I know I should be writing some eloquent eulogy to Chief Justice William Rehnquist, one of our longest serving Supreme Court justices, but I just can’t bring myself to do it. This is a man who embodied judicial activism for over 30 years. That is not a concept I have a great deal of trouble with in general, though I find it viciously hypocritical that conservatives would throw that terminology around to describe only judges who favor granting homosexuals civil rights and holding corporations accountable for the environmental footprint they leave on this country, and not the role of religion in our government and the rights of minority groups.
It has to be said, Chief Justice Rehnquist was a decent man. He was the first to come forward in the aftermath of the disgusting Terry Schiavo debacle and criticize neo-conservatives like Tom “the Hammer” Delay, when they railed against an out of control Judiciary that was taking the law into its own hands. He pointed out that this is in fact the job of the Judiciary, to interpret and clarify ambiguity that is inherent in all laws. In fact, the Judiciary has done a relative good job dealing with the political blather that is churned out by our rather sophomoric Congress. One can hardly blame the Judiciary for the atrocious laws that our elected officials churn out on a regular basis. It seems to me that 90% of the time the laws that the Legislative Branch passes are totally nonsensical so that it is near impossible to implement the laws, but the politicians can say that they took action and blame the people who implement the public policies.
In spite of his apparent reverence for the Judiciary, Chief Justice Rehnquist has taken some positions in cases that should be really troubling for a lot of people in this country. I guess the best approach is to start at the top and work our way down. William Rehnquist was appointed to the Supreme Court in 1972 by Tricky Dick Nixon. He was an extremely conservative appointment for the relatively moderate Nixon. Almost immediately he grabbed the mantel of conservative anchor on the Burger court. It is hardly surprising that he came so vehemently to the defense of the Judiciary and its very important role, since he was often regarded as an advocate of judicial supremacy. If you have any question about this, you need only look back to 2000 when he and his Supreme Court stepped in to decide the Presidential Election. He said that in times of uncertainty that a strong and truly supreme court should step in a take control. This is troubling to many, as they are lifetime appointments and accountable to no one once they are installed.
Rehnquist has voted against the expansion of school desegregation plans. He dissented in Roe v. Wade (1973). In his career Rehnquist has consistently voted in favor of school prayer and capital punishment. What endeared Rehnquist to the religious right was his leadership in establishing more governmental leniency towards state aid for religion (a clear and absolutely no-no to any Constitutional purist such as myself). This was evidenced in his writing for the majority in Zelman v. Simmons-Harris, approving a school voucher program that aided parochial schools.
Then there are his positions on all things regarding the 14th Amendment. One of Rehnquist’s biggest legacies will be his push for State’s rights. He envisioned the 14th Amendment being interpreted as narrowly as possible, thus creating a system where deference was given to State’s (some might find it hypocritical that he then stepped in and overruled the Florida Supreme Court in the Bush v. Gore  decision).
In the end, it may be his State’s rights push that will also hurt his legacy. Think about it, many of the problems that we face in our society are either the result of a lack of uniformity or because tasks are delegated to the States that really ought to be handled by the federal government. I can name a host of examples but I will give you just a few. Firstly, why do we delegate the control over core educational curriculum to ass-backward States like
The other great, and particularly timely, example is the handling of disaster relief. We need only look at the
So we move on, Rehnquist is gone though his legacy will be felt for years to come. President Bush has moved to get John Roberts, a protégé of William Rehnquist’s, installed as the 19th Chief Justice of the