Jewish World Review Sept. 8, 2005 / 4 Elul,
Rehnquist: He kept the court together
Death distorts perception. We all know that. It invites exaggeration. In its immediate presence, time has not yet worked its slow miracle: proportion. Balance is lost, judgments made under the pressures of grief, the long view obscured.
Yet even now, on the death of William Hubbs Rehnquist last weekend, surely it is safe to say he will not be remembered as one of the great justices of the Supreme Court. Indeed, his was a career and philosophy based on a deep suspicion of greatness, of the Vision Thing, of the grand illusion that nine Guardians of some Platonic republic can take it upon themselves to declare their personal ideals and partisan prejudices the law, and So It Will Be.
What dangerous nonsense, especially for a republic that, though dedicated from its birth to eternal principles, is always in flux when it comes to their application. No wonder Plato's "Republic" was a work of fiction; it could never exist, not for long, not in the real world, where the only constant is change.
Mr. Justice and later Chief Justice Rehnquist came to recognize as much, and to devote his jurisprudence to a non-utopian, even anti-utopian, understanding of the function of law. And perhaps in that, in his suspicion of greatness, lay his greatness.
No single decision of his stands out; he produced no set piece of eloquence that can be rattled off in tribute to his service. Instead, this chief justice took it upon himself to hold the system together when the times, and the make-up of the court, required steady management rather than grand gestures.
Very much a partisan before he got to the high court, once there he knew better than to give partisanship its head. He revived the principle of states' rights in American law free of its poisonous racial tinge. Yet he did not confuse states' rights with some kind of ultimate solution to all the problems of government. (The shortcomings of Louisiana's state government, too, in Katrina's wake is only the latest proof that states' rights is no panacea.)
The chief justice sought to restore an old balance, not strike some dramatic new one. He saw far enough ahead to realize that, just because the Supreme Court declared an issue dead, didn't mean it would go away. Which was the burden of his dissent in Roe v. Wade, which he realized would open an endless debate over abortion in American law and society, not resolve it.
Continuity was his goal, not some dramatic break with the past. And so he helped hold the hold the country together through the much disputed post-presidential election of 2000, recognizing that one purpose of the law, perhaps its defining purpose, is to provide finality. So the republic could go on, rather than be stuck forever in a crisis of legitimacy.
The chief justice voted to resolve the electoral crisis at last, understanding that a president's legitimacy is established not by the margin of his victory but his conduct in office. (Richard Nixon was re-elected in 1972 in one of the great presidential landslides of American history, but within two years he would be driven from office in disgrace, having forfeited his legitimacy by his own actions.)
Always, always, this chief justice defended the judiciary from those who would not only criticize it (hey, it's a free country) but eat away at its political and moral authority.
In 1996, presidential candidate Bob Dole called for the impeachment of a judge who had made an unpopular ruling, and the incumbent, Bill Clinton, did not demur.
Indeed, that president, his eye as usual on the next election, and only the next election, quietly dispatched an emissary to talk the judge into changing his ruling.
Only the chief justice, in a speech at American University's law school, stood up for the independence of the judiciary, as he would again and again.
Let it be noted that Chief Justice Rehnquist defended not only the authority of the judiciary but that of the other branches of the federal government. He would in the end preside over a kind of rebirth of the federalist principle in American government.
No, he was not much for high drama, William H. Rehnquist. Drama would have looked silly on him, like those Gilbert & Sullivan stripes he affected on his robes for the Clinton impeachment trial. His true genius was for managing the mundane, for keeping this show, i.e., the American republic, on the road.
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