Chief Justice William Rehnquist
Washington enjoys nothing so
much as a cat fight between friends, and last week's spat between Supreme Court
Chief Justice William Rehnquist and the Republican Senate was a doozy. In his
annual report on the judiciary--usually a highly unmemorable document--the
chief justice criticized the Senate for stonewalling President Clinton's
judicial nominees. Noting that 10 percent of federal judgeships are vacant and
caseloads are rising, Rehnquist warned that "the Senate should act within a
reasonable time to confirm or reject [nominees]. Some current nominees have
been waiting a considerable time for a Senate Judiciary Committee vote or a
final floor vote." By Rehnquist standards, those were fighting words.
Senate
Judiciary Committee Chairman Orrin Hatch tried to shift the blame to President
Clinton for nominating "liberal activists," but he was too late. The spin had
been spun. Editorial pages and pundits agreed: If a conservative
ideologue like Rehnquist says the Senate is crippling the federal courts,
then Something Must Be Done.
The reaction to Rehnquist's comments highlights a common
misunderstanding about the chief justice. Rehnquist is popularly viewed as a
conservative soldier first and last, a partisan in the service of the
Republican revolution. But what really defines Rehnquist in his role as chief
justice is not conservatism--though he's certainly very conservative--it's
Taylorism. Like Frederick Winslow Taylor, the apostle of "scientific
management," Rehnquist champions rationality and efficiency above all.
Once upon
a time, Rehnquist was a real bomb thrower. The chief justice is a
Republican to his bones. Raised in a Republican home in an all-Republican
Wisconsin town, Rehnquist eventually settled in Republican Arizona, where he
allied early and avidly with Barry Goldwater. In 1969, after 16 years in
private practice, Rehnquist came to Washington to serve Nixon as an assistant
attorney general. Two years later, Nixon appointed him associate justice.
From an early age, Rehnquist believed
passionately in states' rights. (This principle has haunted him. Click to read
why.) He was appalled by the way federal courts were intervening in state and
local governance, coddling criminals, and expanding individual rights. He was
an early convert to judicial restraint, concluding that federal courts should
butt out and let elected governments do their job. Rehnquist was the Burger
court's outlier, writing lonely, sclerotic dissents and preaching a
conservative legal philosophy long before it became popular. (Rehnquist is a
supreme rationalist, and even his critics admired the analytical force of his
dissents.)
The
Supreme Court slowly began to catch up to Rehnquist, and in 1986, Reagan
elevated him to chief justice. But after 11 years, it's still hard to
characterize the Rehnquist court. There isn't a consistent conservative
majority, and philosophically, the court is a muddle--"a pudding without a
theme," says Yale law Professor Akhil Reed Amar, quoting the old saw. It's more
conservative than its predecessors (especially on race and crime), but most of
its major decisions (on abortion, gay rights, Internet free speech) have been
moderate or liberal. Instead, what seems to define the Rehnquist court is
Rehnquist's style. His success on the court is a success of process: Rehnquist
has made the Supreme Court do less and do it more rationally. He has not grown
in office. He has shrunk in it.
One of Rehnquist's proudest achievements as chief justice
has been to pare the court's docket. The Burger court heard oral arguments in
160 or more cases every term. Rehnquist and his colleagues hear half as many
cases. The result, wonderfully satisfying to Rehnquist, is less judicial
meddling. "His great contribution as chief justice is that the role of the
Supreme Court today is smaller than it was 20 years ago," says a former
Rehnquist clerk. Rehnquist has pushed to minimize federal jurisprudence at
every level. He may have requested more judges, but only because the courts are
clogged and slow. He has urged Congress repeatedly to stop federalizing crimes.
Fundamentally, Rehnquist doesn't want more federal judges; he wants fewer
federal laws.
The two
areas of law that matter most to Rehnquist are habeas corpus reform and
criminal-procedure reform. He campaigned vigorously and successfully to
restrict the number of habeas appeals for death row inmates. This has limited
federal involvement in state cases and, more importantly, sped up the judicial
process. "He has intense anger about convicts who after 13 years are on their
seventh appeal. He thinks that things should not be chewed on endlessly," says
Emory University legal scholar David Garrow. In criminal procedure, Rehnquist's
decisions have weakened the Miranda rights, nibbled away at the exclusionary
rule, and granted cops more leeway to conduct warrantless searches. These
procedural reforms remove the "technicalities" that Rehnquist believes clutter
and pollute the legal system.
Rehnquist's decisions, too, are becoming
increasingly streamlined. Associate Justice Rehnquist was famed for his witty,
explosive writing. Chief Justice Rehnquist leaves the verbal pyrotechnics to
Antonin Scalia. Today, Rehnquist's opinions are skeletal: Scholars complain
that his reasoning is almost nonexistent. Rehnquist's pithiness is the
pithiness of the victor. Two decades ago, he wrote extensively because he had
to explain his unfamiliar views to a liberal world. Now, his views are
mainstream law. He doesn't need to elaborate on them.
Even the court's operations
are evidence of Rehnquist's efficiency. Under Burger, the conference--the
meeting where justices discuss cases--was a notoriously windy affair.
Rehnquist's conferences are no-nonsense. He permits little discussion--he
doesn't think it changes anyone's mind--and races through votes. He prods
fellow justices to turn in draft decisions promptly and penalizes tardy
colleagues by withholding new assignments. The justices who disagree with
Rehnquist politically love him as a colleague: He's fair, agreeable, and
fast.
Until two years ago, it was
ritual among Supreme Court-watchers to speculate that "this term" would be
Rehnquist's last. He was too old, his back hurt too much, he had too many
outside interests ... But recently, the speculation has subsided. There are two
explanations for why the 72-year-old Rehnquist is staying put. One is
political: He's enough of a Republican not to quit until Clinton is out of
office. I favor the second explanation. Why would he bother to retire? Every
year he has less work to do. He's made sure of that. The efficient justice
arrives at the court around 9 and leaves by 3--what other job in Washington has
such sweet hours?
