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Pausing from its headlong rush toward adjournment, the Supreme Court will meet in special session this week to honor the memory of the late Chief Justice William Rehnquist, who died last September. Following long-standing tradition, the Supreme Court Bar on June 15 will convene a program of praise and reminiscence from friends and former clerks, then offer a memorial resolution for submission to the Court. But even as Rehnquist’s admirers prepare to praise him, his legacy is unsettled. After a respectful mourning period, his opinions and those of the Rehnquist Court are taking a beating, with even Republicans and conservative academics critiquing his record in ways that could pressure his successor and former law clerk, John Roberts Jr., to complete what he left undone. Meanwhile, new information has emerged about Rehnquist: His long-private 1948 master’s thesis has been published, a former aide has confirmed that Rehnquist once planned to retire in 1991, and the originator of his early nickname, the “Lone Dissenter,” has stepped forward. Most striking in the nine months since Rehnquist’s death at age 80 has been the steady tide of academic symposia and law review articles that are taking him and his Court to task. Liberals criticize him for taking the wrong path, while conservatives say he did not travel far enough on the right one, allowing major doctrinal shifts on federalism, property rights, and other areas to fizzle or fade. Even federal appeals Judge J. Harvie Wilkinson III, a conservative who was considered a possible replacement for Rehnquist, mounted a detailed attack in the latest Stanford Law Review on the Rehnquist Court’s “split-the-difference” jurisprudence � allowing, for example, one Ten Commandments display to remain in a public place but not another, and upholding one University of Michigan affirmative action program but not the other. Though Wilkinson, who sits on the U.S. Court of Appeals for the 4th Circuit, noted that Rehnquist usually disapproved of the practice, the effect of splitting differences was to leave the impression of “a Court in a no-man’s land � a Court that has lost the legitimacy conferred by law.” In the same law review, University of Chicago law professor Richard Epstein, an iconoclastic libertarian, said that Rehnquist and retired Justice Sandra Day O’Connor “should have pushed harder and moved farther” to limit federal power in the Court’s federalism decisions. Jay Bybee, recently appointed by President George W. Bush to the 9th Circuit, also weighed in with a co-authored article, describing Rehnquist’s approach to separation of powers as “sphinxlike.” “It’s less criticism than disappointment,” says Pepperdine Law School professor Douglas Kmiec, a Rehnquist fan who also wrote in the Stanford publication and dismisses the current criticism as academic carping. “It is very seldom that law professors get together to offer bouquets of praise.” The Stanford publication does, however, also include articles from former colleagues and clerks praising Rehnquist. Much of the scholarship, pro and con, divides Rehnquist’s tenure into two or three phases, the major dividing point being his ascension from the position of associate justice to that of chief justice in 1986 � when principle may have given way to a greater interest in compromise and incremental decision-making. “He could have spent his life as a lone ranger, or he could bring Tonto along with him, as he did,” says Kmiec. But small compromises have a way of turning into major, anti-democratic decisions, argues Wilkinson, pointing to the incremental decisions that culminated in Roe v. Wade. Rehnquist, he says, presided over a Court that was too willing to chip away at basic principles. In Wilkinson’s view, Bush v. Gore in 2000 was another turning point. “The Court may have been so shaken by the criticism over Bush v. Gore that it sought to reassure the country with a display of centrist evenhandedness,” he wrote. Wilkinson and Bybee also suggest that in his final years Rehnquist lost his earlier “vigor and vim,” as Bybee puts it, and fought less to win over the votes of O’Connor and Justice Anthony Kennedy. A revolution on hold The promise of a revolution in federalism contained in Rehnquist’s 1995 decision United States v. Lopez, which struck down a federal law banning guns near schools as exceeding congressional power, faded in recent years, critics say. Even Rehnquist voted for federal power in 2003, in Nevada Department of Human Resources v. Hibbs, a ruling that applied the federal Family and Medical Leave Act to state employees. By his final days in office, only two other justices joined him in dissenting from Gonzales v. Raich, which upheld federal authority to regulate in-state cultivation of marijuana for medical uses. Conservatives give Rehnquist credit for making progress in limited areas such as restricting habeas corpus in criminal cases � with a strong assist from Congress � and winning support for school vouchers. But in many other areas, including hot-button issues such as abortion and affirmative action, the Rehnquist Court was a disappointment to the right. “Rehnquist didn’t get everything he wanted, but he did not have the votes,” says Rutgers University law professor Earl Maltz, the editor of a Rehnquist retrospective book. “We’ll see what happens now.” As Maltz’s comment suggests, the current scholarship on the Rehnquist Court may intensify scrutiny on Roberts as the successor and heir apparent to Rehnquist’s unfinished doctrines. Kennedy, likely the new swing vote, and Justice Samuel Alito Jr., O’Connor’s replacement, will also be key, but it may take another new justice, and a few more years, to see if Rehnquist’s doctrines are revived or remain short-lived. “It might be a mistake to end the chapter on the Rehnquist Court with the chief’s death,” says Notre Dame Law School professor Richard Garnett, a former Rehnquist clerk who earlier this year participated in a Rehnquist symposium at Indiana University School of Law that included both criticism and praise. One addition to the Rehnquist public record came along with the criticism in the Stanford Law Review: the first publication of Rehnquist’s youthful but erudite Stanford master’s thesis in political science, titled “Contemporary Theories of Rights,” written in 1948. “It was a great, overlooked find, a work of genius for someone aged 24,” says Pepperdine’s Kmiec, who first noticed a brief reference to it in one of Rehnquist’s own books. He tried to obtain a copy, one thing led to another, and, months later, after obtaining approval from Stanford’s archives and Rehnquist’s family, the law review decided to print the thesis in full. A lengthy analysis by Kmiec, charting its impact on Rehnquist’s later thinking, is included. Talk of resigning The Journal of Supreme Court History, published by the Supreme Court Historical Society, has also weighed in with a Rehnquist retrospective that offers several nuggets of interest. In one article, former Rehnquist clerk John Nannes reveals the origin of Rehnquist’s “lone dissenter” moniker. Nannes, now a partner at Skadden, Arps, Slate, Meagher & Flom, was assigned to think up the entertainment for a Rehnquist reunion in 1975 and impulsively bought a Lone Ranger doll at a Maryland toy store. The doll symbolized Rehnquist’s already noticeable trend of writing solitary dissents. So that evening, with his wife humming the “William Tell Overture,” the theme song of the long-running 1950s TV show, he and other clerks read from Rehnquist’s dissents and presented him with the doll. It remained on the fireplace mantle in Rehnquist’s chambers until he died. In another article, Noel Augustyn, Rehnquist’s administrative assistant from 1987 to 1989, reminisced about his time with the late chief justice, confirming what many have long suspected � that Rehnquist planned to retire long before he died in office. Augustyn says that Rehnquist told him he planned to retire in 1991, before the re-election campaign began for President George H.W. Bush. Rehnquist had no confidence that Bush could win. He and his wife, Nan, “had long looked forward to retirement,” Augustyn wrote. But Nan died in 1991, prompting Rehnquist to put off retirement because he could no longer share it with her. “For a man who could be simultaneously shy and gregarious, it would not be enjoyable entering retirement alone,” Augustyn wrote. “It was Nan Rehnquist’s death, then, that in effect changed Supreme Court � and American � history.” Tony Mauro can be contacted at [email protected]

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