William Rehnquist’s Death Changes Little on the Supreme Court

William Rehnquist lost his battle with thyroid cancer over the week-end, and the focus in Washington moves slightly away from Hurricane Katrina to the punditry of judicial appointments. With President Bush’s announcement that he would like John Roberts to succeed Chief Justice Rehnquist as top judge in the nation, Mr. Bush rendered much of the speculation meaningless. An arch-conservative will be replaced by a man who appears to be an arch-conservative, meaning it’s much ado about nothing.

To say that William Rehnquist was a conservative is to say St. Peter was a Christian. In many ways, the late chief justice was there at the creation. As a law clerk in 1951-52 for Justice Robert H. Jackson, Mr. Rehnquist authored a paper fighting against desegregation for Brown v. Board of Education; he would later claim those views were Justice Jackson’s and not his own. He was Barry Goldwater’s legal advisor during the 1964 presidential campaign. He was Assistant Attorney General of the Office of Legal Counsel in the early 1970s, effectively making him chief lawyer to the criminal Attorney General John Mitchell. President Nixon (who referred to him as “Renchburg” in a few of the infamous Nixon Tapes) appointed him to the Supreme Court in 1971.

In his many years on the Supreme Court, he was never a swing vote, ever a conservative. In Roe v. Wade, he was in a minority of 2 suggesting a woman hasn’t a right to an abortion. He led the way for the patenting of software in Diamond v. Diehr which has led to business making piles of money while making software inelegant and often unable to interface with other software. He helped make capital punishment more common than it had been. He favored prayer in schools. And with the screamingly bad decision in Bush v. Gore as an exception, he favored state’s rights.

John Roberts doesn’t move very far one way or the other from Justice Rehnquist’s views. Since his nomination to fill the vacancy the resignation of Sandra Day O’Connor has created (but which has yet to go into effect), the Democrats have found nothing with which to hang him, except for being on the right. Thus, the president feels safe in nominating this man who would be the youngest Chief Justice ever. And that would be a lasting impression, so important for Mr. Bush’s legacy (upon which he has spent too much time and worry).

But the Roberts nomination here doesn’t change the mix on the court. And so, the blather and bluster seen in Washington about it is gossip signifying little. It will take a bit of time to get used to the idea of the Roberts Court, rather than the Rehnquist Court, but that too was an innovation of the Burger and Warren Courts. No, the real change will come when Justice Stevens, now 85, makes the same journey Justice Rehnquist has made.


© Copyright 2005 by The Kensington Review, J. Myhre, Editor. No part of this publication may be reproduced without written consent.
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