Sunday, September 04, 2005

Chief Justice Rehnquist's Legacy


William Rehnquist died last night. In the days to come there will be considerable discussion of his replacement. Today, I want to consider his legacy.

In 2002 I wrote an essay about greatness in Supreme Court Justices. There I argued that what makes Justices great in the eyes of the future is quite different from the things we look for (and should look for) when we are deciding whether to appoint them. That is because in choosing Justices we are properly looking for judiciousness, craft, and fidelity to law, while greatness is an appellation bestowed after the fact and it depends on contingencies such as whose politics wins out and how useful a Justice's work or image is seen to be to later generations. The thesis is highly compressed, and if you want to understand the entire argument, you should read the entire essay. Nevertheless, near the end, I applied the argument to Chief Justice Rehnquist. This is what I said three years ago:

* * * * *

I have been arguing that Marshall’s greatness—and indeed the greatness of all Supreme Court Justices—is a function of political usefulness to later generations, not whether they conformed to currently fashionable theories of good legal craft and judicial prudence. Nobody, I argue, gets put in the Hall of Judicial Fame because “he was always very deferential to majorities,” or “she always wrote the narrowest opinion possible,” or even, “he always looked to the intentions of the founding generation.” Rather, if an originalist or textualist is regarded as a great Justice it will be because of the political valence of originalism or textualism in his or her own time. Hugo Black is a case in point. It is Black’s support for civil liberties during the cold war, and not his theories about the centrality of the constitutional text, that make him a great Justice. It is Black’s opinion in Korematsu v. United States, and not his lack of judicial craft, that has done the most to diminish his reputation.

These conclusions should not be surprising. The Supreme Court is a political institution that must do its work through the forms and practices of legal decision making. In the long run, those forms and practices, which necessarily and appropriately constrain Justices in their own day, fall away from public concern. What is left standing is the quality of the political principles these Justices defended and the quality of the politics they created and preserved.

What does this mean for the current Supreme Court? Simply this: Judging by the criteria I have outlined in this essay, the current Chief Justice, William H. Rehnquist, has most of the indicia for future greatness. He has thrust himself into most of the important constitutional controversies of his generation. He has written opinions that produced considerable subsequent discussion and litigation. And he has longevity: Rehnquist languished as a dissenter on the Burger Court for many years, only to see many of his dissenting positions eventually taken up by a majority of the Court.

Whether William Rehnquist will eventually be regarded as a great Justice (and Chief Justice) will, in the long run, rest on whether he has been on the right side of the most important questions he fought over as judged by future generations. Rehnquist opposed the creation of sex-equality doctrine in the 1970s and the protection of gay rights in the 1980s and 1990s; he opposed affirmative action and the expansion of civil rights litigation. He sought to contract the rights of the accused and the rights of habeas petitioners. He sought to increase state sovereignty at the expense of federal regulatory power. And, of course, he joined in that great exercise of judicial restraint, Bush v. Gore.

If, in the long run, many or most of these political positions become admired, Rehnquist will be regarded as a great Justice, perhaps even one of the greatest. On the other hand, if the positions that he staked out and defended eventually are regarded as reactionary or unjust from the standpoint of the future, Rehnquist will be regarded like Justice Peckham, who wrote Lochner v. New York, or Justice Brown, who wrote Plessy v. Ferguson, or perhaps like Chief Justice Taney, whose importance cannot be denied but who had the misfortune to support slavery and was the author of Dred Scott v. Sanford.

Many of the same points apply to Rehnquist’s conservative ally on the Court, Justice Antonin Scalia. Scalia’s lively style and his very opinionated opinions suggest that he, too, is a potential candidate for greatness. Like Rehnquist, he has a coterie of devoted conservative admirers who can praise his achievements and can downplay his failings. If the politics of the future agree with a sizeable segment of Scalia’s views, his judicial sins will be washed away and he will take his place in the pantheon of Supreme Court greatness. Only time will tell whose politics eventually triumph.

If, as I have argued, greatness is a matter of the politics that a Justice espouses, rather than fidelity to original intention, strict construction, judicial restraint, or careful parsing of previous precedents, does this suggest that Justices should cast aside all concerns about judicial craft and simply try to be great? This is, I am afraid, a fool’s errand. No one can be sure exactly what the politics of the future will look like, so it is hardly a wise idea to try to curry favor with it. That is an important reason why most politicians and lawyers look to factors that are orthogonal to greatness in judging the Justices of their own era. Not every Justice will be considered great by future generations, and indeed, we can be quite sure that most will not. Hence, it is better for a Justice to try to do his or her job scrupulously and professionally. Craft and judiciousness matters greatly in the present, because the future belongs to the future.


Prof. Balkin,

A thoughtful post. But I would suggest that your list of how the future might consider Justice Rehnquist's legacy is not exactly exhaustive.

Take, for instance, your treatment of Rehnquist and "gay rights." It may well be that lawyers and law students of the future, like many lawyers and law students of today (OK, like myself)--are fully supportive of the principle that sexual orientation should be no basis for discrimination by the state.

It may be that such people, like me, will nevertheless admire that Justice Rehnquist did not use the Constituion as an ever-expanding source of the creation of new rights and the recognition (and codification) of new sensibilities.

That is, future generations might consider the methodology more than merely the results of the Jurisprudence of the "conservatives" on today's court. In fairness, Justice Rehnquist's opinions will be less helpful in this regard than Justice Scalia's, as the latter has tended to be more consistent in his approach to issues over time than the Chief. But the responsibilities of a chief justice to try to forge and hold consensus might help to explain why in some areas and in some opinions the Chief achieved less doctrinal clarity and consistency than the other great Justice of his time, Justice Scalia.


Check out Ed Lazarus' Op-Ed in today's WaPo for his take on the late CJ.

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