THE REHNQUIST LEGACY
by Craig Bradley (ed). Cambridge and New York: Cambridge University Press. 2006. 414pp. Cloth $80.00/£45.00. ISBN: 0521859190. Paper $35.99/£19.99. ISBN: 0521683661.
Reviewed by Steven Puro, Department of Political Science, St. Louis University. Email: puro [at] slu.edu.
Craig Bradley has edited a “legal biography” of Justice William Rehnquist. He served as a law clerk when Rehnquist was an Associate Justice of the US Supreme Court, worked as an attorney at the U.S. Department of Justice, and he is currently a Professor of Law at Indiana University Law School. The collection went to press in September, 2005, near the time of Rehnquist’s death. THE REHNQUIST LEGACY assesses the Justice’s constitutional legacy through uncovering his dominant doctrinal dimensions in several different areas of constitutional law. The essays emphasize Justice Rehnquist’s main Supreme Court majority and dissenting opinions in four major sections: The First Amendment, Criminal Procedure, The Structure of Government, and The Scope of Fourteenth Amendment Rights. The eighteen essays show his jurisprudence to be complex and multifaceted, and the findings support established scholarly ideas of Rehnquist’s legal approaches. Among those established ideas is his narrow interpretation of the Bill of Rights, his inclination to limit the national government’s power to impose constitutional demands via the Fourteenth Amendment, and to grant greater leeway for states’ authority in federalism relations.
Justice Rehnquist began his service on the U.S. Supreme Court in 1972 and assumed the position as Chief in 1986, with the nineteen years marking one of the longest periods for a Chief Justice in the Court’s history. In this edited volume, central questions include: are there shifts in Rehnquist’s legal approach and goals concerning major constitutional issues?; is there a clear Rehnquist legacy?; and what implications occur if his doctrinal paths are taken to their logical conclusions?
Bradley relies upon leading legal scholars, overwhelmingly professors of law who provide well organized and clearly written approaches. The contributors present a variety of ideological perspectives concerning legal and constitutional policies. The essays are extensively documented, drawing especially from Rehnquist’s opinions and law review articles. This approach is consistent with the design of the edited volume, and readers should not expect analysis of attitudinal, rational choice, or strategic models of an individual Justice or the Court. Many essays will be useful for teaching law and constitutional issues. In judicial decision making instruction and scholarship, legal doctrinal analysis concerns cycles of continuity and change. Scholars could use a combination of these essays to examine the evolution of Rehnquist’s legal doctrine in areas such as originalism, [*521] judicial restraint, or principled constitutional interpretation.
Most essays are informative with well-developed perspectives not usually found in standard legal or constitutional law texts. The authors emphasize Rehnquist’s strong consistency in his constitutional views. For example, throughout his tenure, he maintained a new approach to federalism issues by giving states’ broader latitude in disputes with the national government. Fresh perspectives on these matters are presented in Mark Tushnet’s chapter on Rehnquist’s development of federalism doctrine. Tushnet characterizes Rehnquist’s ideas as following three main paths: Congress cannot regulate states’ traditional government activities; Congress cannot command state legislatures or executives to implement national policies; and national power may not enter certain areas which are left for state regulation. In cases concerning state authority other than federalism matters, Rehnquist granted a broad role to states in policymaking and a diminishing role to courts in interfering with the judgment of state or national legislative decisions. In commerce clause cases, his regular position was to moderate Congress’ legislative authority and to expand state sovereignty. Several essays demonstrate how Rehnquist’s views developed from minority to majority opinions, as with the federalism issues noted above. There are also instances where he was unable to achieve a majority view, such as his reading of the Sixth Amendment and MIRANDA warnings.
In general, essays find that Rehnquist did not fundamentally alter his established constitutional principles – e.g., opposition to ROE v. WADE (1973)) in the area of reproductive liberty. Another key part of Rehnquist’s legal thinking was his view of judicial supremacy in constitutional interpretation based upon a doctrine of limited government when addressing expansion of congressional power. Dawn Johnsen argues that Rehnquist’s opposition to ROE “was less about abortion per se than about his views on federalism, individual rights, and the appropriate institutional role of the courts, his legacy depends on a more general assessment of how the Court protects individual liberty from government interference under the doctrine of substantive due process” (p.323). He gave limited judicial protection to individual rights not enumerated with great specificity in the Constitution. Further, Rehnquist was a strong advocate of limiting Congressional power under the fifth section of the Fourteenth Amendment to enforce constitutional rights.
Rehnquist’s legal legacy is characterized through his preferred policy outcomes based upon the dominant direction of his opinions. For example, Richard Garnett suggests how Rehnquist drew free speech lines in RUST v. SULLIVAN (1991) “between the government as regulator, as subsidizer, and as speaker” (p.33). The essays rarely address interesting questions concerning whether Rehnquist was constrained by precedent, stare decisis, when addressing legal issues where he held strong opinions. The book could have given further [*522] attention to how other Court members affected evolution of Rehnquist’s legal doctrine. The edited volume leaves us with anaysis of Rehnquist’s doctrines in specific areas of the law but rarely shows connections across legal areas. A summary categorization of his legal thinking is needed and could have been achieved in a concluding chapter.
Relationships between conservative politics, conservative political thought and judicial restraint have been an important part of legal discussion during the Rehnquist Court years (1986-2005). Rehnquist’s general view of relations between the judiciary and other national government departments is that appointed federal judges should not impose rules of conduct upon popularly elected branches. In this argument, there seems to be no consistent link between his philosophy of judicial deference and a justice’s maintenance of consistent judicial attitudes. Earl Maltz, in a chapter considering commercial speech, argues that, if a judge regularly defers to the decisions of other governmental branches, it is difficult to see how that judge can maintain his/her own judicial approach. To be consistent, Rehnquist and other conservative Court members often engaged in a form of judicial activism by taking the initiative to invalidate decisions by Congress and state governments.
This book advances scholarly understanding of distinct dimensions of Justice Rehnquist’s decisions, with each essay focusing mainly on a single doctrinal area. For example, in exploring his legal approach, Daniel Conkle shows that the Justice Rehnquist crafted “Establishment Clause doctrine that makes indirect funding programs almost invulnerable to constitutional challenge” (p.77). Bradley, in a separate essay concerning the Fourth Amendment, demonstrates that the Chief Justice consistently called for limiting the rights of individuals vis a’ vis the state, especially in areas allowing criminal defendants to use the Fourth Amendment to challenge use of evidence against them. Rehnquist was not able to move the Supreme Court to develop a body of Fourth and Sixth Amendment rules to overturn, respectively MAPP v. OHIO (1961) or MIRANDA v. ARIZONA (1966). In Fourth Amendment jurisprudence he regularly joined majority and minority opinions that limited its scope, and with regard to the Sixth Amendment, he conceded the importance of MIRANDA when he wrote for the majority in DICKERSON v. U.S. (2000). For those looking for a broader examination of interactions among Justices during the Rehnquist era, one might want to read Mark Tushnet’s recent book (2005).
THE REHNQUIST LEGACY provides a good review of Rehnquist’s doctrinal analysis and changes that have occurred during his thirty-three year tenure on the Supreme Court. The various essays emphasize the Justice’s constitutional tests, his interpretations of core constitutional ideas, and how he modified those tests over time in a range of legal areas, including those associated with the Fourth Amendment, Establishment Clause, and federalism questions. Law faculty and social scientists, law students and advanced undergraduate constitutional law [*523] students will learn about Rehnquist’s broad decisional patterns and complex variations. The collected essays could provide next steps or additional areas of research concerning Rehnquist’s decisions and their doctrinal dimensions.
Tushnet, Mark. 2005. A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW. New York: W.W. Norton.
DICKERSON v. U.S., 530 U.S. 428 (2000).
MAPP v. OHIO, 367 U.S. 643 (1961).
MIRANDA v. ARIZONA, 384 U.S. 436 (1966).
ROE v. WADE, 410 U.S. 113 (1973).
RUST v. SULLIVAN, 500 U.S. 173 (1991).
© Copyright 2006 by the author, Steven Puro.
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