First Among Equals by Kenneth W. Starr Read Free Book Online Page A

the Office of Legal Counsel of the Justice Department, now, as chief justice of the United States, authored an anti-executive power opinion, and for an overwhelming seven-vote majority. (Justice Anthony Kennedy, then new to the Court after the unsuccessful nominations first of Judge Bork and then Judge Douglas Ginsburg, to succeed the retiring Lewis Powell, Jr., did not participate.) Only newcomer Antonin Scalia, who had likewise headed OLC, was in dissent. A passionate and fervent dissent it was, eminently quotable as so many Scalia opinions have proved, but Scalia was all alone. No longer was Chief Justice Rehnquist the Lone Ranger. To the contrary, the Court's liberals and centrists were rallying under his leadership.
    This enormous setback for conservatives in 1988 was then hugely compounded years later in 2000 as the chief authored the opinion reembracing one of the icons of the Warren Court era, the
Miranda
decision (discussed in detail in Chapter Eleven). Reagan administration alumni watched in disbelief as Rehnquist wrote, in a pithy opinion, that
Miranda
would stand. The contrast between the early Rehnquist (the associate justice) and the later Rehnquist (the chief justice) was vivid. As associate justice—on assignment from Chief Justice Burger—Rehnquist had authored a pivotal opinion (which won majority support on the Court in 1974) that the
Miranda
principle was not a core constitutional holding. But as chief, he embraced the idea that
Miranda
was a constitutional holding that could not be amended by Congress (much less overruled).
    This contrast between the early and the later Rehnquist duly noted, however, it is emphatically not the case that the chief justice experienced the sort of complete philosophical transformation seen in the cases of Justice Harry Blackmun and, more recently, Justice David Souter. Nixon appointee Blackmun wound up voting consistently with the most liberal members of the Court. So has Bush appointee Souter. But not Rehnquist. The chief has been, above all, at the vanguard of restoring, as he sees it, the appropriate balance in the constitutional structure between the federal government and the states. This—the concept of federalism, aimed at keeping Congress within its enumerated powers under the Constitution—has been Rehnquist's signature issue. Rehnquist has been to federalism what his predecessor, Chief Justice Burger, was to separation of powers. As chief justice, Rehnquist has been a tireless and effective defender of what he sees as the rightful domain of the states.
    On the social-issues front as well, the Court's widely discussed opinion in June 2000 in the Boy Scouts case — whether the Boy Scouts could exclude a gay-rights activist as an assistant scoutmaster—instructively reminded observers of the chief justice's instinctive conservatism. On social issues, the chief is reliably traditional. He will not use judicial power to alter long-standing social institutions.
    This, then, appeared to be the chief's guiding philosophy: No upsetting the apple cart. That, it seems, has been at the core of the chief's mission over the course of his fifteen years in the center seat. No wild gyrations if he can help it, which in its own way is a “conservative” approach even if it does not necessarily lead to “conservative results.” To be sure, there remains a flicker of the flame that burned brightly during his days as a franchise junior member of the Court, the justice on whom Chief Justice Burger so heavily relied. In particular, Chief Justice Rehnquist remains quite eager to cure certain pivotal excesses (as he sees it) in the law, most particularly the unspeakably unacceptable
Roe v. Wade
and church-state decisions infected with an anti-religious freedom strain.
    Nonetheless, when taken in the entirety of his work over the past fifteen years, Rehnquist as chief justice appears willing to accept much of modern-day constitutional law. He has, in surprising ways, been willing