The myth behind Chief Justice Rehnquist and the Supreme Court

When I was in elementary school, I heard about the likes of Paul Bunyan, Johnny Appleseed, and Pecos Bill almost as often as America’s non-mythical (but highly mythologized) founding fathers. Of course, these legends of the American frontier would be nothing without the tall tales that made them legendary. So as America’s frontiers have succumbed to suburban sprawl and average men have come to accomplish the extraordinary, it’s no wonder that the Johnny Appleseeds of the world have been replaced by Harry Potters as the heroes of children everywhere.

That does not mean America has lost its folk heroes or the tall tales they occupied. In the wild, untamed frontier of American politics, it’s the Supreme Court that seems to be home to our modern myths. In fact, it’s home to the greatest myth of them all: the transformation of the Supreme Court into a bastion of conservatism. The requisite hatchet slinging revolutionary? Chief Justice William Rehnquist.

Shortly after Rehnquist’s death on September 3rd, the media rushed to portray him as one of the major architect’s of the slow, but steady, swing to the right in America’s culture and politics. As The Economist noted: “You could argue…that in his 33 years on the Supreme Court Justice Rehnquist came as close as anyone to changing the prevailing climate in the United States.” Across the board, similar sentiments echoed, as talking heads everywhere identified Rehnquist as executor of the Conservative manifest destiny.

The media got one thing right – the stone-faced lawyer from Shorewood Wisconsin was certainly a conservative, both in politics and temperament. A revolutionary, however, he was not.

Undeniably, Mr. Rehnquist’s Supreme Court has been significantly less controversial than the radically liberal Warren/Brennan Court under which Rehnquist first donned his robes. But to argue, as many pundits have, that Rehnquist’s Court has somehow been the conservative antithesis to the Court of the 60’s and 70’s is simply nonsense. If anything, the Court under Rehnquist has only solidified the Warren-era (mis)interpretation of the Constitution, often under the blessing of the Chief Justice himself.

This tendency is transparent through even the Rehnquist Court’s most notable doctrinal imprint: resurrection of federalism and the Commerce Clause. The Court’s 1995 decision to strike down the Gun-Free School-Zones Act was the first time since 1937 that the Court had deemed a federal law in violation of the Commerce Clause. But while the Court’s 5-4 decision was a strong symbolic victory for federalism advocates, the decision did little to curb the growth of the Federal regulatory state. Indeed, despite the urgings of Justice Thomas for the Court to reconsider New Deal-era decisions that ate into prohibitions on federal economic regulation, the decision signed by Rehnquist specifically noted that the Court did not intend to strike down 60 years of unbridled federal regulatory power.

Moreover, Rehnquist’s dedication to federalism did not always beget conservative results. Rehnquist’s penchant for states’ rights often led to liberal policy situations, such as in his support for medical marijuana in Gonzales v. Raich. Rehnquist may have held the image of a conservative fire-breather, but his decisions were hardly the dogmatic credos of the likes of Scalia and Thomas.

Perhaps even more contrary to the image of Rehnquist as a great conservative catalyst is the reality that the Court remains, despite the attempts of Republican Presidents, in relatively liberal hands. Rehnquist always wished to be a consensus builder, much in the way Brennan had been during the Warren and Burger Courts, but Rehnquist’s Court was continually unable to reach a conservative consensus, or any consensus whatsoever, on most hot-button issues. Although seven of the nine justices on the current Court had been appointed by Republican presidents, two of those appointees, Stevens and Souter, have regularly sided with the Democratic appointees. Likewise, Justices O’Connor and Kennedy have hardly epitomized American conservatism. Issues from Miranda Rights to abortion were confirmed during Rehnquist’s tenure as Chief Justice. The Rehnquist Court may have had all the bark of a conservative pit bull, but for all its noise, it packed only a poodle’s bite.

And maybe that’s why Rehnquist may go down as one of America’s greatest Chief Justices. Like the folk heroes of past, Rehnquist’s legend far exceeds his actual deeds. William Rehnquist may not have moved the Court – and America – as far to the right as he would have liked, but for a man who always longed to build consensus, he would probably be content knowing that most of America believes, rightly or wrongly, that he helped catalyze the rebirth of American conservatism.