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The Grand Duke's Revolution

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



William H. Rehnquist didn't change his conservative legal principles much during his generation-long tenure on the Supreme Court. He stayed pretty much to the jurisprudential right for decade after decade. During his tenure, it was the law — it was the country! — that moved toward his views of limited government, greater law enforcement powers at the expense of individual liberties, and more state-sanctioned religion in public life. Once a lonely dissenter on a liberal court, Rehnquist died late Saturday night as a long-enduring symbol of the vast conservative revolution that has altered the nation's legal and political landscape.

And he has done it with a certain amount of nerdy flair. Most people won't remember Rehnquist as the scion of federalism. Most people couldn't recite if their lives depended upon it a single line from a single ruling authored by Rehnquist. He's no Antonin Scalia when it comes to nifty rhetoric on the modern court and he'll never be known as the Oliver Wendell Holmes or Louis Brandeis of his generation. He's never been one for heat over light.

Which makes it ironic that people likely will remember Rehnquist not for his legal principles or judicial standards and temperament but instead (first) for presiding (impeccably) over President Bill Clinton's Senate impeachment trial. They will remember him for those little extra yellow stripes he added to his robe while acting as the lone grownup in a room full of children back in the winter of 1999 — remember how he used to walk into the chamber day after day? — and for his widely-known love of Gilbert and Sullivan productions. Posthumously and with great reverence, let's call him today the "Grand Duke" of the Supreme Court, in honor of those musical heroes of his who used that title for one of their productions.

The Grand Duke also will likely be remembered most for his biggest failure. In the most important case of his long tenure as Chief, with literally the whole country and the world watching and the most important job on the planet hanging in the balance, Rehnquist was unable to cobble together in December 2000 any sort of bipartisan Court consensus in the case of Bush v. Gore. That failure, and the imprecise language and questionable rationale of that shoddy decision, will forever be known as one of the low marks in the court's long history.


The court's right wing, and even its more moderate center, turned its back on core conservative (and moderate) philosophies in order to stop votes from being counted in Florida. The Rehnquist Court, famous for siding with state autonomy over federal intrusion, sided instead with federal intrusion over state autonomy. It was a ruling that helped further the politicization of the the judiciary in a way that has wrought significant damage since to the federal courts. And it was a ruling that even today still seems more an exercise of raw political power than reasoned legal judgment.

It's a shame, really, that these two things — the sordid impeachment saga and the zany recount fiasco — ended up so high in the Grand Duke's obituaries this weekend. His tenure on the Court, and his meaning to the country, amount to so much more to that. He literally changed the way the Court does business, further restricting by no small amount the number of cases the Justices accept each term. In doing so, he restricted the reach of the Court's influence on our daily lives. He also streamlined the deliberative process for Justices, which is either good management or imperiousness, depending upon your view. He ran a tight ship and no successor as Chief Justice is likely to be able to go back to the "good old days" when rulings took even longer to churn out than they do now.

The Grand Duke's most important substantive legal legacy is the return rise of the doctrine of federalism, the concept that federal power and authority may not run roughshod over states' rights. The Court's reliance on federalism has meant that Congress' authority to legislate in certain social and economic areas has been curtailed more than it has been for decades. It is not a coincidence that this legal philosophy meshes neatly into the prevailing conservative political philosophy that strives for greater authority for states at the expense of federal control. It's also more than a little ironic that the very same folks who decry "judicial activism" do not recognize its applicability when it comes to Court rulings that countermand the will of Congress.

On federalism and other darling issues for the judicial right, Rehnquist was clearly ahead of the curve. His early dissenting opinions, when it still was left of center, offered a world view that seems remarkably prescient given the political environment today. He was ahead of his time legally and politically and you don't get to say that about many Supreme Court Justices. During his tenure, the Court also dramatically increased the power and authority of law enforcement officials to search people and seize property even as it affirmed the right of all suspects to be read their "Miranda" rights before questioning. And the Rehnquist Court, with the Grand Duke leading the way, also began to lower the wall that separates government from religion in America life.


Some legal scholars recently have suggested that the power and influence of the "Rehnquist Court" already is on the wane. This is true — but only to a certain extent. It is true that the Grand Duke has been less able recently to rein in Justices Sandra Day O'Connor, David Souter, and Anthony Kennedy, all of whom also were appointed by Republican Presidents. And it is also true that Rehnquist and his colleagues on the Court's far right — Justices Clarence Thomas and Antonin Scalia- have lost many major battles in recent years, including cases affecting affirmative action, gay rights and the death penalty.

But these losses haven't erased the decades-long rightward drift that the Court —and by extension the entire federal judiciary — has taken on the Grand Duke's watch. It could take a generation or more for this drift to halt or reverse itself. The Rehnquist revolution thus was as dramatic as was its predecessor revolution enabled by the Warren court. That's a legitimate and impressive legacy — whether you agree with its aims or not.

The Chief Justice didn't strike me as the type to share much of his internal monologue with the rest of the world. He was not a touchy-feely guy despite his love of show tunes and tennis and a good joke. We weren't going to see him bare his soul on Oprah or confess to Larry King. We aren't going to see a posthumous book from him in which he dishes the dirt on his friends on the Court. And I doubt that when his private papers are released decades from now they will offer the sort of treasure trove that the papers of Justice William O'Douglas offered to his biographer. Indeed, the manner of his passing — with no word leaked that he was close to the end — became both his personality and his lifestyle. It was a dignified end to a dignified life.

But, from time to time, off the court, the Grand Duke offered glimmers of insight and perspective into his inner mind. For example, in his book, "The Supreme Court: How it was/How it is", the Chief Justice wrote this: "But far more important than the fact that the Court has on occasion made rather demonstrable errors of both omission and commission during this time is the fact that it and the country have survived these mistakes and the Court as an institution has steadily grown in authority and prestige."

He wrote this passage before the Court's authority and prestige plummeted on December 12, 2000 after Bush v. Gore was announced. But I suspect he would stand by these remarks today. Being a Justice means taking the long view of things and in the Grand Duke's mind the Court's long-term stature was safe. We'll see if his optimism was well-placed or if the odious attacks by Congress and the White House against the federal judiciary — attacks the Grand Duke himself challenged and countered in public remarks in January — take their intended toll on the third branch of government.

In that book about the Court, the Grand Duke went on to write: "In the light of the temptations that naturally beset any human being who becomes a judge of the Supreme Court, the truly remarkable fact is not that its members may have on infrequent occasions succumbed to these temptations, but that they have by and large had the good judgment and common sense to rise above them in the overwhelming majority of cases they have decided." The Court and its Justices are not perfect, Rehnquist wrote, but they try hard and usually do their best.

That's not a bad epitaph either for the Grand Duke, who rose from humble beginnings to preside over a legal counterrevolution that marks 20th Century jurisprudence. Whether you like him or hate him, whether you agree with his legal conservatism or not, it's not hard to argue that the Grand Duke did his best most of the time. History will judge him as a decent man who held resolutely to his conservative principles when they were unpopular and who never gloated when he found himself, after many years in the wilderness, at the head of a movement that reshaped the nation's laws.

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