After serving for more than three decades on the U.S. Supreme Court, Chief Justice William Rehnquist died on Saturday, September 3, at the age of 80, having lost his battle with thyroid cancer.  With Justice Sandra Day O’Connor’s recent announcement of her retirement, there are now two vacant seats on the Court.  Just over a day after Rehnquist’s death, President Bush announced his nomination of Judge John Roberts (whom he had formerly nominated to replace Justice O’Connor) as the next chief justice.  As the Bush White House prepares for nasty confirmation fights, pundits and scholars are reflecting on Rehnquist’s legacy.

Although the Rehnquist Court has left its imprint on criminal law, affirmative action, and a host of other areas, it will forever be associated with federalism.  Chief Justice Rehnquist’s enemies on the left accuse him of leading a constitutional revolution that curtailed the powers of Congress.  The enervated Articles of Confederation, we are told, have replaced the Constitution of 1787.

His critics on the right complain that the federalism revolution is better described as an unsuccessful skirmish.  They also take umbrage at Rehnquist’s constitutional “flexibility,” which he exhibited in Dickerson v. United States (2000), in which he affirmed that police officers must read suspects their Miranda rights.  Rehnquist had been a harsh critic of the Warren Court’s Miranda decision, but he upheld it because the warnings had “become a part of our national culture”—hardly sound justification grounded in the text and history of the Constitution.

President Nixon appointed Rehnquist to the Supreme Court in 1972.  He became a member of the “Nixon Four,” along with Justices Warren Burger, Harry Blackmun, and Lewis Powell.  Today, such a bloc would be described as “centrist.”  In the wake of the Warren Court’s jurisprudence, these justices were “conservative” and a threat to the new rules of constitutional law established in the 1950’s and 60’s.

Rehnquist had observed the beginnings of the Warren Court when he clerked for Justice Robert Jackson in the early 1950’s.  In 1957, Rehnquist wrote a scathing article for U.S. News and World Report criticizing his co-clerks for their “extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any governmental regulation of business—in short, the political philosophy now espoused by the Court under Chief Justice Warren.” 

In the months following his appointment to the Supreme Court, Rehnquist proved himself to be the most conservative of the Nixon Four and earned the “Lone Ranger” moniker.  In those early years, he often found himself alone when articulating the conservative position on various legal issues.  Though new to the Court, Rehnquist distinguished himself through well-reasoned dissenting opinions.  His dissent from Harry Blackmun’s majority opinion in Roe v. Wade (1973) has become a classic indictment of judicial activism:


The decision here to break the term of pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one . . . partakes more of judicial legislation than it does of a determination of the intent of the drafters of the 14th Amendment.  The fact that a majority of the [states] have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people to be ranked as fundamental.”



Rehnquist’s dissent in Roe was but a taste of things to come.

Three years later, Rehnquist authored the first modern Supreme Court opinion to limit Congress’s authority under the Constitution’s Commerce Clause.  In National League of Cities v. Usery (1976), the Court confronted congressional extension of the Fair Labor Standards Act’s minimum-wage and maximum-hour requirements to employees of state and local governments.  Writing for a 5-4 majority, Rehnquist held that the law would “impermissibly interfere [with] integral governmental functions” and that it would “significantly alter or displace the States’ abilities to structure employer-employee relationships.”  At base, the opinion in National League of Cities recognized the sovereignty of the states and sought to interpose to restore some balance to federal-state relations.  It would be the first shot fired in the so-called federalism revolution.

To Rehnquist’s disappointment, the controversial National League of Cities decision did not last a decade.  In Garcia v. San Antonio Metropolitan Transit Authority (1985), Justice Blackmun, who had joined Rehnquist’s opinion in National League of Cities, jumped ship and delivered a majority opinion overruling Rehnquist’s handiwork.  The Garcia majority thought National League of Cities unworkable and held that the Framers intended the states to look to the political process—not to the courts—for protection of their reserved powers.  Blackmun recognized that, with direct election of senators, the states no longer had representatives in Congress (viz., they were no longer participants in the political process).  Despite acknowledging the infirmity in his reasoning, Blackmun could not articulate an alternative option for state self-defense.

Shortly after the Garcia decision, President Reagan appointed Rehnquist chief justice of the Supreme Court.  The Senate confirmation process turned ugly with allegations of harassing black voters in Arizona in the 1960’s, mishandling a family trust, and being insensitive on various racial issues.  Weathering the attacks, Rehnquist was confirmed by a 65-33 vote.

By most accounts, Rehnquist was an efficient chief justice with exceptional organizational skills.  He quipped that he would like to be remembered as a good administrator.  Perhaps professional court watchers will remember him for these mundane matters, but the rest of us will associate Rehnquist and his Court with federalism.

The constitutional shot heard round the Beltway came in 1995 when the Court decided United States v. Lopez.  This case dealt with the constitutionality of the Gun-Free School Zones Act, which prohibited the possession of firearms near school premises.  The federal government argued that the act was a proper exercise of Congress’s power to regulate interstate commerce.  The possession of a firearm in school zones, the government contended, could affect the functioning of the American economy by hindering classroom education and thus result in an unproductive workforce.  The Rehnquist Court rejected the government’s argument, fearing that such reasoning would permit Congress to “regulate any activity that it found was related to the economic productivity of individual citizens.”  The Constitution had limits, the Court announced, and these limits were transgressed by passing a criminal statute under the guise of the Interstate Commerce Clause.

Five years later, the Court built on the Lopez foundation in United States v. Morrison (2000).  In Morrison, the Court rejected the government’s claim that crimes of violence motivated by sex affect interstate commerce so as to permit the creation of a federal, private right of action.  The regulation of such conduct, held the Court, bore no relation to economic activity and was outside Congress’s reach.

During this same period, the Rehnquist Court struck statutes imposing unfunded federal mandates on the states.  For example, in Printz v. United States (1997), the Court invalidated interim provisions of the Brady Handgun Violence Prevention Act requiring local police officers to conduct background checks on handgun purchasers.  It would be counter to our scheme of divided sovereignty, explained the majority, for Congress to command state officials to implement federal programs:

This separation of the two spheres is one of the Constitution’s structural protections of liberty.  Just as the separation and independence of the coordinate branches of the Federal Government serve to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

Such a clear expression of the Constitution’s first principles was characteristic of the Court’s federalist jurisprudence under Rehnquist.

With the Chief Justice ailing from thyroid cancer, the wheels of the federalism revolution came off in June 2006.  In a 6-3 decision in Gonzalez v. Raich, the Court considered whether Congress could prevent two critically ill women from growing and using marijuana for medicinal purposes.  Relying on precedent from the New Deal, the Court extended Congress’s power to encompass the most ordinary intrastate activities.  So long as the activity can be characterized as the production of a commodity (e.g., a tomato plant grown on an apartment balcony), Congress has the power to regulate it.  It does not matter that the tomatoes are meant only for their grower’s dinner table and that  none of the implements used in the cultivation ever traveled in interstate commerce.  With the Raich decision, the Court foreclosed the possibility that Lopez and Morrison would be extended to place strict limits on Congress’s authority.

Raich, we are told by progressive commentators, is a Thermidorian reaction to the excesses of Chief Justice Rehnquist’s federalism.  From 1995 to 2002, in its most aggressive phase, the Rehnquist Court struck all or portions of 31 statutes.  The judicial activism Rehnquist criticized in his Roe dissent, these commentators argue, became a hallmark of the Court under his leadership.  With Raich, the Court has resumed its “proper” deference to acts of Congress.  If the states believe that Congress is treading on their reserved powers, they should turn to the political process as Justice Blackmun suggested in Garcia.  The constitutional order that existed prior to National League of Cities has been restored.

Conservative commentators, on the other hand, note that, for all the hoopla around Lopez and its progeny, these opinions left the Court’s most expansive Commerce Clause precedents intact.  Justice Clarence Thomas, although he concurred in the result of Lopez, warned in 1995 that the analysis used by the Lopez majority gave Congress a general “‘police power’ over all aspects of American life.”  Hence, Raich is the end of a revolution that never really was.

The truth is somewhere in between.  Conservative critics are correct to point out that the Rehnquist Court’s decisions have done little to slow Congress’s legislation mill.  A quick scan of the U.S. Code leaves the impression that Congress is omnipotent.  There are few areas of American life that federal legislation does not touch.  Moreover, Congress can easily circumvent the supposed limitations of the Rehnquist Court’s federalism cases.  For example, the Court permits Congress to use the “spending power” of the General Welfare Clause to reach objectives falling outside the Constitution’s enumeration of powers.  Congress taxes state citizens, offers state governments these “federal funds,” and then attaches myriad conditions to the receipt of the money.  If Congress wants a state to waive its sovereign immunity from suit or to implement a federal regulation, it may condition some federal benefit or dollars on the state’s compliance with Washington’s wishes.  Viewed in this light, the Rehnquist Court’s federalism cases are largely symbolic.

We must remember, however, that these symbolic cases could prove highly instructive to future generations willing to launch a true federalism revolution.  Before National League of Cities, American lawyers were brought up on New Deal and Warren Court case law that ignored the concept of dual sovereignty.  Congress was treated like the British Parliament; it could make or unmake any law as it saw fit.

Through its federalism cases, the Rehnquist Court exposed American lawyers to a forgotten history of constitutional law—a history of a limited federal government deferring to state governments on a variety of issues.  It did not lead a federalism revolution, but the Rehnquist Court did focus attention on the forgotten first principles of the Old Republic.

Thus, it is premature to judge the success or failure of the Rehnquist Court.  Its legacy rests in the hands of future generations and their efforts to return America to a functioning federal republic.