Was Rehnquist the worst Chief Justice in US history?

Great Debates
1

It would be hard to top Roger Taney for that, of course. The Dred Scott decision that made the Civil War inevitable secured his place in history, and illustrated what a decision motivated by solely an ideology of jurisprudence can lead to.

But there’s a case for the late William Rehnquist, too. His best noted nonelectoral opinions were the result of a pure ideology of jurisprudence as well, one that can fairly be called reactionary, and led to some evil real-world consequences as well. Timeline from today’s Boston Globe:

–April 26, 1995: Writes majority opinion striking down a federal law mandating a “gun-free zone” around public schools, in a landmark decision preserving states’ rights.

–Dec. 12, 2000: Joins four other Republican-nominated justices in Bush v. Gore ruling that stops presidential ballot recounts in Florida, making Republican George W. Bush the winner.

–June 27, 2002: Writes majority opinion declaring that an Ohio taxpayer-funded voucher program was not a violation of the separation of church and state; 96 percent of the students using vouchers in that case attended religious schools.

His pretentious addition of stripes to his robe, inspired by Gilbert and Sullivan no less, can be dismissed as a quirk of ego.

But that isn’t primarily why his place in history belongs near Taney’s. For all of the devastation his keynote decision led to, it still fell within the framework of the Constitution and the ideals of democracy. Rehnquist’s record doesn’t meet that standard. His mark on history is twofold:

  • His near-gleeful presiding over the farcical impeachment “trial” of President Clinton, a political and personal vendetta wrapped in Constitutional clothing, despite the intent of the process rather than because of it.

  • His ruling in Bush v. Gore (a case the court was by no means required to take), preventing the performance of vote-counting, the basic process of democracy and putting his own preferred candidate into office.

If you’re counting, those are attempts to overturn 3 consecutive elections, finally succeeding the third time. His legacy is that he attempted to undermine democracy itself. Is there any way to whitewash that?

2

Mercy on us, Elvis old buddy, at least let them get the guy underground first, huh? I mean, this is a very interesting discussion for a debate and I look forward to reading people’s opinions on it, but it just seems weird to, um, dissect the man’s record before the rigor mortis has even passed off.

3

So, on the one hand, we have a war that killed a half million people, and on the other we have a failed impeachment and a questionable decision regarding an election that was too close to call.

Yep, it’s a toss-up.

4

The Gilbert & Sullivan stripes were a sign that the man had a sense of humor- something no one is likely to accuse Elvis of.

5

Funny…I consider the three items cited by Elvis to be things in Rehnquist’s favor, not the other way around. :smiley:

6

Well, at least he wasn’t a sleazy male stripper like the late Earl Warren.

[sub]Sorry, couldn’t resist[/sub]

7

John Rutledge? Only Chief Justice rejected by the Senate. He served during a recess appointment in 1795. Once the Senate got back in session, they rejected him. He was a bit unbalanced mentally.

I don’t think many people are looking back at the careers of Melville Fuller or Fred Vinson with a lot of admiration.

8

Taney, without a doubt. And it’s not even close to my eyes.

Where will the big R rank? Let history judge.

Remember, everyone got all hot and bothered about the ‘appointment’ of Rutherford B Hayes to the Presidency 120 years ago. Now, before the 2000 election I’d wager not 1 American in 1000 knew about that episode.

So the whole Bush v Gore thing is still looming large but in 100 years who knows how it’ll be considered? No one.

9

The Constitution requires the Chief Justice preside over impeachment trials. He had to be there whether he agreed with it or not.

10

Ummm . . . what?
Roger Taney freed the slaves he inherited and called slavery “a blot on our national character.” When the Civil Way broke out, he was one of the few Southerners that did not resign from the Federal government.

The bad rap that Taney has gotten stems from the situation slavery was facing at the time. Slavery was seen as a state soverignty issue (see the Corwin Amendment), but what happens when a slave crosses state lines? Then it is a Federal issue. The issue in these cases (*Prigg v. Pennsylvania * and Moore v. Illinois) as Taney saw it is that a slave was property and that a person does not lose their property simply based on changing states.

In regards to the Dred Scott decision, Taney upheld the previous property rights decisions but in ruling that Dred Scott had no standing before the court, his biggest error was in misinterpreting what the framers of the Constitution held to be the rights of blacks viz. no rights to US citizenship. Incidently, it set up a distinction between state citizenship and federal citizenship and stated that giving someone state citizenship does not necessarily make someone a Federal citizen. In today terms, it would be if California makes all illegal immigrants citizens of California they do not automatically become US citizens.

Also remember that the ruling was 7-2 (well 6.5 - 2.5; read Nelson’s concurrence) so clearly there was some agreement with Taney’s position. In fact you should look at President Buchanan’s role in all of this and his communication with Justices Catron and Grier. This decision was seen as a way to settle the slavery issue for all time. IMHO, Taney screwed himself over by writing the decision himself as his perogative rather than assigning it to an associate justice.

Also remember that Taney was one of the few to stand up to Lincoln’s illegal suspension of the writ of habeas corpus (Ex parte Merryman)

11

Interestingly we never hear about the Washington Supreme Court doing the opposite to get Gregoire elected; basically saying “screw state law, just keep recounting until enough votes are manufactured to get the Democrat elected.”

I think part of the Rehnquist legacy has got to be the fact that despite pressure to overturn Roe v. Wade, he chose to put controls in rather than eliminating abortion. In other words, he kept to his convictions as written in his dissent even thirty years later despite the pressures involved in such a contraversial issue.

12

From http://en.wikipedia.org/wiki/Christine_Gregoire#The_disputed_election:

What did the Supreme Court do in any of this that was improper?

13

SaintCad, where did you get the idea that Washington was “manufacturing” votes, rather than just *counting * them? You do see the difference, I hope.

You’re correct in pointing out that there were other justices in support of each of the decisions we’ve listed, but the topic is Chief Justices.

blalron, yes, I know he had to be there, but be there he was, and with a huge grin on his face the whole time, too.

Jonathan Chance, you’re right that few Americans would care about the subject, but among those of us who do, yes, there’s little disagreement that the 1876 election was just about the most shameful thing we’ve ever done (which is another thread).

BobT, Rutledge, Fuller, and Vinson are known for their obscurity, which they achieved by not screwing us up all that badly. Can a Rehnquist biographer say the same?

cheesesteak, it’s a matter supporting a legal principle under the framework of democracy vs. undermining that very democracy. You’re free to think Taney is the worst, and I generally agree, but where does that leave Rehnquist in your summation?

astorian, what forum do you think you’re in?

Kimstu, the time is ripe, ain’t it?

14

Jeffrey Rosen, in April’s Atlantic, makes an interesting case that Rehnquist should be considered a great chief justice.

I’m not totally on board with Rosen on many points. But he is especially convincing in this article in demonstrating that Rehnquist was a remarkable good court administrator, and quite good also in determining judicial consensus. This was a crucial skill, put to good use over the years.

Rehnquist wasn’t the worst chief justice, not by a long shot. He was actually quite a good one, as even many liberals will attest.

15

Taney went a lot farther than that and certainly farther than he had to. He could have just said that a slave is property and that no state can deprive a citizen of his property without compensation. Scott would have been screwed and slavery would have been upheld but the decision wouldn’t have been controversial.

But Taney picked the ball up and ran with it. He said that Scott couldn’t be free because that would imply he had the right to submit a lawsuit asking for his freedom. Taney said that Scott didn’t have the right to submit a lawsuit (another point that he could have stopped at) but he also went on to say Scott had no rights whatsoever. Not only because he was a slave (which was the question before the court and which therefore shouldn’t have been part of the basis for the decision) but also because Scott was black and no black person, slave or manumitted or freeborn, could ever have any rights whatsoever and any law which said otherwise was unconstitutional (which was not the issue before the court and for which there was no constitutional basis). And any state which tried to pass such a law was going to be overruled by the federal court system (which was a kick in the crotch to states rights). And then Taney topped all this by invoking the principle of judicial review for the first time in American history to overturn an act of Congress which was the beginning of the type of judicial activism which so many people deplore today.

16

They threw out the state laws designating what ballots could be recounted King County even though it meant overruling themselves. In addition, there was a serious question of ballot security. King County found the absentee ballots sitting in a box in a warehouse on three separate occasions if I remember correctly. The WSSC also let the Democratic Party track down the voters that had cast provisional votes. Although the Republicans were afforded the same right (much later), it seems strange that this was not left up to the canvassing board.

But the worst part was that none of the other counties were allowed the same option of recounting absentee ballots where the signature was not on file. King County is one of the most liberal counties in the state and it is for *that * reason that the Supreme Court’s actions were improper i.e. changing state law for recounts in selected counties.

Not to say that this was all WSSC’s fault. State law (after Florida 2000) allows the canvassing board to determine the voter’s intent, but it also allows the board to change the ballot (fill in the circle, punch out the chad, whatever makes it clearer to discern the “voter’s intent”). Manipulating the ballots make it difficult to show fraud in counties. The Republicans charged (but never proved) that the Democratic canvassing board of King County was filling in the ovals for Gregoire on ballots where the person never voted for governor.

Basic moral of the story, whether it’s Florida 2000, Washington 2004, or Your State 2008, modern day elections are truly a cluster-fuck.

But back on topic (too late). The Rehnquist court made a ruling that gave the election to a Republican. The WSSC made a ruling that gave the election to a Democrat. As long as you have elections where people don’t have to follow directions to have their vote count, your going to have judges decide who wins elections. You can’t blame Rehnquist for that. Blame the morons that can’t punch a hole in a piece of paper with a sharp metal poker or fill in a circle with a super-soft lead pencil.

17

I think he did a fine job. I don’t think the items you list undermine democracy or the constitution at all. Bush v Gore was a screwup from the very beginning, with Florida having a lousy election process, to Gore asking for recounts in (surprise!) heavily Democratic counties. There was more than enough talk of chads being hung or damaged or altered to make me think that a recount wasn’t going to get us any closer to “reality” than we already were.

You may think the impeachment was crap, I think that Clinton clearly gave false information in a deposition for a lawsuit against him. I don’t know about you, but if I sue someone, I don’t want him to be allowed to lie in his deposition with just a wink and a nod. Anyway, it wasn’t his choice to preside over it, it was his job!

I think it is ridiculous to even put the two of these guys in the same sentence. Your perspective on matters republican are so warped that you think they are some of the most evil people in history. Seriously, if they were, we’d ALL know it.

18

Perhaps you could list the names of SC judges who ~havent~ used pure ideology of jurisprudence? Or is his crime the fact that the ideology he was driven by wasnt the one you happen to share?

I can agree that the election was a crock. One decision I disagree with does not an evil man make. But if youre equating the pres election decision with the Dred Scott decision, as if they were somehow equally disastrous, then you yourself are making judgements purely on ideological grounds, which kind of makes it absurd of you to talk smack of others doing so.

19

Rationalization. You bought into the Bush-Fox campaign’s political effort, simultaneous with the legal one, to discredit the democratic process and support the judicial one instead. The “talk of chads” etc. was a central part of that. But the counting of the votes, all the votes, is the province of the people, not the courts.

And that puts the Republic in grave danger from permitting him to stay in office until the completion of his term, how exactly? Was Congress acting on behalf of the people’s will to fire the man they had hired, twice? You know better. Impeachment is *not * a legal process, a special sort of trial for defendants who happen to be officeholders. But you bought into that GOP political effort to put *that * veneer of legitimacy on it, too.

If you can support that statement at all, perhaps you’d better start. So far, all you’ve shown is that, no matter the issue, you’ll buy into whatever partisan spin the RNC and Fox TV put on it.
saintcad, no support for your charge of “manufacturing votes”, huh?
voodoochile, the Supreme Court is just as much a political branch of the government as the executive and legislative, no matter how much you may hear pious handwringing about its role simply being to interpret the law. Everything they rule is “making law” and *has * to be guided by respect for outcomes in the real world as well as precedent and the Constitution. My objection to Rehnquist is that he was often guided by a narrow ideology based solely in a particular hermetically-sealed, academic, and above-all *reactionary * philosophy of government’s proper place, not by recognition of what his opinions would really lead to for real people in the real world outside the bubble. He was, of course, willing to accept the post-Civil-War world’s acceptance of nationalism vs. federalism when his preference for President looked to be in danger of losing, but is that to his credit when assessing his philosophy?

Yes, I don’t think you can point to many other CJ’s who have been similarly isolated from reality.

20

Absolutely the correct decision. The Constitution does not give Congress the power to legislate gun-free zones around schools. ElvisL1ves wants us to ask, “Is it a good idea?” and if the answer is yes, then we should conclude it’s a federal power. Bah. This is a point in his favor.

This one’s neutral in my book. The Equal Protection Clause was never meant to apply like this. The decision, in a vacuum, is wrong. However, the EP clause has been twisted into meaning all sorts of things by prior binding precedent. Given the existence of those decisions, Bush v. Gore is correct.

Absolutely right on the money.

He had nothing to do with the voting of the impeachment articles. He played a constitutionally-required role.

See above. This is what happens when you start adding phantom meanings to the Constitution… you can’t just limit the results to what you want them to be.