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Jewish World Review Sept. 7, 2005 / 3 Elul, 5765

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An ‘Activist’ Justice

http://www.NewsAndOpinion.com | When the 1964 presidential candidacy of Arizona's Sen. Barry Goldwater carried only six states, many commentators concluded that conservatism, and especially his southwestern sort, would not be heard from again. But many conservatives said to themselves, "Well, we'll just see about that."

One of those was a young Phoenix attorney, William Rehnquist. After graduating at the top of his Stanford Law School class in which another Arizonan, Sandra Day O'Connor, finished third, his political interests were quickened by Goldwater's campaign.

Another conservative undiscouraged by 1964 was a Californian who came to the nation's attention as a political figure by giving a nationally telecast speech for Goldwater. Twenty-two years later, Ronald Reagan nominated Associate Justice Rehnquist to move along the Supreme Court's bench, where President Richard M. Nixon had placed him, to the center chair — the chief justice's — a few feet from where Reagan's first Supreme Court nominee, O'Connor, sat.

Rehnquist's life of public service, which began when he clerked for Justice Robert Jackson, ended three days before the scheduled beginning of Senate hearings on the nomination to the court of Rehnquist's former clerk, John Roberts. If Rehnquist's death occasions a proper assessment of his jurisprudence, the assessment will be a suitable coda to his lifelong reverence for the court and will dispel some confusion about it.

Our language is, just now, fogging our intelligence. It is said that Rehnquist was an "activist." That is true, but not especially illuminating, absent a caveat and a distinction. The caveat is that although Rehnquist was a conservative activist, he was not a radical. He was averse to overturning settled practices, and he knew how to honorably accept defeat — how to bring closure to an argument about the Constitution had his side lost.

One of his early passions was opposition to the 1966 ruling in Miranda v. Arizona — that state, again — concerning the constitutional duty of the police to notify criminal suspects of their rights to counsel. Rehnquist thought that the Constitution, properly read, did not require this and that effective police work could not countenance it. But 34 years passed, and when in 2000 the court heard a challenge to Miranda , Rehnquist wrote the majority opinion in a 7 to 2 decision upholding it: " Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. . . . While we have overruled our precedents when subsequent cases have undermined their doctrinal underpinnings, . . . we do not believe that this has happened to the Miranda decision."

The distinction that should be drawn regarding judicial activism is between what can be called policy activism and structural activism. Rehnquist practiced the latter.

Policy activism is result-oriented judicial decision making to implement social policies considered reasonable, humane or just by judges who are inclined to regard "reasonable," "humane" or "just" as synonyms for "constitutional" or "constitutionally mandated." Policy activism often involves minting new rights or finding novel expansions of old ones. Policy activism has resulted in court decisions rewriting the 50 states' abortion and capital punishment laws. And striking down manifestly unreasonable punitive-damage awards by juries as violations of the Constitution's "due process" guarantee. And affirming the constitutionality of "race-conscious remedies" — on the assumption, or mere hope, that they will fade away in 25 years.

Whereas policy activism often produces court-ordered results on matters best left to democratic institutions, structural activism protects the Constitution's assignment of democratic responsibilities. Rehnquist's conservatism of constitutional balancing sought equilibrium between the federal and state governments — and between all governments and other institutions that mediate between individuals and governments. Hence he sided with the Boys Scouts when a state tried to mandate acceptance of gay scoutmasters, and with the political parties when a state tried mandated primaries open to persons not members of the parties.

We have walked a long and largely irreversible path from the promise — without which the Constitution would not have been ratified — that the federal government's powers are limited because they are enumerated. Particularly, Rehnquist thought that the power of Congress to regulate interstate commerce was not a grant of power to regulate everything.

He took seriously what the Constitution's Framers said — that the federal government is restricted from some activities and spheres of life. By fencing in the federal government, and sometimes other governments, too, Rehnquist was reflecting the "don't fence me in" conservatism of the Southwest. Like that spacious and welcoming region of restless energy and social mobility, the spirit of liberty that infused Rehnquist's jurisprudence was heard loud and clear after 1964.

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