Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The death of Chief Justice William Rehnquist late on Saturday ends his historic 33-year career on the Supreme Court and presents President George W. Bush with a rare challenge to fill a new vacancy just as John Roberts Jr., his nominee to Sandra Day O’Connor’s seat on the Court, was about to face Senate hearings. Bush answered part of that challenge swiftly, nominating Roberts on Monday to replace Rehnquist as chief justice. In an early morning announcement from the Oval Office, the president said he hoped the Senate would confirm Roberts before the Court sits for its next term Oct. 3. The Senate is expected to begin Roberts’ confirmation hearings as chief justice either Thursday or next Monday. The opening of his previously scheduled confirmation hearings, for the position of associate justice, initially was to be Tuesday, but that was canceled until after Rehnquist’s funeral on Wednesday. Roberts himself was a former Rehnquist clerk who would have been the first former law clerk to serve as a justice alongside the justice for whom he worked. Now Roberts could replace him if he is confirmed as the nation’s 17th chief justice. Rehnquist, 80, died at his home in Arlington, Va. after a 10-month battle with thyroid cancer. He was the first justice to die in office since Robert Jackson in 1954. He had squelched rumors of his retirement in July, promising to stay on the Court as long “as long as my health permits�.” But Court spokeswoman Kathy Arberg said his health took “a precipitous decline” in recent days, and his three children were with him when he died. President Bush in a statement on Sunday said Rehnquist’s death was “a tremendous loss for our nation” and indicated he would move quickly to name a replacement. Immediately, the speculation that followed O’Connor’s retirement announcement on July 1 resumed. Court historian David Garrow, now at Cambridge University, said Attorney General Alberto Gonzales was “the presumptive favorite” to replace Rehnquist, but other commentators offered a range of scenarios, including the elevation of Justice Antonin Scalia, renominating Roberts as chief justice, and even O’Connor postponing her departure. In a statement Sunday, Gonzales said Rehnquist “will surely be remembered as one of our Nation’s greatest Chief Justices, and his leadership, courage and humility will be missed.” Rehnquist’s colleagues issued statements Sunday lamenting his passing. Justice John Paul Stevens, who will preside over the Court as senior justice until Rehnquist is replaced, said, “William Rehnquist’s independent, impartial, and dedicated leadership of the Supreme Court has been an inspiration to those of us privileged to serve with him–and to the entire Nation as well.” Rehnquist had a remarkable Supreme Court career, morphing from “lone ranger” status as an associate justice into the influential leader of a conservative Court that nonetheless preserved affirmative action and abortion rights and furthered gay and women’s rights. As chief justice and titular head of the federal judiciary since 1986, Rehnquist gently nudged the nation’s highest court into the 21st century, complete with a user-friendly web site that made opinions available online, and quick release of oral argument audiotapes in landmark cases. He drew the line, however, at allowing camera coverage of Court proceedings. With a manner that was alternately genial, shy and stern, Rehnquist won admirers from all parts of the political spectrum. Republicans praised him for his fealty to a conservative jurisprudence while liberals generally found him to be an affable jurist who ran the Court collegially and well, seemingly unperturbed by his failure to steer the Court sharply to the right. “A great chief justice,” the late liberal lion Thurgood Marshall once said of Rehnquist. Though Rehnquist found conservative camaraderie in Justices Antonin Scalia and Clarence Thomas, his potentially conservative juggernaut was kept in check by other Republican appointees O’Connor and David Souter, and, to a lesser extent, Anthony Kennedy. One of only two dissenters in the 1973 case Roe v. Wade, Rehnquist failed to undo abortion rights when O’Connor, Kennedy and Souter joined to preserve abortion rights when it was at its most vulnerable in the 1992 case Planned Parenthood v. Casey. Even Rehnquist’s vaunted federalist push to give states greater protection from federal intrusion has seemed to lose steam in the last two terms. Just this June, Rehnquist found himself in the minority in a 6-3 decision that said federal anti-drug laws trumped a state initiative that legalized the medical use of marijuana. “It is quite clear that there are three dominant chief justices of American history, and they are John Marshall, Earl Warren, and William H. Rehnquist,” said O’Melveny & Myers partner Walter Dellinger III, acting solicitor general under President Bill Clinton. “I think that there’s just no question that he’s of enormous historical importance.” University of Texas Law School professor Douglas Laycock said, “He started as the young radical, the most extreme of the four Nixon appointees. He finishes not too far from the center, voting with O’Connor and Kennedy slightly more often than he votes with Scalia and Thomas.” Rehnquist was born in Milwaukee and served as a meteorologist in the Army Air Corps during World War II. He graduated from Stanford University and Stanford Law School, with a graduate degree from Harvard University in between. At Stanford, he finished first in his law school class just ahead of his future colleague O’Connor. The Supreme Court dominated much of Rehnquist’s post-law school life. In his 1987 book on the Court, Rehnquist recalled the day in 1952 when he first laid eyes on the “magnificent Greek temple of white marble” as a new law clerk to then-Justice Robert Jackson. In a memo he wrote for Jackson that later haunted his reputation, Rehnquist said in the context of the pending Brown v. Board of Education case that the discredited precedent Plessy v. Ferguson was right and should be re-affirmed. Rehnquist said in his confirmation hearings for associate and chief justice that the memo did not reflect his own views. Rehnquist went into private practice in Phoenix and cemented his conservative credentials by working in Barry Goldwater’s presidential campaign. He came back to Washington in 1969 to head the Justice Department’s Office of Legal Counsel and soon became involved in judicial selection at a time when several vacancies hit the Court. At first President Richard Nixon was not impressed by Rehnquist, who wore his sideburns long, and sported a pink shirt, psychedelic tie and hush puppie shoes at their first meeting. Nixon told an aide that “Renchburg” looked like a clown. As then-White House counsel John Dean wrote in a 2002 book, “All in all, an inauspicious introduction for a future Supreme Court nominee.” Rehnquist himself jokingly discounted his chances of being nominated to the high court, because “I’m not from the South, I’m not a woman, and I’m not mediocre.” But as Nixon considered and discarded various candidates, Rehnquist suddenly emerged, along with Lewis Powell Jr., as candidates to fill the seats of John Harlan II and Hugo Black, respectively. Because of the Jackson memo and allegations that he had harassed black voters as a poll watcher in Phoenix, Rehnquist’s confirmation was controversial, and he won by a 68 to 26 Senate vote. Once on the Court, Rehnquist became the hero of a growing conservative legal movement that valued “strict construction” of the Constitution and a “non-activist” approach to judging that looked askance at expansions of federal power. In a 1985 dissent in Garcia v. San Antonio Metropolitan Transit Authority, Rehnquist objected to the 5-4 majority’s grant of broad federal power over state sovereignty. But his dissent was brief. “I do not think it is incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of the majority of the court.” A decade later, he was proven right. In a series of rulings, Rehnquist led the Court in reining in congressional power under the Commerce Clause and strengthening state sovereignty in disputes with the federal government. “He has effected a sea-change in American constitutional jurisprudence,” said Pepperdine University law professor Douglas Kmiec, a former Reagan Justice Department official. “His sophisticated revival of federalism, in particular, renews that which makes democracy work — not in theory, but on the ground. It gives divergent voices a chance to be heard and prevail, not in one venue, but in 50. Had the Court heeded his wisdom more thoroughly, there would be less nonsense about red and blue division and far less cultural warfare.” Other scholars wonder whether Rehnquist’s federalism trend will persist after his departure. “In the short run, the ‘federalism revolution’ of the 1990s is undeniably his most significant substantive achievement,” said Cambridge University’s Garrow. “But whether these rulings will survive in the long run, or instead be reversed, remains to be seen. It’s much more likely that the Rehnquist Court’s surprisingly liberal rulings — on abortion, on gay rights, on gender — will actually represent the most indelible legacy.” Rehnquist’s followers began populating the Reagan Justice Department (one being the young John Roberts), and he became a favored choice to replace retiring Chief Justice Warren Burger in 1986. Again, many Democrats balked at Rehnquist’s nomination, and he was confirmed by a 65-33 vote. As chief justice, his judicial views did not change appreciably, but joined by fellow conservatives he was in dissent less often, and seemed more interested in reaching broader common ground. Hemmed in by liberal precedents, however, he sometimes was unable to advance conservative precepts in his decision-making. Those constraints became obvious in 2000 when, in Dickerson v. United States, Rehnquist wrote the majority opinion upholding the classic pro-defendant ruling Miranda v. Arizona — a 1966 precedent Rehnquist had often criticized previously. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now,” Rehnquist wrote. “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” As administrator of the Court, Rehnquist was able to preserve the Court’s traditions and penchant for secrecy, while at the same time keeping up with modern technology. In 2000, the Court launched a Web site that makes it easy to track cases. And starting with the Florida presidential election cases in 2000, Rehnquist agreed from time to time to allow immediate release of audiotapes of newsworthy oral arguments. As a result, for the first time the public outside the courtroom was able to hear the Court’s debates over current cases involving issues ranging from affirmative action to campaign finance reform to enemy combatants. The audiotape release seemed to mute, at least temporarily, the chorus of requests that the Court allow television cameras in. On the subject of cameras, Rehnquist was less adamantly opposed than his predecessor Warren Burger, but he still felt camera access might debase the Court’s image. Soon after he became chief justice, Rehnquist said, “I hope we don’t get to the time where the members of our court are trying to get on the six o’clock news every night, and I think if they did, it would lessen to a certain extent the mystique and moral authority” of the Court. But Rehnquist’s disapproval of the idea did not keep members of the press from trying to get cameras in. In 1990, with his blessing, the Judicial Conference approved an experiment with camera access for civil trials in selected lower courts. The experiment worked, by and large, with few if any negative findings. But in 1994, the conference declined to make access permanent � partly, it appeared, because of the media frenzy at the time over pretrial hearings in O.J. Simpson’s murder trial. Within the Supreme Court, Rehnquist also seemed open to at least testing the idea of cameras. In 1988, he allowed media lawyer Timothy Dyk �now a judge on the U.S. Court of Appeals for the Federal Circuit � to put on a private demonstration of how cameras worked. The demonstration went off without glitches, but none of the justices felt any strong incentive to alter the status quo. C-SPAN vice president Bruce Collins said that in comparison to the visibility of the other branches of government, the Rehnquist court’s resistance looks “just a bit silly.” But he credited Rehnquist with being “the first to open the door” to modern media. “Our hope is that his successor builds on his example.” Rehnquist had a sense of humor and not too high a sense of his own importance. He was shy, even awkward at times, though as his tenure as chief justice lengthened, he became increasingly self-confident. “He is not a Citronelle kind of guy,” said longtime friend and fellow poker player Robert Bennett, partner at Skadden, Arps, Slate, Meagher & Flom in D.C.. referring to a fancy D.C. restaurant. “He never let power go to his head.” “William H. Rehnquist is by nature quiet and humble,” said Pepperdine’s Kmiec. “His legacy is that he has shown us how to disagree with civility.” In private conversation when he told funny stories, he would sometimes start giggling before he finished his sentence. The Blackmun papers released last year included a bawdy limerick Rehnquist passed to his then-all male colleagues in 1975. In 1995, acting purely on his own whimsy, he began wearing a black robe with four gold stripes on each sleeve. The inspiration for the new attire, he said, was a costume he saw at a local performance of Gilbert & Sullivan’s Iolanthe. Rehnquist came in for some ribbing from his colleagues because of the stripes. The late Justice Harry Blackmun said he and his colleagues asked Rehnquist, “Was he wanting to bring back the crimson in the robes as the British had? What were the rest of us to do about it? Did this make him a sergeant or a captain? He was defensive about it, but not in an offensive way.” Rehnquist, like other justices, basked in anonymity. For his daily constitutional that helped alleviate his back problems, he was able to walk around the perimeter of the Court grounds largely unrecognized, though he was usually shadowed by a Court police officer or two. In a 2004 interview with C-SPAN, he said one of the most appealing aspects of being a Supreme Court justice is that “you don’t have to become a celebrity or raise your visibility in order to do your job.” Every four years he emerged from anonymity to conduct presidential inaugural ceremonies — George W. Bush’s on Jan. 20 was his fifth — and he became even more familiar to the public when he presided over President Clinton’s Senate impeachment trial in 1999. On occasion during the trial, television camera crews would camp out near his Arlington home to record his comings and goings–a loss of privacy he did not appreciate. Rehnquist won high marks for conducting the impeachment trial fairly, but characteristically he made light of his role. In a 2001 interview with PBS, Rehnquist borrowed a line from Gilbert & Sullivan �again from Iolanthe to say of his impeachment trial performance, “I did nothing in particular and I did it very well.” He continued, “There wasn’t much to do. I realized there wasn’t much to do. And I didn’t do it.” Rehnquist will also be remembered for presiding over a Supreme Court that decided the outcome of a presidential election. He was in the majority of Bush v. Gore, the 2000 decision that stopped the recount of Florida ballots and sealed the election of President Bush over Democrat Al Gore. The Court’s intervention in the case placed it in the center of a political firestorm. From the bench, Rehnquist could be a stern and forbidding presence. Though he mellowed in recent years, earlier in his tenure as chief justice, Rehnquist would correct lawyers’ pronunciation, scold lawyers for glancing at the clock behind the bench, and grow impatient with flabby locutions. In 1993, when then-solicitor general Kenneth Starr said he wanted to “share the record” with the justices, Rehnquist shot back, “Why not tell us the record, rather than sharing it with us.” He also for a time snapped at lawyers who addressed him as “Justice” or “Judge,” rather than chief justice. After his pique generated news stories, Rehnquist poked fun at himself; at one meeting he donned a feathered Indian headdress to underline his chiefly status. But Rehnquist also was keenly aware of the limitations of being chief justice–just one vote among nine, with few powers of persuasion over his independent-minded colleagues. He was usually unable to slow the torrent of questions aimed by justices at the lawyers arguing before them, and spoke enviously of a long-ago Canadian counterpart who was able to quiet his colleagues by tapping his pencil on the bench. “I have occasionally wished that I had similar authority in our court,” he said in a 1996 speech. But after the late Warren Burger’s more imperious rule, Rehnquist’s lighter touch was welcomed by justices and employees alike. “Politically or ideologically oriented evaluations of Chief Justice Rehnquist should not overlook what a successful and popular chief justice he was within the Court as the justices’ presiding officer,” said Garrow. “The contrast between Rehnquist’s undeniably happy Court and that of his predecessor, Warren E. Burger, could not have been greater.” In commencement speeches and talks with young people, Rehnquist urged listeners to live well-rounded lives and not measure success entirely by their work. “Find ways to enrich your life, entertain yourself, and to enjoy activities you might not have participated in before,” he told a 1992 high school graduating class in Arlington, where he lived in his Court years. “Enjoyment of this sort is not contingent upon fulfilling some far distant career goal, but can be harvested right now � today and tomorrow… Learn to live a day at a time.” Rehnquist’s own interests ranged from oil painting to tennis to poker. For years he participated in a monthly poker game attended, on and off, by the likes of current appeals court judge David Sentelle, former judge Robert Bork, senior judge Laurence Silberman and bigfoot lawyers like Bennett and Leonard Garment. The unspoken rule was that when lawyers were about to bring a case before the Supreme Court, they would drop out of the poker game temporarily, to avoid improper appearances. Characteristically, Rehnquist said he would never write a memoir, because publishers would want him to spice it up with criticisms of his colleagues � which he refused to do. He invoked Confederate leader Robert E. Lee, who said he did not want to write his memoirs “because he would have to deal unfavorably with a lot of people whom he likes and he was close to,” he told PBS in 2001. “I just don’t want to do that.” Tony Mauro can be reached at [email protected] Legal Times congressional correspondent T.R.Goldman contributed to this report. Associated Press reports contributed to this story.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.