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Cover Story - The Rehnquist Court

May 21, 2005

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Justice William Brennan Jr. was in an animated mood, even for him. It was May 27, 1987, toward the end of the Supreme Court's first term since Justice William Rehnquist's 1986 promotion to chief justice. The Senate vote had been 65-33, amid bitter attacks -- even charges of perjury -- from liberal groups.

Long the Court's leading liberal, Brennan was sharing with this reporter his assessment (confidential, until now) of the new chief justice, who had long been its leading conservative.

"He's the reason the opinions are coming down faster," enthused Brennan. "He's just been a breath of fresh air. He's so damned personable. No more listening to long harangues in criminal cases [during the Court's private conferences]. He lays his position out, casts his vote. You know exactly where he stands in every god-damned case. And he's meticulously fair in assigning opinions. I can't begin to tell you how much better all of us feel ... and how fond all of us are of him personally."

Rehnquist's predecessor, Warren Burger -- known for long harangues and a less-than-fair approach to assigning opinions -- had been an easy act to follow. ("If one's in the doghouse with the chief," Justice Harry Blackmun once said of his former best friend Burger, "he gets the crud.") But the affection and respect for Rehnquist among his colleagues, then and now, is nonetheless striking.

Echoing Brennan's praise of Rehnquist to this reporter a few weeks later, Justice Lewis Powell Jr. added: "In many ways, he's the best-educated person I've ever worked with, very familiar with the classics. He'll quote them at conference. Everybody agrees generally, I suppose, that he's brilliant, but he has a good sense of humor, and he's very generous, and he is principled."

Thurgood Marshall, Brennan's liberal ally on the Court, later called Rehnquist "a great chief justice." This from the man who had been the NAACP's lead lawyer in Brown v. Board of Education -- and about the man once assailed by liberals for having written in 1952 that the Court should uphold segregated schools and a few months later that it was "about time that the Court faced the fact that the white people in the South don't like the colored people." Not to mention Rehnquist's subsequent advice to Sen. Barry Goldwater to vote against the 1964 Civil Rights Act.

(The statements are from memos Rehnquist wrote as a young law clerk to Justice Robert Jackson. He has said he was expressing Jackson's views, not his own, in the Brown memo. Many analysts of the memo, including a Jackson biographer, find that implausible.)

The views of Brennan and Powell -- quoted here because of their implicit consent to posthumous publication -- as well as Marshall suggest that Rehnquist has at least one attribute of greatness: the esteem of his colleagues. And now, with retirement possibly drawing closer, this seems to be an appropriate time to take a broader look at Rehnquist's 33 years on the Court, including more than 18 as chief justice, during which he has also found time to write four books; paint; swim for exercise; bet on basketball games and elections; plot practical jokes; play poker (with Justice Antonin Scalia and other Washington big shots) and bridge and charades; and enjoy his eight grandchildren.

Speculation has been rampant in Washington that Rehnquist's serious case of thyroid cancer, which kept him away from the Court for five months, would force him to resign by this summer. But he returned to the Court's center chair on March 21. At 80, Rehnquist appears remarkably robust, mentally sharp, and chipper in private, according to friends. And he has always seemed to carry his opinion-writing and administrative workloads effortlessly. So maybe Rehnquist will surprise a lot of people and stay on for another term or two.

Surprises mark the story of this Phoenix lawyer. President Nixon, after all, put him on the Court in 1971 after having asked an aide the name of "the guy dressed like a clown." (Rehnquist wore loud shirts, psychedelic ties, and Hush Puppies.) And after asking, "Is he Jewish? He looks it." (Nixon also had a habit of calling him "Renchburg.") Rehnquist has peppered his career as chief justice with a succession of surprises. Most notably, a few of his major opinions and votes since 1988 have stunned former Rehnquist clerks (among many others) because of their apparent inconsistency with his positions in previous cases and with the strongly conservative views for which he has always been known.

Did "the Chief," as clerks have called Rehnquist since President Reagan promoted him, decide to be different from "the Boss," as clerks had called him back in the days when he had also earned the moniker "the Lone Ranger" by positioning himself on the Court's right flank?

Rehnquist's Biggest Surprise Perhaps the biggest surprise -- and the most revealing -- came five years ago, in Dickerson v. United States. The issue was whether to overrule Miranda v. Arizona, the Warren Court's landmark 1966 decision requiring police to give suspects being placed under arrest the soon-to-be-famous "Miranda warnings": You have the right to remain silent, to consult a lawyer, and so forth.

Like Nixon, and like Congress, which had sought to overrule Miranda by legislation, Rehnquist had long seen the decision as a misinterpretation of the Constitution that would help criminals go free. He had written several decisions narrowing Miranda's reach.

But in Dickerson, the same Rehnquist electrified the stately courtroom by announcing a resounding reaffirmation of Miranda, in an opinion he authored for a 7-2 majority. Whether or not it was correct when decided, he wrote, Miranda must be respected as a major precedent that "has become embedded in routine police practice to the point where the warnings have become part of our national culture."

This decision provoked a bitter dissent from Rehnquist's usual conservative allies, Justices Scalia and Clarence Thomas. Rehnquist's opinion, Scalia wrote, "converts Miranda from a milestone of judicial overreaching into the very Cheops' pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance."

What had happened? Nobody believes that Rehnquist had come around to thinking that Chief Justice Earl Warren's opinion in Miranda was a correct interpretation of the Constitution. Rather, as Rehnquist himself explained more generally in a rare televised interview in March 2004 with PBS's Charlie Rose, over time most justices "probably are more ready to accept, if not agree with, decisions that you're on the short side of."

Dickerson may also illustrate Rehnquist's sense of his responsibility, as chief justice, to focus in such momentous cases on preserving the Court's own power and prestige, rather than on the fine points of constitutional theory -- never a Rehnquist priority in any event. Indeed, the fact that Congress had sought to overrule Miranda may have cemented Rehnquist's determination not to do so: "Congress may not legislatively supersede our decisions interpreting and applying the Constitution," he declared in the decision.

Rehnquist added an exclamation point by taking the opinion for himself. This reflected the natural desire of any chief justice not only to have his name on the big ones, but also to control how broadly they are worded. Justice John Paul Stevens, who as the Court's senior member would have written or assigned the majority opinion had Rehnquist dissented, was and is far more liberal on defendants' rights than Rehnquist. Stevens, or any of the other majority justices, might well have used language inviting lower courts to interpret Miranda more broadly than Rehnquist would want.

So in a sense, Dickerson is consistent with the Rehnquist Court's pattern of favoring police and prosecutors: Although stopping short of overruling the Warren Court's big decisions expanding defendants' rights, the justices have limited the reach of those decisions.

Rehnquist's long-standing pattern of deference to the majority -- which has generally inclined him to rule against expansive interpretations of individual rights -- may have also influenced him in Dickerson. By 2000, most of the country had clearly come to a favorable view of Miranda. Indeed, in a subsequent Newsweek poll, respondents agreed with Rehnquist's reaffirmation of Miranda by a whopping 86 percent to 11 percent.

On the other hand, the Dickerson opinion, with its insistence on the Court's supremacy in expounding the Constitution, is one of many in which Rehnquist and his Court have assertively defended and expanded the Court's own claims of broad power to set national policy. The more-liberal justices have been especially aggressive in striking down state laws on abortion rights, gay rights, church-state issues, the death penalty, and other social issues. The conservatives, usually including Rehnquist, have been especially aggressive in curbing congressional regulation of the states and of noncommercial intrastate matters, such as violence against women, and in deciding the outcome of the 2000 presidential election. The centrists, Sandra Day O'Connor and Anthony Kennedy, who tipped the balance in these cases, have been aggressive across the board.

Despite Rehnquist's majoritarian bent, "the legacy of the Rehnquist Court," Walter Dellinger, a leading scholar who was acting solicitor general in the Clinton administration, has said, "is going to be judicial supremacy and a willingness to set aside the judgments of the other branches of government."

How Good a Chief Justice? How will history rate Rehnquist? Putting aside what one thinks of his brand of conservatism, the question can be divided into five categories:

1. Has he persuaded his fractious colleagues to come together in the big cases in ways that enhance public understanding of and respect for the Court?

2. Has he has persuaded any of them to move closer to his own brand of conservatism?

3. How impressive are his opinions, dissents, and concurrences as a body of work?

4. Has he led the justices to work hard and effectively at their often unglamorous job of resolving conflicts among lower courts and of fostering clarity and consistency in the law?

5. Has he succeeded in his modest aspiration, voiced in his 1986 confirmation hearing, to foster a "smoothly functioning Court"

"No chief justice in history has ever gone down as a great one who didn't succeed in massing the Court," Justice Brennan told this reporter in July 1988, in another conversation about Rehnquist.

"Massing the Court," Brennan had previously explained, refers to "the extraordinary responsibility that falls on the shoulders of the chief justice to come as close as we can to unanimity," so that the Court's decrees will be "more readily accepted." The leading example is Earl Warren's successful campaign to win over doubtful colleagues to make unanimous his ground-shaking 1954 ruling against school segregation in Brown.

During Rehnquist's second term as chief justice, which had ended a few days before this reporter's July 1988 conversation with Brennan, Rehnquist had written two quite surprising opinions for the Court, both of them applauded by liberals, and both of them textbook examples of "massing the Court."

In Hustler v. Falwell, a unanimous Court reversed a $200,000 jury award for "intentional infliction of emotional distress" to television evangelist Jerry Falwell against Hustler magazine, which had run a savage, ribald parody of him and his mother. Rehnquist endorsed and extended a line of decisions -- beginning with Brennan's own landmark 1964 opinion in New York Times v. Sullivan -- designed to give "breathing space" to First Amendment freedoms by curbing libel suits. This from the same Rehnquist who had consistently rejected such First Amendment defenses in the past and had said that Sullivan "should be reconsidered."

In Morrison v. Olson, Rehnquist wrote a landmark decision for a 7-1 majority (with Scalia dissenting) upholding the now-lapsed federal law providing for judicial appointment of independent counsels to investigate possible high-level crimes. This was a stunning rebuff to the Reagan administration and its claim of exclusive presidential power over prosecutions.

Brennan was especially enthusiastic, and not only because he strongly agreed with these two opinions. Brennan was also "anxious for [Rehnquist] to have a career ranking with [the] great chief justices," he said. And he was cautiously hopeful that Rehnquist might be on his way. "His votes and opinions in [those] cases are not the way you would have expected him to vote, and not the kind of opinions you would have expected him to write a couple years ago," Brennan said. "He senses ... that he, as chief justice, has an obligation to accommodate his views to those of the majority when he can. And if that's what's happening, it's terribly important."

Brennan also stressed that Morrison was "one of the most important cases in all of constitutional jurisprudence, because of what it says about separation of powers. None of the three branches can ever again claim to be the absolute arbiter of anything." The Bush administration learned this the hard way in June 2004, when the Court rejected its claims to be absolute arbiter of the detention and treatment of suspected "enemy combatants."

Rehnquist has continued to surprise, now and then, by siding with liberals to cement strong majorities in a handful of cases over the years. Along the way, he has also displayed a mild feminist streak.

In addition to Dickerson, Rehnquist voted with the majority in a 7-1 decision in 1996 requiring Virginia's state-supported military college, the Virginia Military Institute, to admit women (United States v. Virginia). Scalia said in dissent that this was "not the interpretation of a Constitution, but the creation of one."

And in 2003, by holding in Nevada Department of Human Resources v. Hibbs that women's rights trumped states' sovereign immunity, Rehnquist sharply limited the reach of a line of states'-rights decisions that he himself had championed. Stressing Congress's power to "dismantle persisting gender-based barriers" that women face in the workplace by attacking stereotypes about their domestic responsibilities, he ruled for a 6-3 majority that states could be sued for violations of the federal Family and Medical Leave Act.

In such cases, Scalia and Thomas have turned out to be more conservative than Rehnquist, more committed to resurrecting the Constitution's "original meaning," and far more dismayed about the Court's liberal-leaning approach to the culture wars.

Even back in his "Lone Ranger" days, Rehnquist never expressed the kind of fury that Scalia has exuded in dissents such as this one, in 1996: "The Court must be living in another world. Day by day, case by case, it is busy designing a Constitution for a country I do not recognize" (Board of County Commissioners v. Umbehr). Nor has Rehnquist ever sought the wholesale invalidation of liberal precedents that Thomas cheerfully advocates.

A Chief With No Followers For the most part, however, Rehnquist has voted with Scalia and Thomas, often in dissent. And the Rehnquist Court has been known less for "massing" than for deep liberal-conservative divisions and for splintering, in many cases, into three or four camps.

The paradigm of a splintered, badly written decision that fostered public confusion and disrespect for the Court was Bush v. Gore, which spurred a storm of charges that the justices had let partisan politics trump their own legal principles.

That December 12, 2000, decision handed the presidency to George W. Bush by ending the recounts ordered by the Florida Supreme Court. It also produced no fewer than six separate opinions. While seven justices agreed that the chaotic and unreliable recount process ordered by the Florida court violated equal protection, only a bare majority of five -- Rehnquist, Scalia, Thomas, O'Connor, and Kennedy -- ruled that the recounts should be ended rather than redone. They also ignored suggestions that the Court should defer to Congress, the body the Constitution empowers to decide disputed presidential elections.

The hastily prepared, unsigned majority opinion was so confusingly written that much of the country was mystified by it. And a Rehnquist concurrence, arguing that the Florida court had unconstitutionally rewritten the state Legislature's election code, won only Scalia's and Thomas's agreement. Liberal scholars almost unanimously (if not quite convincingly) accused the five more-conservative justices of cynically abandoning their usual deference to state courts because they wanted to make Bush president. A few critics even suggested that all nine justices might have voted differently had it been Bush who was seeking more recounts.

In short, regardless of whether the outcome was correct, the opinions were a mess. But in fairness, it's unclear whether anyone could have done what Rehnquist failed to do: unite more than a bare majority of the justices behind a clear and credible opinion. And, in what was widely seen as an implicit defense of the decision on pragmatic grounds, Rehnquist said in a speech less than a month after the decision that sometimes "there is a national crisis, and only you can avert it."

Other conspicuous examples of Rehnquist's inability to mass the Court were last June's decisions rejecting two sweeping Bush administration claims of wartime executive power. The first rejected Bush's claim that the president could detain and interrogate indefinitely, incommunicado, without meaningful judicial review, anyone in the world whom he brands an "enemy combatant" (Hamdi v. Rumsfeld). The second decision rejected Bush's claim that his detention and treatment of the prisoners at Guantanamo Bay was not subject to judicial review at all (Rasul v. Bush).

Surely Rehnquist, who had written a 1998 book on the history of civil liberties in wartime, must have wanted a central role in these, the biggest wartime civil-liberties cases in more than 50 years. Yet he wrote nothing. He joined O'Connor's plurality opinion in Hamdi, which produced four opinions, none for a majority, that raised more questions than they answered. And he was simply a name on Scalia's dissent in the Guantanamo case, in which Stevens wrote a majority opinion so cryptic as to mystify lower courts about what to do next.

None of this necessarily proves that Rehnquist's powers of persuasion are inferior to Warren's. Brown, in which unanimity was far more critical to the Court's credibility than in any decision since, was highly exceptional. The vast majority of the justices in recent history have been "as independent as hogs on ice," as Rehnquist once said. And it would be hard to identify many (if any) big cases in the past 50 years in which Rehnquist or any other chief justice has successfully "massed the Court" in the same way that Warren did in Brown: not by modifying his own views, but by persuading doubtful colleagues to modify theirs.

In this sense, the symbolic prominence of Rehnquist or any other chief justice is vastly out of proportion to his actual power. The chief has only one vote. That's why the liberals and conservatives preparing for the mother of all confirmation battles (sooner or later) know that the Court's future will depend much less on who becomes the next chief justice than on who comes in from the outside.

Notwithstanding media descriptions of this as a "conservative" Court, the three conservatives have been in dissent in some of the biggest culture-war cases, on issues that include abortion rights, gay rights, racial preferences, and religion. They have been unable to overrule Roe v. Wade. And they were on the losing end of the 2003 decisions that the Constitution protects homosexual sodomy (Lawrence v. Texas) and allows very large racial preferences in university admissions (Grutter v. Bollinger), as well as in the 2000 ruling against nondenominational prayers at high school football games (Santa Fe Independent School District v. Doe). The Court's four liberals win such cases whenever joined by either of the centrists, Kennedy and O'Connor.

On the other hand, the three conservatives have prevailed in ideologically charged cases when joined by the two centrists. These include a 2002 decision upholding governmental tuition vouchers for religious schools (Zelman v. Simmons-Harris); a 2000 decision upholding the Boy Scouts' First Amendment right to bar gay scoutmasters (Boy Scouts of America v. Dale); and two lines of federalism decisions breathing modest new life into a vision of states' rights that had been moribund since the 1930s.

One line of federalism decisions has curbed the powers of Congress to expose states to lawsuits seeking monetary damages. The other has curbed Congress's power over purely intrastate, noncommercial private matters. In United States v. Morrison, in 2000, for example, Rehnquist's opinion for a 5-4 majority struck down a federal law under which victims of rape, domestic violence, and other "crimes of violence motivated by gender" could file federal civil-rights lawsuits.

Rehnquist's Personal Jurisprudence The federalism decisions may be the closest thing that Rehnquist will have to a jurisprudential legacy. For more than 30 years, recalls former Rehnquist clerk Charles Cooper, a Washington lawyer prominent in conservative circles, Rehnquist has "just plugged away and plugged away and plugged away. If it's enduring, it will truly be a modest revolution."

But the future of states' rights appears more modest than revolutionary in the wake of Rehnquist's own surprising opinion in Hibbs and the 2004 decision in Tennessee v. Lane, in which O'Connor deserted the states'-rights coalition to join a 5-4 decision rejecting state immunity from lawsuits filed under a provision of the Americans With Disabilities Act.

Liberals have long sounded alarm bells that the Rehnquist Court's federalism decisions might lead to wholesale invalidation of the New Deal and the federal regulatory apparatus. This seems fanciful. But the critics appear to be on firmer ground when arguing that the Court's conservatives, by striking down democratically enacted federal laws on the basis of a highly debatable interpretation of the Constitution in the state sovereignty immunity decisions, have engaged in "conservative judicial activism." Those decisions fly in the face of the clear language of the 11th Amendment and thus (say liberals) give the lie to conservatives' pretensions to being principled practitioners of judicial restraint. Rehnquist and his allies respond by citing disputed historical evidence of what some of the Framers intended.

Federalism aside, a major theme of Rehnquist's jurisprudence has been deference to the majority -- the essence of judicial restraint -- ever since he asserted, in his 1952 memo supporting school segregation, "In the long run, it is the majority who will determine what the constitutional rights of the minority are."

Unlike Scalia and Thomas, Rehnquist does not purport to hew consistently to the "original meaning" of the Constitution or to any other overarching theory of constitutional interpretation. Although some of his dissents have been impressive in eviscerating majority opinions, he has been far more concerned with getting a majority and spelling out the result he wants than with crafting a persuasive constitutional justification for that result.

Liberal scholars have long delighted in deriding Rehnquist's opinions as unprincipled, as disingenuous in their treatment of precedent, and as "results-oriented." But over the years, so many other justices, and so many law professors, have adopted similarly slapdash constitutional reasoning that the criticism has lost much of its sting.

Doing Less Justice Rehnquist -- or, at least, the Rehnquist Court -- gets low marks from some critics on the subject of fostering consistency and clarity in the law. The main reason is that the Court has slashed the number of cases it decides.

The number of signed opinions has plunged from 147 in the 1985-86 term to 73 in the 2003-04 term. The Court now grants review in only a fraction of 1 percent of its annual flood of some 8,000 petitions for certiorari. ("Cert petitions" are requests that the Court hear and decide appeals on the merits; they include roughly 6,000 almost invariably frivolous petitions prepared by indigents.) This trend has left more conflicts among lower courts unresolved. Experts disagree on whether that is a bad thing.

"The justices inexplicably have decided not to do as much as the taxpayers pay them to do," wrote Philip A. Lacovara, a prominent lawyer who has argued 17 cases before the Court, in a statistic-laden December 2003 commentary in The American Lawyer. "This is a shockingly low-performance record.... Throughout most of its history, the Court addressed important issues of federal commercial law.... Now [it] disdains ordinary commercial law issues as unworthy of the justices' time."

But a longtime observer of the Court's work (who requests anonymity) disputes the notion that the justices are passing over lots of cases that they should review. "The Court doesn't have to decide every case about spitting on the sidewalk," this observer says. He adds that much of the drop in signed opinions since 1986 is attributable to a 1988 law abolishing the requirement that the Court hear "mandatory appeals" in certain classes of cases, most of which the justices considered a waste of their time.

The decline in signed opinions is also related to the Court's ever more cursory review of each cert petition. Brennan used to read them all personally, and other justices would at least assign a law clerk to summarize each petition. But over the past 15 years, all but Justice John Paul Stevens have joined the so-called "cert pool." This pool delegates to a single, shared clerk the duties of eight justices to evaluate each petition.

"Eight of the justices rely primarily on that single pool memorandum in deciding whether to grant review," Lacovara explained. This helps shrink the Court's docket. Twenty-something clerks may not be captivated by important but unsexy commercial or regulatory disputes. They may also err on the side of recommending denial of review, because they risk serious embarrassment if they suggest a full review of a case that the justices later decide was inconsequential.

Does the Court use the time saved by deciding fewer cases to improve its opinions in those few? No, wrote Lacovara, and many other Court-watchers would agree. Indeed, many decisions have been muddied by increasing prolixity and by the proliferation of separate concurring, dissenting, and mixed concurring-and-dissenting opinions.

How hard do the justices work, now that their caseload is smaller -- and now that the eight oldest range in age from 65 to 85?

It's hard to tell. Rehnquist, for example, reportedly spends less than eight hours a day at the Court and leaves before 4 p.m. most days -- but is said to take work home. (His wife, Nan, died in 1991.) Stevens used to spend less time at the Court than at his home in Florida -- but worked from there. The justices meet only about 53 days a year for public sessions and another 27 days for private conferences, while taking a three-month summer recess and about seven weeks of winter recesses. But they are always on call for emergency petitions, especially in capital cases. And during the winter recesses, they work on opinions, with clerks writing almost all of the first drafts.

Some justices seem to have plenty of time for extracurricular activities such as speeches, overseas conferences, and writing books. Aside from Rehnquist's four books, O'Connor has co-authored one and authored another since 2001(not to mention her forthcoming children's book), and Thomas is working on a memoir for a guaranteed $1.5 million from HarperCollins.

A Smoothly Functioning Court Rehnquist is likely to be judged a smashing success in achieving the goal that he identified in his 1986 confirmation testimony. In addition to winning his colleagues' esteem, he gets high marks for administrative skills and for judicious use of his main prerogatives, which are to lead the discussion in conferences and to decide (when in the majority) who will write the Court's opinion.

Rehnquist is ruthlessly efficient. He places great emphasis on getting things done fast -- cutting lawyers off instantly when the flashing red light shows that they have used up all their time; pushing the other justices to meet strict deadlines for submitting opinions; and pressing his three clerks even harder.

Some predecessors have allowed the private conferences, where the justices discuss and cast tentative votes on recently argued cases, to bog down in long, sometimes acrimonious debates. Not Rehnquist. He moves the discussion along quite briskly.

Too briskly, some say. The late Justice Harry Blackmun, while calling Rehnquist "a splendid administrator," once added a mild complaint that the chief justice ran the conferences "in too much of a hurry at times. He cuts down interchange between justices.... He's cut down on the jokes that Thurgood Marshall likes to tell."

And Justice Scalia, who joined the Court in 1986 and loves a good debate, complained in a 1988 speech: "To call our discussion of a case a 'conference' is really something of a misnomer. It's much more a statement of the views of each of the nine justices, after which the totals are added and the case is assigned. I don't like that." Rehnquist, on the other hand, has said publicly that detailed debates would be a waste of time because typically all nine justices have already made up their minds, and that in the past, "bad feelings" have ensued when justices were "just constantly being thrown in with people that [they] were disagreeing with."

A few complaints have also arisen that the four conspicuous gold stripes that Rehnquist has worn on each sleeve of his black robe for the past 10 years, which were at first seen as a bit of whimsy, crossed the line into grandiosity about nine years ago.

Such complaints seem of marginal importance in the greater scheme of things, however. In the Rehnquist Court, the trains run on time. The chief justice is credited with being fair and strategically smart in assigning opinions. And his severe demeanor is often leavened with a humorous touch.

As chief justice of the United States (his formal title), Rehnquist administers the entire federal judiciary. This includes presiding at meetings of its policy-making body, the Judicial Conference. Last fall, before he knew he had cancer but amid the usual media speculation about retirement, the conference passed a routine proposal by a surprisingly close vote of 14-12. "This is too exciting even to think about retiring," Rehnquist declared after counting the hands. This comment "elicited first laughter and then applause," recalls Chief Judge Douglas Ginsburg, of the U.S. Court of Appeals for the District of Columbia Circuit.

The Judgment of History Is Rehnquist a great chief justice? That depends on what the meaning of "great" is.

He has zealously guarded the Court's prerogatives in his push for judicial enforcement of states' rights against Congress, in Dickerson, in Bush v. Gore, and in some other cases. Perhaps that's part of a chief justice's job. But in the process, the Rehnquist Court has carried on the relentless expansion of judicial power that has spawned so many conservative attacks since the 1950s, including Rehnquist's own early criticisms of the Warren Court.

At the same time, the Rehnquist Court has not come close to speaking with a clear or cogent voice -- let alone with unanimity or near-unanimity -- in many of the biggest cases. But it's doubtful that any chief justice could have done much better on that score, given the independence and fractiousness of the other justices and the unheroic, polarized temper of the times.

The justices' dramatic cutbacks in the time that they (and their clerks) spend screening cert petitions, and in the number of full decisions that they issue, have made life easier for them. But such reductions have also left the law less clear than it could be and lower courts with less guidance than before Rehnquist became chief justice.

On balance, a mixed record. Perhaps, however, Rehnquist should be assessed primarily in terms of the criteria most within the chief justice's control: his own opinions and dissents; his success in winning the esteem of colleagues; his efficiency in administering the Court's business; his effectiveness in presiding over oral arguments and other public sessions; his expediting of discussion in the Court's conferences; and his assigning of opinions fairly.

Rehnquist's opinions don't draw praise from scholars as models of judicial craftsmanship, consistency, or candor. But neither did Earl Warren's. Or Warren Burger's. As to the other criteria, Rehnquist has led the Court (as he presided over the Clinton impeachment trial) with efficiency, dignity, and appropriate seriousness, punctuated by dollops of his humor. He is "a regular guy," in the words of his former clerk Charles Cooper, "in addition to being a damned genius."

 

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