Chief Justice Dies, 80, Led Court on a Conservative Path

WASHINGTON (By David G. Savage, LA Times) September 4, 2005 — Chief Justice William H. Rehnquist, who steered the Supreme Court on a more conservative course during more than 33 years on the bench and who presided over the impeachment trial of one president and helped elect another, died Saturday at his home in Arlington, Va. He was 80.

Rehnquist had been in failing health since he was diagnosed in October with thyroid cancer. An announcement from the court late Saturday said the chief justice had experienced "a precipitous decline in his health in the last couple of days" and died in the evening, surrounded by his three children.

Rehnquist's death came on the eve of confirmation hearings for President Bush's first Supreme Court nominee, Judge John G. Roberts, whose first job in Washington was as a clerk for then-Justice Rehnquist.

The president will now have a second seat to fill on the high court, and the timing of Rehnquist's death may complicate the choice.

Earlier this year, many conservatives in Washington had cited Roberts as a likely choice for chief justice had Rehnquist retired, as expected at the end of this year's term in late June. Instead, Justice Sandra Day O'Connor surprised the White House by announcing her retirement.

About three weeks later, Bush then surprised many observers by nominating Roberts, rather than choosing a woman to fill the seat of the first woman to serve on the high court.

Nothing would prevent the president from changing course slightly and nominating Roberts to be chief justice. Or, he could choose to elevate one of the current members of the court to be chief justice, including Justice Antonin Scalia or Justice Clarence Thomas.

Or, he could nominate a new justice from among the many candidates who were carefully scrutinized earlier this year.

Rehnquist, an associate justice on the court from 1972 to 1986 and chief justice from 1986 on, refused to give in to his illness. He swore in President Bush for a second term in January and returned to the bench shortly afterward.

Though he appeared weak and spoke with difficulty, the chief justice participated in the court's oral arguments and could be counted upon to ask sharp questions. The other justices said he continued to handle his duties inside court, including leading the discussion at the court's private conference.

In his final opinion for the court, Rehnquist spoke for the 5-4 majority that upheld the constitutionality of the Ten Commandments monument that sat outside the Texas state Capitol in Austin. The chief justice said the Constitution did not prevent the government from acknowledging the nation's religious heritage.

On the court's final day for announcing decisions, Rehnquist gasped for breath and struggled to read an opinion. But he did not announce his retirement, as was widely expected.

His friends speculated that the regular work duties helped maintain his spirits in the battle against cancer.

Within days of O'Connor's announcement, Rehnquist said that he would not be following her by departing from the bench.

"I want to put to rest the speculation and unfounded rumors of my imminent retirement," he said in a statement in July. "I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits."

The statement was issued the day Rehnquist left the hospital, where he had gone for treatment of a fever. A second bout with fever put him in the hospital for tests early in August.

Rehnquist served longer as chief justice than anyone in a century, and his 33-year career as a justice was among the half-dozen longest in the court's history.

Under his leadership, the court restored the death penalty, allowed more public funding for religious schools and pulled back from the frontiers of civil rights and individual liberties.

But the Rehnquist court may be best remembered for its decision in Bush vs. Gore, the ruling that halted Florida's recount of the untabulated ballots in the disputed election of 2000, thereby assuring victory for the Republican candidate, George W. Bush.

The chief justice led the 5-4 majority that first stopped the recount and then ended it for good.

Rehnquist had a vast impact across a wide array of constitutional law, but not because he invented new doctrines or championed individual rights. To the contrary, he made his mark by rejecting the use of judicial power.

Rehnquist was the rare public official who strove to make his office less powerful. He believed the Constitution left the hard decisions of governing to local, state and federal officials who were accountable to the voters.

Throughout his long career on the bench, he argued for judicial restraint. Judges do not have "a roving commission to second-guess Congress, state legislatures and state and federal administrative officers concerning what is best for the country."

Rehnquist joined the Supreme Court in January 1972 near the end of its era of liberal activism. Then only 47, he was the fourth and final appointee of President Nixon and the one who most lived up to Nixon's pledge to name law-and-order conservatives to the bench.

Rehnquist had been there only a few weeks when the justices, over his dissent, voted to strike down the death penalty as unconstitutional. Just a few months later, the court, again over his dissent, voted to strike down all the laws banning abortion in Roe vs. Wade.

This was also the era when federal judges, following the Supreme Court's mandate, were ordering busing to desegregate the public schools.

Rehnquist was a frequent dissenter. His clerks dubbed him the "Lone Ranger," a proud fighter for losing causes.

Early Distinction

From the start, Rehnquist distinguished himself, not just for having strong conservative views, but as possessing exceptional legal ability and an affable manner that endeared him to his colleagues.

He was tall and gawky and wore long sideburns. And even by the standards of the mid-1970s, he sported odd attire, including loud ties with sports jackets that had elbow patches. In the halls, he looked more like a small-college history professor than a justice of the Supreme Court.

His dissents were eye-catching, too. He called Thomas Jefferson's notion of a "wall of separation" between church and state a "misguided metaphor based on bad history." Rehnquist said the 1st Amendment only forbids the government to proclaim a national church.

When the court interpreted the Civil Rights Act to allow employers to use "affirmative" discrimination in favor of minorities, Rehnquist called the majority's opinion "a tour de force reminiscent not of jurists such as [Oliver Wendell] Holmes or [Charles Evans] Hughes, but of escape artists such as Houdini."

In 1986, the dismayed dissenter became the chief justice when Warren E. Burger, a Nixon appointee who had led a fractured court for 17 years, announced he was retiring, and President Reagan promoted Rehnquist to take his place. Senate Democrats contended that Rehnquist was too conservative and "out of the mainstream," but he won confirmation on a 65-33 vote.

As chief justice, Rehnquist pressed to give states more leeway to enforce their laws. The court regularly rejected challenges to the death penalty and made it easier for states to carry out executions.

However, Rehnquist failed to win a majority to overturn the abortion right affirmed in Roe vs. Wade. In 1989, he wrote an opinion in a Missouri case saying states could enact laws to protect "potential human life." But at the last minute, O'Connor refused to sign his opinion, leaving the chief justice with only a four-member plurality of the court.

Three years later, Rehnquist looked to have a solid majority to overturn the abortion right. In the interim, two liberals, Justices William J. Brennan and Thurgood Marshall, had retired, and they were replaced by appointees of President George H.W. Bush: David H. Souter and Clarence Thomas.

But when a Pennsylvania abortion case came before the court, the justices handed down a surprise 5-4 ruling that again affirmed the abortion right. Justice Anthony M. Kennedy, who agreed with Rehnquist in 1989, joined Souter and O'Connor in upholding Roe vs. Wade.

In 1997, however, Rehnquist spoke for the court in rejecting the idea of a constitutional "right to die." If the laws on assisted suicide are to be changed, they must be changed in response to public pressure on elected officials, he said.

He felt the issue needed to be dealt with at the state level through the legislative process.

"Throughout the nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physicianassisted suicide. Our holding permits this debate to continue, as it should in a democratic society," Rehnquist wrote. Since then, only Oregon has permitted doctors to aid terminally ill people in ending their lives.

Beyond judicial restraint, the other great theme of Rehnquist's career was restoring the Constitution's balance of power. In a series of rulings, Rehnquist won a narrow majority to limit the reach of Congress and to shield the states from federal laws and lawsuits.

In 1995, Rehnquist wrote an opinion that struck down the federal law against gun possession in a school zone on the grounds that Congress had exceeded its authority to make laws. The Constitution says Congress has the power to "regulate commerce," and mere possession of a gun is not commerce, the chief justice said.

"We start with first principles. The Constitution created a federal government [whose] powers are few and defined. Those which are to remain in the state governments are numerous and indefinite," Rehnquist said, citing the words of James Madison.

This distinction must be preserved, he added, if American law is going to separate what is "truly national from what is truly local."

This ruling, in U.S. vs. Lopez, marked the first time in nearly 60 years that the high court had invalidated a federal law on the grounds that Congress had exceeded its law-making authority.

Rehnquist had long maintained that the Constitution gives the states a special place in the American system of government, and he wrote a series of opinions that held the states are "sovereign" entities and are shielded from some federal regulation. As one example, the Rehnquist court ruled that state agencies and state universities cannot be sued by their employees who say they are victims of age bias or discrimination based on a disability. In his view, states could not be held liable for violating these federal laws.

Rehnquist failed to win a majority in favor of restoring prayers in the public schools. The most decided setback came in 1992, when two Reagan appointees — Kennedy and O'Connor — split with Rehnquist and joined a 5-4 majority to rule it was unconstitutional to have a school-sponsored prayer or invocation at a public school's graduation ceremony (Lee vs. Weisman). With Rehnquist in dissent, the court also struck down a city's Christmastime display of a scene depicting Jesus' birth on the courthouse steps. In 2000, he accused his colleagues of showing "hostility" to religion when they prohibited high school students from leading prayers over the school's public address system at football games.

But the chief justice fared better in winning some public aid for religious schools. In 2001, Rehnquist spoke for the 5-4 majority that upheld Ohio's use of public tuition aid to send children to religious schools in Cleveland.

Rehnquist's support for states' rights came with some exceptions, none more memorable than the Bush vs. Gore ruling that ended the disputed 2000 presidential election.

At issue was whether the Florida Supreme Court's interpretation of state law would prevail. On Dec. 8, its judges ordered a statewide hand recount of the remaining untabulated ballots. Then-Texas Gov. George W. Bush had a lead of about 500 votes in the Florida tally, and he would win the presidency if that margin were preserved. But a hand tally of paper ballots that were rejected by the tabulating machines might have tipped the lead to the Democratic candidate, Vice President Al Gore.

With the chief justice leading the way, the high court on a 5-4 vote ordered a halt to the recount at midday on Dec. 9. And on Dec. 12, the Supreme Court, in an unsigned opinion, ended the recount by declaring it unconstitutional. The conservative majority could not agree on a clear reason for the ruling. Rehnquist wrote that the state court's interpretation of state election law was "absurd" and could be overturned by the high court on the grounds that it fundamentally revised the law after the election. Scalia and Thomas agreed with this view.

Apparently, Justices Kennedy and O'Connor did not. Without signing their names to the ruling, they offered an opinion saying the count violated the Constitution's guarantee of "equal protection of the laws" because it allowed for disputed ballots to be treated differently in the various counties of Florida.

Four justices issued sharp dissents, saying the court should not have intervened and the recount should have continued.

But Gore conceded the next day, and Rehnquist swore in Bush as president on Jan. 20, 2001.

Historians will undoubtedly compare the Rehnquist court to the Warren court of the 1960s, because the court in both eras reflected the views and the priorities of the chief justice.

Chief Justice Earl Warren put together a unanimous court to rule in the Brown vs. Board of Education case in 1954 that racial segregation was "inherently unequal" and could not stand. The Warren court also led the effort to strengthen the individual rights set out in the Bill of Rights. In particular, criminal defendants won stronger protections of their rights.

In between Warren and Rehnquist came the court of Nixon's Chief Justice Burger. He replaced the liberal Warren in 1969 and served until 1986, when his retirement cleared the way for his friend and colleague Bill Rehnquist to replace him.

But the conservative Burger led a fractured court best-known for liberal rulings. The Swann ruling in 1970 that led to cross-town busing for school desegregation, the Furman decision in 1972 that struck down the death penalty (temporarily) and the Roe vs. Wade ruling all emerged from the Burger court.

The Rehnquist court reflected the conservative principles of its chief justice, just as the Warren court mirrored the liberal idealism of former California Gov. Earl Warren.

The Rehnquist court did not hand down landmark rulings that ranked near those of the Brown vs. Board of Education decision in 1954, or even the 1970s-era decisions such as Roe vs. Wade or the Bakke decision on affirmative action.

But Rehnquist had a clear agenda for the court, and he pressed ahead, making incremental progress. He succeeded in ending most school-busing orders.

He strengthened property rights and wrote opinions that gave landowners and developers more legal leverage against regulators.

The Rehnquist court also made it harder for civil rights plaintiffs, prisoners and death row inmates to win claims in federal courts.

While Warren wanted federal judges and federal authorities to move aggressively to enforce civil rights, Rehnquist sought to protect state officials and local authorities from federal meddling.

In interviews, Rehnquist insisted the job of chief justice had little real power. Each justice is independent of the others, and all of them have but one vote, he said.

"If there's a parking problem in the garage, my colleagues turn to me to take care of it," he said jokingly.

But a chief justice with a clear vision of the Constitution can exert a strong influence on the court and shape its decisions. And Rehnquist was undoubtedly influential in steering the court's decisions.

Rehnquist played an important but somewhat hidden role in the drama that led to the impeachment of President Clinton.

In 1988, Rehnquist, to the surprise of many conservatives, wrote an opinion for the court upholding the constitutionality of the independent counsel act. It had been challenged by Theodore B. Olson, a Reagan administration lawyer who was under investigation by a special prosecutor.

Though Olson argued that all prosecutorial power must reside with the president, Rehnquist said the Constitution allows Congress to create a hybrid in the form of an independently appointed prosecutor. The independent counsel act allowed the chief justice to name the three judges who chose the prosecutors.

Shortly after Clinton took office, Congress voted to reauthorize the independent counsel law, which had lapsed. In the meantime, Atty. Gen. Janet Reno had named a prominent New York Republican, Robert Fiske, as special prosecutor to look into the Whitewater matter from Arkansas. Critics alleged that as governor of Arkansas, Clinton and his wife, Hillary, may have participated in looting the failed Madison Guarantee Savings & Loan.

There was little evidence to back up these charges, and Fiske gave hints that he would end the investigation without bringing charges.

But Rehnquist had appointed as head of the three-judge panel David Sentelle, a North Carolinian who was known as a conservative Republican with close ties to Sen. Jesse Helms. And after a lunch in the Senate cafeteria with Sen. Helms and another North Carolina Republican, Sen. Lauch Faircloth, Sentelle's panel announced that it was dismissing Fiske and replacing him with Kenneth W. Starr, a lawyer who had served under presidents Reagan and George H.W. Bush.

Starr relaunched the Whitewater investigation and eventually merged it with an inquiry into whether Clinton had obstructed justice in the Paula Jones case.

In May 1997, the Rehnquist court opened the door to questioning Clinton under oath when it rejected his claim that lawsuits against a president should be deferred until he leaves office.

The Jones lawsuit and the Starr investigation came together in January 1998, when the independent counsel announced he was probing into whether Clinton committed perjury when he gave evasive answers about his relationship with White House intern Monica Lewinsky during his deposition in the Jones case.

Eight months later, Starr formally urged the Republican-controlled House of Representatives to impeach Clinton. It did so, on a nearly straight party-line vote.

Rehnquist presided over the trial. He was an expert on the impeachment power, but his duties were minimal. During the trial, Rehnquist maintained order and decorum as the issue of Clinton's guilt was debated, but without seeking to influence the outcome.

In describing his role during a TV interview, Rehnquist borrowed a line from Gilbert and Sullivan's "Iolanthe," in which the House of Peers "did nothing in particular, and did it very well…. I feel that's what I did at the impeachment trial. I did nothing in particular, and I did it very well."

The Senate trial also exposed to the public eye Rehnquist's fondness for show. He had three gold stripes sewn into the sleeves of his black robe. When the members of the Supreme Court emerged from behind the red velour curtain each morning, even the casual observer could pick out which of the nine black robed figures was the chief justice.

William Hubbs Rehnquist was born Oct. 1, 1924, in Shorewood, Wis., a suburb of Milwaukee. His father was a salesman, and his mother a teacher of foreign languages.

The Japanese attack on Pearl Harbor in 1941 came during his senior year in high school, and he joined the U.S. Army Air Forces not long after his graduation. He served as a weatherman in North Africa during the war, which, among other things, convinced him that he preferred a hot, dry climate over Wisconsin's.

After the war, he headed for Stanford University, where he studied history and government. After obtaining a master's degree from Harvard University, he returned to Stanford for his law degree. He was the top student in a 1952 class that included Sandra Day, whom he would recommend as a Supreme Court nominee nearly three decades later.

Rehnquist made his way to Washington, D.C., with the blessing of a Stanford professor. The coveted clerkships at the Supreme Court were then the province of the Ivy League law schools on the East Coast, but Justice Robert H. Jackson, on a speaking trip in the West, stopped by the Stanford Law School. Jackson was an eminent figure, having been U.S. attorney general under President Franklin D. Roosevelt and the U.S. prosecutor at the Nazi war-crimes trial.

A professor mentioned Rehnquist as a good candidate for a clerkship, and to his surprise, Jackson wrote to Rehnquist to offer him a job starting at midterm during the winter of 1952. After driving across the upper Midwest in an unheated Studebaker, the 27-year-old arrived for his first day at work — and his first glimpse of the Supreme Court's marble temple — on Feb. 1, 1952.

Fellow clerks of that era recalled Rehnquist as being engaging and staunchly conservative. He also wrote a series of blunt and opinionated memos, which were revealed years later. In one, he offers the reasons the "separate but equal" doctrine set in Plessy vs. Ferguson, the 1896 ruling that upheld segregation, should be preserved. Rehnquist later said this memo was intended to reflect Justice Jackson's views of the matter, not his, although many legal experts have found that explanation questionable.

After his clerkship, Rehnquist moved to Phoenix to establish himself and his law practice. He had married Natalie Cornell of San Diego, who was known as Nan. They had two daughters and a son.

Rehnquist's entry into national politics came when Arizona Sen. Barry Goldwater won the Republican presidential nomination in 1964. Rehnquist was a legal advisor to the campaign, and he urged Goldwater to oppose the landmark civil rights bill before Congress, saying it marked an unwise expansion of federal authority over local matters.

But two-thirds of the senators voted to break the Southern filibuster and pass the Civil Rights Act of 1964. It gave all Americans the right to be served in restaurants and hotels and other businesses, without regard to their race, religion or national origin.

Goldwater was crushed in the November presidential election, but he won the support of five states in the South. This marked the beginning of a shift from the "Solid South" being a Democratic stronghold to a base of support for today's Republican Party.

Nixon courted the Southern vote in his successful campaign for the White House in 1968. He also campaigned on the theme of "law and order" and attacked the Supreme Court as being soft on criminals.

Once in office, Nixon tapped the network of Goldwater aides. He named Arizonan Richard Kleindeist as deputy attorney general at the Justice Department, and he in turn recruited Phoenix lawyer Bill Rehnquist to head the office of legal counsel, something of a legal think tank within the department.

Although Nixon barely knew Rehnquist, an aide had suggested the Stanford law grad as an ideal candidate for one of two Supreme Court vacancies in the fall of 1971.

Two places on the court opened up when Justices Hugo Black and John Marshall Harlan, one a liberal from the Roosevelt era and the other a conservative Eisenhower appointee, both became ill and retired in September 1971.

Nixon wanted to put a Southerner on the court, and he had decided on Lewis F. Powell, a highly respected moderate Virginia Democrat, for one seat. The president struggled to fill the second vacancy. At one point, he was leaning toward naming Tennessee Sen. Howard Baker, a young and moderate Republican who would later help lead the Senate committee investigating Watergate, the scandal that eventually brought Nixon's resignation. But Baker hesitated, and Nixon changed his mind.

Richard Moore, a Nixon aide, had championed young Rehnquist, pointing out that he had graduated first in his Stanford Law class. And he was solidly conservative; no one questioned that. At first, Nixon was put off by the suggestion, because Rehnquist had not been a judge or held any prominent position in government. But he became convinced that a smart and scholarly conservative was his best choice.

The night before the announcement, Nixon scrawled on his yellow legal pad: "Rhenquist [sic] brilliant young Constitutional law in govt, 1st in his class."

Senate liberals opposed Rehnquist's nomination, and a leading civil rights advocate called him a "self-propelled segregationist." But he won a solid majority for confirmation in December 1971 as the 100th justice of the Supreme Court.

Historian and Author

Rehnquist was an amateur historian and wrote four books while serving as chief justice. The first, "Supreme Court," describes the workings of the institution, although he shies away from cases and decisions after 1970.

His second, "Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson," was on impeachment. He describes those early impeachments as politically driven. Justice Chase, an outspoken Federalist, was despised by Thomas Jefferson and the anti-Federalists. As president, Jefferson played a behind-the-scenes role in triggering the House's move to impeach Chase. But the Senate refused to convict him and oust him from the court.

Similarly, Andrew Johnson, the Southern Democrat who ascended to the presidency after Abraham Lincoln's assassination, was out of step with the Northern Republicans who wanted to punish the rebellious South after the Civil War. The House impeached Johnson, but the Senate failed to muster the two-thirds majority to convict him.

Rehnquist argued that the failure of these highly partisan impeachments served to strengthen the independence of the justices and the president. Had these impeachments succeeded, every future justice or president would have to fear impeachment if his partisan enemies had a majority in the House of Representatives.

But Rehnquist was soon called upon to serve as the Senate's trial judge in the presidential impeachment that was voted strictly on partisan lines. The Republicans, who had a narrow majority in the House, voted for the impeachment of Clinton, a Democrat. The House Democrats lined up in opposition.

Rehnquist's third book, "All the Laws but One," focuses on civil liberties during wartime. His survey of the Civil War, World War I and World War II offers a somewhat hopeful message. While civil liberties are in jeopardy during wartime, Americans' respect for individual rights has grown steadily, he observes, and the U.S. public is not willing to accept the infringements on free speech that were the norm during World War I.

The final book, "Centennial Crisis," told the history of the disputed presidential election of 1876. In that instance, like in 2000, the Supreme Court was drawn into the controversy when the election-day balloting failed to resolve whether Republican Rutherford Hayes or Democrat Samuel Tilden had won the presidency. Justice Joseph Bradley, a Republican appointee, was asked to serve on the 15-member commission created to resolve the dispute, and he cast the decisive votes for Hayes. Rehnquist generally defended Bradley from the accusation that his decision was politically motivated.

Rehnquist's wife, Nan, succumbed to cancer in 1991.

He is survived by his children, Janet Rehnquist of Arlington, Va.; James C. Rehnquist of Sharon, Mass.; Nancy Spears of Middlebury, Vt.; his sister, Jean Laurin of Grand Rapids, Mich.; and nine grandchildren.

Funeral services are pending.