Rehnquist's legacy scrutinized

A panel that included faculty from Notre Dame, Columbia, Yale and Princeton scrutinized the controversial tenure of former Supreme Court Chief Justice William Rehnquist at a discussion last Friday, as part of a conference on Rehnquist’s contributions to constitutional jurisprudence.

The conference examined federalism as a constitutional principle. Donald Drakeman, a visiting politics lecturer, explained that Rehnquist had “overriding focus on federalism” and states’ rights during his tenure in the Supreme Court.

Likewise, the panel addressed the former chief justice’s effects on constitutional criminal procedure as well as his impact on the interpretation of religion in the Constitution.

“A lot of people say Rehnquist turned religious law ‘upside down’ ” said Richard Garnett, law professor at Notre Dame and a former clerk for Rehnquist. “I would argue that he turned it right side up.”

Rehnquist interpreted the Establishment Clause — “Congress shall make no law respecting an establishment of religion” — in the way the Founding Fathers had meant it, as an indication of a constitutional tolerance of religion, Garnett said.

“All the Clause did was forbid something that neither [the Federalists nor anti-Federalists] wanted to happen,” the establishment of a national church, Drakeman said, adding that it left the elected branches of government to decide the issue of church and state.

Rehnquist seemed to have a greater tolerance for the presence of religion in the government because he voted to allow the display of the Ten Commandments at the Texas State Capitol as well as in favor of increasing state support for religious schools, numerous panelists said.

“Very few exemptions should be required by judges, but tons should be allowed,” Garnett said in reference to Rehnquist’s views on the Establishment Clause.

Though the audience consisted mostly of professors and scholars, a few students did attend. “[The conference] was very well organized, scheduled and thought out,” Tiernan Kane ’11.

“On the whole, [Rehnquist] had a positive effect on the Supreme Court,” he added. “He worked to bring back the Constitution.”

But, “he didn’t go far enough in certain places. I disagree with putting precedent over pure constitutional reasoning, as he seemed to have done in a few places,” Kane added.

Rehnquist’s chief accomplishments were focusing people’s attention back on issues of federalism and refocusing our attention to “the danger of judicial review to democracy,” Garnett said.

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“Despite his reputation as a kind of radical conservative, he turned out to be more incrementalist,” said Bradford Wilson, the associate director of the James Madison Program and a former research associate for Rehnquist. “He was a chief justice who was willing to forge coalitions in order to move the law in a different direction, sometimes sacrificing his own ‘purist’ positions in the process.”

“That’s what has defined our greatest chief justices,” he said.

Rehnquist served as an associate justice on the Supreme Court from 1972 to 1986, when he became chief justice and served until his death in September 2005. His tenure was the fourth longest of any chief justice.

The conference was sponsored by the James Madison Program in American Ideals and Institutions.