Excerpts from opinions by Chief Justice William H. Rehnquist, who died late Saturday.
From his dissent in the 1973 Roe vs. Wade decision, which legalized abortion:
The Court’s opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. I have difficulty in concluding, as the Court does, that the right of “privacy” is involved in this case. A transaction resulting in an operation such as this is not “private” in the ordinary usage of that word. Nor is the “privacy” that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution. ... The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation. ... Even today, when society’s views on abortion are changing, the very existence of the debate is evidence that the “right” to an abortion is not so universally accepted as the appellant would have us believe.
From Rostker vs. Goldberg in 1981, in upholding Congress’ decision to bar women from registering to be drafted into the military:
The existence of the combat restrictions clearly indicates the basis for Congress’ decision to exempt women from registration. The purpose of registration was to prepare for a draft of combat troops. Since women are excluded from combat, Congress concluded that they would not be needed in the event of a draft, and therefore decided not to register them.
Congress’ decision to authorize the registration of only men, therefore, does not violate the (Fifth Amendment’s) Due-Process Clause. The exemption of women from registration is not only sufficiently but closely related to Congress’ purpose in authorizing registration.
From Cruzan vs. Director, Missouri Department of Health in 1990, the first ruling in a “right-to-die” case:
We ... consider the question whether Cruzan has a right under the United States Constitution which would require the hospital to withdraw life-sustaining treatment from her.
At common law, even the touching of one person by another without consent and without legal justification was a battery. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.
We assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.
Not all incompetent patients will have loved ones available to serve as surrogate decision-makers. A state is entitled to guard against potential abuses ... where a guardian seeks to discontinue nutrition and hydration of a person diagnosed to be in a persistent vegetative state. Missouri has permissibly sought to advance these interests through the adoption of a “clear and convincing” standard of proof to govern such proceedings.
From Payne vs. Tennessee in 1991, which declared that juries in death penalty cases may take into account the victim’s character and the suffering of the victim’s relatives:
In this case we reconsider our holdings (in 1987 and 1989) that the Eighth Amendment bars the admission of victim impact evidence during the penalty phase of a capital trial.
We are now of the view that a state may properly conclude that for the jury to assess meaningfully the defendant’s moral culpability and blameworthiness, it should have before it at the sentencing phase evidence of the specific harm caused by the defendant.
The state has a legitimate interest in counteracting the mitigating evidence which the defendant is entitled to put in, by reminding the sentencer that just as the murderer should be considered as an individual, so too the victim is an individual whose death represents a unique loss to society and in particular to his family.
From United States vs. Lopez in 1995, which overturned a federal law that banned possession of a gun within 1,000 feet of a school, on grounds that Congress lacked the authority to enact it:
In the Gun Free School Zones Act of 1990, Congress made it a federal offense “for any individual knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone.” The act neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce. We hold that the act exceeds the authority of Congress “[t]o regulate commerce ... among the several states ....”
From his concurring opinion in Bush vs. Gore in 2000:
In a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court’s textual analysis shows. ...The remedy prescribed by the Supreme Court of Florida cannot be deemed an “appropriate” one as of December 8. It significantly departed from the statutory framework in place on November 7, and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date.
From Zelman vs. Simmons-Harris in 2002, which found that religiously affiliated schools may participate in taxpayer-funded tuition voucher programs:
The state of Ohio has established a pilot program designed to provide educational choices to families with children who reside in the Cleveland City School District. The question presented is whether this program offends the Establishment Clause. ...The Establishment Clause ... prevents a State from enacting laws that have the “purpose” or “effect” of advancing or inhibiting religion. ...(T)he Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.
From 1988 Morrison v. Olson, which upheld the Independent Counsel Act:
We do not think that the Act “impermissibly undermine[s]” the powers of the Executive Branch, or “disrupts the proper balance between the coordinate branches [by] prevent[ing] the Executive Branch from accomplishing its constitutionally assigned functions.” It is undeniable that the Act reduces the amount of control or supervision that the Attorney General and, through him, the President exercises over the investigation and prosecution of a certain class of alleged criminal activity.
Nonetheless, the Act does give the Attorney General several means of supervising or controlling the prosecutorial powers that may be wielded by an independent counsel. Most importantly, the Attorney General retains the power to remove the counsel for “good cause,” a power that we have already concluded provides the Executive with substantial ability to ensure that the laws are “faithfully executed” by an independent counsel ....
From his 1989 dissent Texas v. Johnson, which struck down laws barring flag burning:
In holding this Texas statute unconstitutional, the Court ignores Justice Holmes’ familiar aphorism that “a page of history is worth a volume of logic.” For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here. ...
The flag is not simply another “idea” or “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.
From 2002 dissent in Atkins v. Virginia, in which the court barred execution of the mentally retarded as “cruel and unusual” punishment:
I write ... to call attention to the defects in the Court’s decision to place weight on foreign laws, the views of professional and religious organizations, and opinion polls in reaching its conclusion. The Court’s suggestion that these sources are relevant to the constitutional question finds little support in our precedents and, in my view, is antithetical to considerations of federalism, which instruct that any “permanent prohibition upon all units of democratic government must [be apparent] in the operative acts (laws and the application of laws) that the people have approved.” The Courts uncritical acceptance of the opinion poll data brought to our attention, moreover, warrants additional comment, because we lack sufficient information to conclude that the surveys were conducted in accordance with generally accepted scientific principles. ...
From 2003 Gratz v. Bollinger, in which the court held the University of Michigan’s affirmative action policy in undergraduate admissions went too far because it assigned extra points to applicants with minority status:
Clearly, the LSA’s system does not offer applicants the individualized selection process ..... Instead of considering how the differing backgrounds, experiences, and characteristics of students A, B, and C might benefit the University, admissions counselors reviewing LSA applications would simply award both A and B 20 points because their applications indicate that they are African-American, and student C would receive up to 5 points for his “extraordinary talent.” ...
Nothing in Justice Powell’s opinion in Bakke signaled that a university may employ whatever means it desires to achieve the stated goal of diversity without regard to the limits imposed by our strict scrutiny analysis. We conclude, therefore, that because the University’s use of race in its current freshman admissions policy is not narrowly tailored to achieve respondents’ asserted compelling interest in diversity, the admissions policy violates the Equal Protection Clause of the Fourteenth Amendment.
From Rumsfeld vs. Padilla, a 2004 ruling that found terror suspect Jose Padilla improperly filed his appeal in New York, rather than in Charleston, S.C., where Padilla was being held:
Whenever a ... habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement. This rule, derived from the terms of the habeas statute, serves the important purpose of preventing forum shopping by habeas petitioners. Without it, a prisoner could name a high-level supervisory official as respondent and then sue that person wherever he is amenable to long-arm jurisdiction. The result would be rampant forum shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 137 years ago.
From an opinion concurring in part and dissenting in part in the 2004 Elk Grove Unified School District vs. Newdow, involving the Pledge of Allegiance:
The court today erects a novel prudential standing principle in order to avoid reaching the merits of the constitutional claim. I dissent from that ruling.
On the merits, I conclude that the Elk Grove Unified School District policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words ’under God,’ does not violate the Establishment Clause of the First Amendment ... The phrase ’under God’ in the pledge seems, as a historical matter, to sum up the attitude of the nation’s leaders, and to manifest itself in many of our public observances. Examples of patriotic invocations of God and official acknowledgments of religion’s role in our nation’s history abound.
From his plurality opinion in the 2005 Van Orden v. Perry, which upheld a 6-foot Ten Commandments monument on the grounds of the Texas State Capitol:
Our opinions, like our building, have recognized the role the Decalogue plays in America’s heritage. The Executive and Legislative Branches have also acknowledged the historical role of the Ten Commandments. These displays and recognitions of the Ten Commandments bespeak the rich American tradition of religious acknowledgments.
Of course, the Ten Commandments are religious — they were so viewed at their inception and so remain. The monument, therefore, has religious significance. ...Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.
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