Chief justice shaped high court conservatism

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON — Chief Justice William Rehnquist, who died on Saturday evening at the age of 80, steered American jurisprudence in a fundamentally different direction from the liberal court of the 1960s headed by Earl Warren.

Rehnquist served on the court for 33 years, the last 19 as chief justice. Led by Rehnquist, the justices breathed life into the previously moribund Tenth and Eleventh Amendments to the Constitution, which safeguard the powers of the states and limit the reach of Congress and federal agencies.

At age 47, in October 1971, Rehnquist was nominated to the court by President Nixon, and was sworn in on Jan. 7, 1972. President Reagan elevated Rehnquist to chief justice in 1986.

The court announced in October of 2004 that Rehnquist was being treated for thyroid cancer, and as recently as July he insisted he would continue with his duties unless his health prevented it.

During his tenure, Rehnquist presided over the impeachment trial of President Clinton in 1999. He was part of the the five-justice majority that ruled in favor of Republican candidate George W. Bush in the disputed 2000 presidential election.

With the death of the chief justice, President Bush will have the opportunity to make a second appointment to the Supreme Court. Earlier this summer, the president nominated Judge John Roberts to replace Justice Sandra Day O'Connor, who announced her retirement. The Roberts confirmation hearings, before the Senate Judiciary Committee, are scheduled to begin on Tuesday.

Dissenter becomes leader
"His story could be told as someone who started out as an isolated dissenter who ultimately became the conventional wisdom for the majority of the court," said Sanford Levinson, professor of constitutional law at the University of Texas Law School, in an interview with MSNBC.com conducted before Rehnquist's death.

"He really does — along with (Justice Sandra Day) O'Connor — have a certain contempt for Congress," Levinson added. "He wants to protect the vulnerable states against a rampaging Congress. He is viscerally committed to the goodness of states."

According to Pepperdine University law professor Douglas Kmiec, before Rehnquist went to the court, "law students didn't know about or study the Eleventh Amendment," which imposes limits on suits against state governments.

"Rehnquist has been enormously influential in curbing, if not reversing, the Court's pro-criminal defendant rulings of the 1960s, in establishing state sovereignty decisions, and in questioning the scope of Congress's enumerated powers, for example, invalidating substantial portions of the 1994 Violence Against Women Act," said Dennis Hutchinson, a law professor at the University of Chicago Law School.

Landmark Commerce Clause case
Rehnquist's most important decisions came in 1995 in a case called United States v. Lopez and in a 2000 decision, Morrison v. United States.

Writing for the court in the Lopez case, Rehnquist said Congress could not use the Constitution's Commerce Clause — the basis of its power to regulate interstate commerce — to justify a law which made it a federal offense to possess a firearm within 1,000 feet of a school.

The Lopez decision reversed a trend stretching back to the 1930's in which the Court had allowed Congress ever greater leeway in stretching the Commerce Clause to justify new federal powers.

Defending the law, Clinton administration lawyers contended that the presence of firearms near schools posed a threat to teaching, which in turn resulted in a less productive work force. And that in turn jeopardized the American economy, they contended.

Rehnquist found this chain of reasoning far-fetched.

"To uphold the Government's contentions here, we would have to pile inference upon inference" and thus "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States," Rehnquist wrote.

The gun law, he said, was in reality "a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms.... The possession of a gun in a local school zone is in no sense an economic activity that might... substantially affect any sort of interstate commerce."

Similarly in the Morrison decision, Rehnquist and four other justices said that Congress had exceeded its powers under the Commerce Clause when it created a federal right to sue in cases involving "a crime of violence motivated by gender."

The alleged rape victim in that case could seek redress in state courts, but not in federal court, Rehnquist and the majority said.

Last June, Rehnquist's crusade for a restrictive reading of the Commerce Clause suffered a setback in a medical marijuana case, Gonzales v. Raich.

The majority, led by Justice John Paul Stevens, held that the federal government did have the power to prosecute those who grow marijuana even if they grow and use it entirely within a state. California had passed a law in 1996 allowing ill people to cultivate and use marijuana.

The growing of a commodity meant for home consumption has a substantial effect on the supply and demand for that commodity nationwide, Stevens reasoned. Therefore California marijuana growers were liable under federal law.

Rehnquist joined Justice Sandra Day O'Connor in dissenting from the court's ruling.

O'Connor argued that the principles which Rehnquist had set forth in the Lopez and Morrison decisions should prevail: the Constitution gives the federal government limited powers, not vast "police power" over virtually all activities within each state.

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