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Conservatism, judicial restraint mark Rehnquist legacy

By Bill Mears
CNN Washington Bureau




Supreme Court
William Rehnquist

WASHINGTON (CNN) -- Born in Wisconsin and schooled at Stanford, the man who set up his early legal practice in the land of Barry Goldwater will be remembered as much for his personal touch on the workings of the Supreme Court as the conservative legal path he charted.

William Hubbs Rehnquist's service on the nation's highest court during seven presidencies leaves a judicial legacy that many legal scholars say rivals that of predecessors John Marshall in the 19th century and Earl Warren in the 20th century.

Rehnquist accomplished this by leading what has been called a quiet revolution developed over many years. Supreme Court scholar David Yalof credits Rehnquist for ably moving the court in a conservative, consistent direction.

"He did it by choosing carefully the doctrine of judicial restraint," says Yalof, a constitutional law professor at the University of Connecticut. "You see it in the cases the court hears, and showing the way with his brand of leadership."

Supporter of states' rights

Supreme Court analysts say Rehnquist's judicial legacy is wide-ranging. In the area of federalism, he consistently sided with states that were sued over violating congressional law, including age discrimination, the Americans with Disabilities Act and the Violence Against Women Act. He guided the court to spare states some impositions of the Religious Freedom Restoration Act and the Brady gun control laws.

In the 1995 gun control case -- U.S. v. Lopez -- the high court reversed a federal law banning guns near local schools. Writing the majority opinion, Rehnquist said the Supreme Court had traditionally deferred to Congress, but said its power this time needed to be curbed, or else "there will never be a distinction between what is truly national and what is truly local."

Rehnquist also showed his flexibility in order to have the high court speak forcefully as one in important cases.

In May 2003 the Supreme Court offered a rare rebuke against states rights. In the case of Nevada Dept. of Human Resources v. Hibbs, a state worker was given the right to sue Nevada officials under the federal Family and Medical Leave Act, for denying him time to care for his ailing wife. Rehnquist sided with the majority, departing from his fellow conservatives on the court and agreeing that Congress had the right to address a long, established record of sex discrimination against women and men in the workplace.

Part of Rehnquist's strategy on that case and others was to be practical, offering a perk the chief justice enjoys.

"By being on the winning side, he's able to write the majority opinion," says Edward Lazarus, author of "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court," a book on the court's inner workings. "And he's able to narrow it just enough to allow some of his views on the larger issue. It's a clever, long-term view of the world."

Rehnquist also voted in support of homosexual rights and free speech, although he opposed the court's June 2003 decision to strike down a Texas state law banning private consensual sex between adults of the same sex and to reverse a previous ruling that upheld state sodomy laws.

But Rehnquist has suffered significant judicial defeats. Among his most notable dissents:

  • Roe v. Wade (1973), which based a woman's right to an abortion on the right to privacy.
  • United Steel Workers v. Weber (1979), where a white man sued his employer for reverse discrimination. The majority of the Supreme Court found the discrimination against whites did not violate the "spirit" of Title VII of the Civil Rights Act, and thereby was lawful.
  • Advocate of respectful debate

    A subtler legacy Rehnquist leaves is that of an administrator, observers say.

    Having already sat on the Supreme Court for 14 years, Rehnquist quickly matured in the role of chief justice when he took that seat in 1986. He cut the number of cases the court agreed to hear, streamlined the conferences and sought clearer, more reasoned opinions.

    A Supreme Court chief justice has power both explicit and implied. The chief justice leads the closed-door conferences where justices discuss and vote on cases; assigns who writes the majority rulings; manages the docket; controls the open court arguments; and supervises the 300 or so court employees, including clerks, secretaries, police and support staff.

    Justice Oliver Wendell Holmes once described Supreme Court deliberations as "nine scorpions in a bottle," where the trick was to keep them from stinging each other. But Jay Jorgensen, a former clerk for the chief justice, says it has been the little things Rehnquist did in the insular world of the court that built personal trust, loyalty and respect among justices often sharply divided ideologically.

    "He set up a system during conferences where every justice, one by one, in order of seniority, is allowed to weigh in on a case," Jorgensen said. "There is no free-for-all debate. The chief justice does not allow bickering. He shuts it down."

    Still, legal scholars agree Rehnquist's legacy has some holes. Despite the court chipping away slightly at the 1973 Roe v. Wade ruling, the right to an abortion remains the law of the land.

    "On affirmative action and Miranda rights, among other things, Rehnquist hasn't gotten everything he wanted," said Tom Goldstein, a partner in a Washington, D.C.-based law firm that only handles Supreme Court cases.

    "Across the board there are disappointments. The stakes remain high, there are still many 5-4 votes, but he has been successful keeping the individual battles from turning into larger wars."

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