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Washington-Chief Justice William H. Rehnquist is one year short of the Supreme Court tenure of his idol, Chief Justice John Marshall, often called “the Great Chief Justice.” Will Rehnquist also be considered “great”? In 1971, one year before Rehnquist first took his seat on the high court, two law professors conducted a survey on Supreme Court justices, asking law school deans, lawyers, judges and other legal scholars to rank the nation’s justices, throughout history to that time, from “great” to “failure.” The survey by Albert Blaustein and Roy Mersky found only 12 justices earning the rank of “great.” And among those 12, only five were chief justices. Marshall was the only unanimous choice. The other “great” chiefs were: Earl Warren, Harlan F. Stone, Charles Evans Hughes and Roger B. Taney. Many court scholars and others believe Rehnquist joins that handful of “great” chief justices. More difficult for many is how to articulate just what makes a justice great. Three years ago in a William and Mary Law Review article, Jack Balkin of Yale Law School examined great justices like Marshall and isolated criteria for greatness. He subsequently wrote that 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 Rehnquist eventually would be considered “great,” added Balkin, would rest on “whether he has been on the right side of the most important questions he fought over as judged by future generations.” After 33 years on the high court-19 as chief justice-and amid rumors of imminent retirement due to illness, Rehnquist-great or not-has substantial jurisprudential and administrative legacies. And in both areas, with almost no dissenting voices, he has earned the respect and good will of colleagues. The sobriquet, “the Rehnquist Court” is not ceremonial but accurate, said constitutional law scholar Thomas Baker of Florida International University School of Law, who served as acting administrative assistant to Chief Justice Rehnquist in the late 1980s. “He has gone from Nixon appointing him in his 40s and mispronouncing his name on the Watergate tapes, to the ‘Lone Ranger’ of dissents to Super Chief.” Rehnquist once said in a speech: “A President brings to office his entire cabinet, from Secretary of State on down. But the Chief Justice brings to office no one but himself. He takes his seat with eight Associate Justices who are there already, and who are in no way indebted to him. “Perhaps the best description of the office is to say that the Chief Justice has placed in his hands some of the tools which will enable him to be primus among the pares but his stature will depend on how he uses them.” Rehnquist also once wrote that he admired Charles Evans Hughes’ effort to achieve unanimity in decisions and thought it was a good goal for which to strive, recalled court scholar Douglas Kmiec of Pepperdine University School of Law. Unanimity promotes certainty in the law and conveys a strong institutional voice. But unanimity has been elusive on the Rehnquist Court on issues ranging from abortion to religion to terrorism. In fact, two terms ago, in the two terrorism-related decisions that would define the 2003-04 term, not only was unanimity missing but so too, in a way, was Rehnquist. He authored neither opinion: He was in dissent on the question of whether Guantanamo Bay detainees could file habeas corpus petitions in federal court, and he joined Justice Sandra Day O’Connor’s opinion on the government’s detention of American enemy combatants. On the final day of the term just ended, Rehnquist read from the bench the court’s judgment in the Ten Commandments monument case out of Texas-a church-state challenge and long a hot-button issue in the country. The case had so many separate concurrences and dissents that it prompted the chief justice to joke, “I never knew we had so many justices on the court.” He also has not been a coalition-builder, a skill for which Earl Warren and William J. Brennan were famous, added former Blackmun clerk, Mark Rahdert of Temple University Beasley School of Law. “He has been willing to allow the court to splinter,” explained Rahdert. “I don’t mean just 5-4, but 4-1-4, 4-3-2, etc., where there is no majority position and the court is issuing a series of seriatim-type of opinions and hard for country to figure out what the law is after he gets done with it.” But Rehnquist has been effective in taking advantage of coalitions of justices that emerge around positions that he favors, said Rahdert, who believes Rehnquist will be considered one of the great chief justices. “He is not one who speaks very often to unify the court, but he is able to see when a coalition or majority is emerging on an issue and direct that majority,” said Rahdert. The Warren Court, for example, developed the concept of a “reasonable expectation of privacy,” which became the central focus of Fourth Amendment jurisprudence in the Burger Court, he said. “Then-Justice Rehnquist realized that concept was a malleable concept and could be pushed in a variety of directions. He also realized the court had a coalescing majority that would give latitude to law enforcement. He managed to utilize that concept to afford wide leeway to conduct searches and surveillance by law enforcement.” So much so that early in Rehnquist’s tenure as chief justice, the American Civil Liberties Union accused him and his coalescing majority of reducing the Fourth Amendment to the “3 1/2th Amendment.” Rehnquist’s views overall have remained remarkably consistent over his 33 years. He generally has favored law enforcement over criminal defendants; greater government accommodation of religion; states’ rights over federal and judicial power; and a narrow view of the 14th Amendment, eschewing the creation of new rights. “He’s somebody who began in dissent and stuck with his guns and eventually the court moved to him,” said Michael Dorf, vice dean of Columbia Law School. “Unlike someone like Harry Blackmun, of whom it could be said he became more liberal over the years, the chief hasn’t become more conservative.” If forced to name one area that has characterized Rehnquist’s leadership of the court, court scholars and others name the resurgence of federalism as the defining characteristic-Rehnquist’ interest in limiting national government power, both legislative and judicial, in favor of decision-making by state and local governments. “I think the legacy of William Rehnquist has to be that the states are sovereign and important, not just as sources of law and experimentation, but he tries to express they are important as a matter of personal affinity-this is where home is,” said Pepperdine’s Kmiec. Debate on whether it is a lasting legacy already has begun because of decisions in recent terms that appear to retrench. Most of the court’s federalism rulings favoring states’ rights have been 5-4, reflecting their tenuous nature. Federalism concerns have driven another area where Rehnquist clearly emerges as a leader-restrictions on state prisoners filing federal habeas corpus petitions for review of their convictions and sentences. Rehnquist was years ahead of Congress in imposing, along with his conservative colleagues, new habeas limits, said Kent Scheidegger of the Criminal Justice Legal Foundation. He wrote Wainwright v. Sykes, 433 U.S. 72 (1977), which said a state prisoner who procedurally defaults a claim in state court cannot attempt to litigate it in federal habeas-”a major turning point” in federal habeas law, said Scheidegger. And it was Rehnquist who, in 1987, appointed retired Justice Lewis Powell to head a commission examining why the time between capital sentencing and execution had become so prolonged. Rehnquist came to the court with a view that criminal defendants were manipulating the system in more ways than one, said Kmiec. He didn’t support the exclusionary rule and didn’t believe Miranda v. Arizona, 384 U.S. 436 (1966), was constitutionally based. But he sublimated his views on Miranda in the interest of doing what was right for the court as an institution in Dickerson v. U.S., 530 U.S. 428 (2000), reaffirming Miranda in his majority opinion, said Kmiec and others. Beyond federalism, Kmiec and others credit Rehnquist with the court’s greater accommodation of religion by government under the establishment clause, which can be seen through a progression of cases from Mueller v. Allen, 463 U.S. 388 (1983), a state tax deduction for expenses of nonpublic school students, to Zelman v. Simmons-Harris, 536 U.S. 639 (2002), a school vouchers decision. “It was not freedom from, but freedom of, religion, and more latitude to individual citizens to allocate public resources and to incorporate religion in the use of those resources,” said Kmiec. A ‘great’ administrator Inside and outside of the high court, Rehnquist is regarded as a splendid administrator, someone who is efficient, shares the workload, expects others to operate on time and maintains warm relationships with clerks and colleagues. “The consensus is Chief Justice Burger was not a bad administrator and Earl Warren was pretty awful at it,” said Columbia’s Dorf. “Rehnquist has paid a lot of attention to running the court and the federal judiciary more generally. It’s part of the work of a chief justice that generally goes unnoticed.” An atmosphere of respect and collegiality pervades the high court building almost every day, said Florida International’s Baker, who served as Rehnquist’s acting administrative assistant in 1987. “Rehnquist set the tone for that,” he said. Everyone watched Rehnquist closely when he became chief to see if the man who kept a Lone Ranger doll in his chambers could make the transition from lone dissenter to leader, recalled Baker. “If you watch him using his power to assign opinions, he, I think, puts the court and Constitution ahead of what might be described as personal ambition,” he said.

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