First Among Equals (5 page)
And it is the judiciary's interpretation that ultimately counts. As Marshall wrote in
Marbury v. Madison,
“It is emphatically the province of the judicial department to say what the law is.”
These were Marshall's enduring legacies. National power—especially the power of Congress—would be interpreted generously, to allow Congress and the president to fashion policies and programs that met the felt necessities of the time. At the same time, it was the role of the courts, ultimately the Supreme Court, to be the final arbiter of the meaning of the Constitution.
T
HE
J
USTICES
T
HE
S
UPREME
C
OURT SINCE
E
ARL
W
ARREN
stepped down has been a different Court—more lawyerly, and less activist. There's no mystery why. Republican presidents opposed to the Warren Court's activism were able to make the large majority of the appointments of the past three decades.
President Nixon made the first four appointments. In 1969, he replaced Earl Warren with Warren Burger, and then, in 1970, he replaced Abe Fortas with Burger's fellow Minnesotan, Harry Blackmun. Two years later Nixon made his other two appointments, as Lewis Powell, Jr., succeeded Hugo Black and William Rehnquist took the seat vacated by John Marshall Harlan II. In 1975, President Ford replaced William O. Douglas with John Paul Stevens. Then an appointments drought set in: Jimmy Carter became the first president ever to serve a full term without making an appointment to the Supreme Court. A vacancy did occur soon after Ronald Reagan took office, as Potter Stewart (appointed by Eisenhower) stepped down. Reagan took the historic step of naming the first woman: Sandra Day O'Connor. The next vacancy occurred in 1986, when Chief Justice Burger retired. President Reagan elevated Associate Justice Rehnquist to Burger's center seat and then appointed Judge Antonin Scalia, of my former court, to take Rehnquist's now empty chair. A year later, a second member of the Burger Court, Lewis Powell, retired; Reagan appointed Anthony Kennedy. In 1990, President Bush, moving to fill the seat vacated by William J. Brennan, Jr., who had served since 1957, tapped David Souter. A year later, Bush replaced Thurgood Marshall, an appointee of President Johnson, with Clarence Thomas. So it was that from 1969 through 1991, only Republican presidents had picked Supreme Court justices. In his first term, President Clinton got the chance to appoint the next two, and most recent, justices, replacing Byron White (the last holdover from the Warren Court) with Ruth Bader Ginsburg in 1993 and Harry Blackmun with Stephen Breyer in 1994.
Today's Court, the Rehnquist Court, thus includes, in addition to Chief Justice Rehnquist, Justices Stevens, O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer. Each justice has made distinctive contributions. Yet some have proved, and promise to continue to prove, more influential than the rest. They are, in their order of appointment: the chief justice, O'Connor, Scalia, Kennedy, and Breyer. They are the justices to watch most closely. Over the past decade, their influence and power have been pivotal in determining the Court's direction. But the other four, especially Clarence Thomas, are not to be overlooked. As we will see, each has made his or her own mark.
William Hobbs Rehnquist, sixteenth chief justice of the United States, moved to the pivotal center seat at the Court in September 1986 after fifteen years as a very productive associate justice. At the time widely regarded as the smartest justice in the courthouse, he became Chief Justice Burger's go-to colleague.
In a courthouse filled with suits, lawyerly formality being de rigueur at the time, Rehnquist wore Hush Puppies and sport coats. Efficient at getting the work done, he was at the same time easygoing and well liked around the Court. It was a formidable combination. Brilliant, first in his class at Stanford Law School, yet unstuffy and down-to-earth, then Justice Rehnquist was hugely popular, even among the clerks from liberal chambers. He was especially popular at the “take-a-justice-to-lunch” sessions, a pleasant, informal tradition in which each chambers’ set of law clerks would invite, over the course of the term, each of the other justices to an informal, off-the-record lunch. This was viewed as a priceless benefit of being a clerk at the Court. The easygoing, unassuming justice from Arizona—a close friend of the Court's most liberal member, William O. Douglas, a holdover from the Warren Court years—filled his dance card quickly. No fancy restaurants. Cheeseburger and a beer was a favorite combo, befitting his roots in Milwaukee. He was interesting, direct, and friendly, but never overly chummy or ingratiating. He was not a slap-you-on-the-back type, nor was he gregarious, like the elfish, much-beloved Justice Brennan, an Eisenhower appointee and faithful lieutenant to Chief Justice Warren, who became the longtime leader of the post-Warren Court's liberal wing. The cerebral Rehnquist would saunter around—taking walks with his clerks, unnoticed by tourists—perhaps with an Anthony Trollope novel under his arm.
The casual, no-airs friendliness of this native Wisconsinite transplanted to Arizona did not in the slightest dilute his uncompromisingly conservative judicial philosophy. Rehnquist was greatly admired by then Chief Justice Burger, who for his part was more deeply conservative than his voting behavior indicated. The two were so philosophically in agreement that it was natural for writing assignments to flow easily from Burger in Justice Rehnquist's direction. And Rehnquist was gutsy. He didn't seem to mind if he was in solitary dissent. He became known as the “Lone Ranger.” He was willing to stand up—all by himself—against the crowd of justices moving in a different direction.
As President Nixon's youngest appointee (at age forty-seven), Rehnquist was seen as situated at the vanguard of change, of movement away from the recently concluded Warren Court years. As a junior justice, he attacked Warren Court precedents with relish, sought to narrow them at every turn, and dissented deeply—as he did in
Roe v. Wade
—when the Burger Court itself engaged in activism. He was decidedly not a centrist, even though the Court under Chief Justice Burger was moving in that direction. The trend lines were especially strong due to the powerful centrist influence of Justice Lewis Powell, Jr. The order of the day was a quiet departure or backing off from Warren Court precedents, but only in the sense of not pursuing their logic further. This was, as one student of the Burger Court put it, the “counterrevolution that wasn't.”
This genteel moderation did not appear to sit well with the Court's youngest, and newest, member. He wanted to move more aggressively, to clean out the precedents littering the pathways of constitutional law.
Justice Rehnquist made his views known outside the courthouse, where he openly criticized liberal theories of constitutional law. For example, in a 1976
Texas Law Review
article, he lampooned the idea of the “living Constitution,” calling it an invitation to judicial lawmaking. Judges, in Rehnquist's view, should not interfere with the representative process. They should allow democratic self-rule. Rehnquist's understanding of the judicial power echoed, ironically, President Franklin Roosevelt's criticism of the “Nine Old Men” who had struck down important measures passed, at FDR's urging, by the New Deal Congress.
In 1986, when Reagan decided to appoint Rehnquist chief justice, he also settled on Antonin Scalia as Rehnquist's successor. Scalia had distinguished himself as a powerful intellectual voice on the U.S. Court of Appeals in Washington and through his decisions had endeared himself to legal conservatives. The expectation was, at least inside the Reagan administration, that Rehnquist, with the considerable help of Scalia, would move the Court significantly to the right.
It was not to be. Soon, the Rehnquist judicial tone changed. While he continued to articulate certain core beliefs, most importantly his consistent view that
Roe v. Wade
was wrongly decided and should be overruled, he was no longer speaking out, and seldom if ever in solitary dissent. His lectures at law schools railing against judicial excesses likewise were now a thing of yesteryear. Instead of continuing the conservative fight, his long-standing interest in history came to the fore. Chief Justice Burger had read widely, especially in history and biography. But Rehnquist not only read, he wrote. He turned out a charming book on the Court published in 1987. After that successful initial outing, and in a remarkable twist of irony, he began to steep himself in the history of impeachment. Little could he have sensed that he was preparing himself for his own role in presiding over the 1999 Senate impeachment trial of President Clinton.
Not only had he turned to more genteel pursuits, Rehnquist soon showed that his philosophy of judicial restraint had an unexpected effect. Other than
Roe v. Wade,
few issues so inflamed Reagan administration lawyers as those involving federalism and separation of powers. The principles emphasize, respectively, (1) the rights of states to carry on their policies free from federal interference and (2) the separation of powers at the national level among the executive, legislative, and judicial branches. These were seen as seminal conservative principles. Terry Eastland, a Reagan administration alumnus, later wrote a book about the importance of a strong executive branch, drawing from ideas first put forth by Alexander Hamilton, titled
Energy in the Executive.
Part of the received wisdom was that Congress was ever seeking to aggrandize its power, particularly at the expense of the executive branch.
This presumption carried over into the Bush administration. When coming on board as solicitor general, I was summoned over to the White House on one occasion to meet with Boyden Gray, counsel to the president. The sole subject of discussion was separation of powers. This was discussed generally, not in the context of a specific case. Gray made this clear: Restoring the balance between Congress and the president was an overarching concern requiring the careful attention of senior lawyers in the executive branch.
The Burger Court had struck down as unconstitutional important congressional initiatives—which the executive branch regarded as power plays—such as the long-used legislative veto (whereby a single House, or even a single committee, invalidates a set of agency regulations). But soon after Rehnquist became chief justice, the Court handed the Reagan administration a bitter separation-of-powers defeat. The Court held that the independent-counsel law, already enshrouded in controversy by virtue of Judge Lawrence Walsh's unfolding investigation into Iran-Contra, was
not
unconstitutional.
The omens had seemed favorable finally to rid the system of this unwanted post-Watergate “reform.” The Reagan administration had early on disagreed with the independent-counsel law, and urged that it be allowed to lapse—in testimony before Congress presented by future mayor and then Associate Attorney General Rudy Giuliani. And then the D.C. Circuit had struck it down, albeit by a 2–1 vote. Impressive voices, such as those of former Attorneys General Griffin Bell, Edward Levi, and my former boss at the Justice Department, William French Smith, condemned the law as misguided and unconstitutional. The United States—through the solicitor general — argued that the independent-counsel law improperly invaded the sphere of the executive branch in a core constitutional function: carrying on criminal investigations and making prosecutorial decisions based on those investigations.
Nonetheless, Chief Justice Rehnquist voted to uphold the law. Even more, he wrote the majority opinion and did so in a worrisome way. He invoked a vague sort of balancing test, an approach ordinarily anathema to conservatives, who prefer articulation of clear principles and faithfully sticking with them. A man who had once headed the office where executive branch power is most zealously guarded, the Office of Legal Counsel of the Justice Department, now, as chief justice of the United States, authored an anti-executive power opinion, and for an overwhelming seven-vote majority. (Justice Anthony Kennedy, then new to the Court after the unsuccessful nominations first of Judge Bork and then Judge Douglas Ginsburg, to succeed the retiring Lewis Powell, Jr., did not participate.) Only newcomer Antonin Scalia, who had likewise headed OLC, was in dissent. A passionate and fervent dissent it was, eminently quotable as so many Scalia opinions have proved, but Scalia was all alone. No longer was Chief Justice Rehnquist the Lone Ranger. To the contrary, the Court's liberals and centrists were rallying under his leadership.
This enormous setback for conservatives in 1988 was then hugely compounded years later in 2000 as the chief authored the opinion reembracing one of the icons of the Warren Court era, the
Miranda
decision (discussed in detail in Chapter Eleven). Reagan administration alumni watched in disbelief as Rehnquist wrote, in a pithy opinion, that
Miranda
would stand. The contrast between the early Rehnquist (the associate justice) and the later Rehnquist (the chief justice) was vivid. As associate justice—on assignment from Chief Justice Burger—Rehnquist had authored a pivotal opinion (which won majority support on the Court in 1974) that the
Miranda
principle was not a core constitutional holding. But as chief, he embraced the idea that
Miranda
was a constitutional holding that could not be amended by Congress (much less overruled).
This contrast between the early and the later Rehnquist duly noted, however, it is emphatically not the case that the chief justice experienced the sort of complete philosophical transformation seen in the cases of Justice Harry Blackmun and, more recently, Justice David Souter. Nixon appointee Blackmun wound up voting consistently with the most liberal members of the Court. So has Bush appointee Souter. But not Rehnquist. The chief has been, above all, at the vanguard of restoring, as he sees it, the appropriate balance in the constitutional structure between the federal government and the states. This—the concept of federalism, aimed at keeping Congress within its enumerated powers under the Constitution—has been Rehnquist's signature issue. Rehnquist has been to federalism what his predecessor, Chief Justice Burger, was to separation of powers. As chief justice, Rehnquist has been a tireless and effective defender of what he sees as the rightful domain of the states.
