REHNQUIST’S LEGACY

TIME Magazine, anticipating the retirement of Chief Justice Rehnquist, examines how he “Changed America.”

Affirmative action is more difficult to implement now. The barrier between church and state is more porous. Convicted criminals have a much harder time getting multiple appeals heard in federal courts. But Rehnquist’s most enduring legacy is in the less visible but crucial area of federalism — the balance of powers between Washington and the states. The Rehnquist court has sharply trimmed the power of Congress to tell the states what to do. His abiding belief that the Constitution was created to restrain the reach of the Federal Government has been his mantra as Chief Justice. Rehnquist did not always get his way: not on Miranda rights, which he opposed (though he wrote the 2000 opinion upholding them, acknowledging that the matter was now settled law), or on Roe v. Wade, in which he was one of two dissenters. But the days are long over when liberal groups could count on the court to carry forward their agenda.

Of course, despite the fact Supreme Court histories are divided into chapters based on who was sitting in the center chair, the Chief has only one vote. The only power he has that differentiates him from the eight associate justices is that he gets to vote last and he gets to assign the opinion author if he is with the majority. Former CJ Warren Burger was famous for changing his vote if he knew he was going to lose, so that he could assign the writing of the opinion to the most moderate member of the “other” side; Rehnquist hasn’t used this tactic that I’m aware of. So, really, Rehnquist’s legacy is that he presided over the Court in an era where Republicans dominated the White House.

FILED UNDER: Law and the Courts
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.