a frontal challenge.

In conflicts between federal and state authority, Rehnquist usually came down on the side of the latter, on the principle that anything not specifically stated by the constitution to be a matter for federal government should be left to individual states. In retrospect that may prove the main legacy of the Rehnquist court - even though for its most momentous single ruling, he and his colleagues turned the principle on its head.

The case, of course was Bush v Gore [2000]; the issue was whether the Florida Supreme Court's ruling for a statewide recount (that might given Al Gore the state's 25 electoral votes and with it the White House) should be overturned. Rehnquist and his fellow conservatives might have been expected to stay out of the dispute. The same applied in reverse for the four more liberal justices in the minority. In other circumstances, they might have argued for the supremacy of federal power. Not this time, if it meant curtains for Gore's chances of the presidency. In Rehnquist's court, politics could trump legal logic.

Rehnquist's sober style reflected his upbringing. The grandson of Swedish immigrants, he was raised in an affluent Republican-leaning suburb of Milwaukee. During the Second World War he served in the Army Air Corps in Morocco and Egypt, before returning to complete his education in the United States. He took master's degrees at Stanford and Harvard, before attending Stanford Law School where he graduated first in a class that also included his future court colleague Sandra Day O'Connor.

In 1952, he secured a coveted year-long Supreme Court clerkship with Justice Robert Jackson, before moving to Phoenix in search of conservative politics and warm weather, to ease the back pain that troubled him throughout his life. There he moved into the orbit of Barry Goldwater, even writing speeches for the Arizona Senator during his 1964 presidential bid. Goldwater lost, but in 1968 another Republican, Richard Nixon, won the White House, and this time Rehnquist moved to Washington for good.

His old friend Richard Kleindienst had become Deputy Attorney General, and Rehnquist was given charge of the Justice Department's Office of Legal Counsel, which also handled the vetting process for Supreme Court vacancies - two of which arose in 1972. As candidate after candidate was dropped, Nixon's eye fell on the man he was apt to call "Wrenchburg", whose unquestioned legal brilliance were buttressed by solid conservative credentials.

Rehnquist's confirmation was not entirely smooth sailing; he came under fire from Edward Kennedy and other liberal Democrats for his earlier support for segregation, and 26 of the 100 Senators voted against him. But over the years the doubts vanished.

In a rare television interview in 2004, he was asked how he would like to be remembered. As a good administrator, was Rehnquist's reply, he hoped he had run "a relatively smoothly functioning court". That, like the man himself, was something of an understatement.

Rupert Cornwell

Comments