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Chief justice shaped high court conservatism

William Rehnquist, the chief justice of the Supreme Court 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.
Chief Justice William Rehnquist, in a 1993 photo, served on the Supreme Court since 1972. Marcy Nighswander / AP file
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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 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.

Foe of racial preferences
Rehnquist was a scathing critic of racial preference programs.

In a dissenting opinion in a 1979 case involving a white steelworker who was blocked from an on-the-job training program reserved for black workers, Rehnquist wrote, "there is perhaps no device more destructive to the notion of equality than... the quota. Whether described as 'benign discrimination' or 'affirmative action,' the racial quota is nonetheless a creator of castes, a two-edged sword that must demean one in order to prefer the other."

Rehnquist also lambasted the court's 1973 Roe v. Wade decision, which for the first time held that the Constitution gave women the right to get an abortion.

“One cannot ignore the fact that a woman is not isolated in her pregnancy, and that the decision to abort necessarily involves the destruction of a fetus," Rehnquist wrote. "Nor do the historical traditions of the American people support the view that the right to terminate one's pregnancy is 'fundamental.'"

Victory for vouchers
In 2002, Rehnquist rounded up the five-justice majority for a decision which allows Ohio to use taxpayer money to subsidize private school vouchers for low-income parents in Cleveland.

Rehnquist had long thought Thomas Jefferson's remark about the Constitution putting a ''wall of separation between church and state'' was a ''misleading metaphor.'' Writing for the majority, Rehnquist called Ohio's voucher law "a neutral program of... true private choice,'' not a case of the state promoting religion.

Rehnquist also voted to effectively halt the recount in the 2000 presidential election in Florida.

The Florida Supreme Court, he said, had erred in ordering a recount of ballots that voters had failed to mark clearly or had not punched through, leaving the now-famous "dimpled chads."

"In a Presidential election the clearly expressed intent of the legislature must prevail," Rehnquist wrote. "Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots...."

Role in Clinton trial
Rehnquist's most high-profile political role came in 1999 when he presided over the Senate impeachment trial of President Bill Clinton.

He made few procedural rulings and said little during the trial, but lent a kind of solemnity to the proceedings.

Rehnquist himself had a hand in the events leading to Clinton's impeachment.

It was Rehnquist who appointed Judge David Sentelle to be the chief of the three-judge panel that oversaw independent counsels.

Sentelle and his colleagues, judges Peter Fay and John Butzner, appointed Kenneth Starr in 1994 to serve as independent counsel to investigate the Whitewater real estate deal and other matters involving Clinton.

Although he couldn't have known it at the time, Rehnquist helped bring on Clinton's impeachment by joining the other justices of the Supreme Court in ruling on May 27, 1997, that Paula Jones was entitled to press her suit against Clinton while he was still serving as president.

Milwaukee native
Born in Milwaukee on Oct. 1, 1924, Rehnquist served in the Army Air Corps from 1943 to 1946 and moved to Arizona after graduating from Stanford University Law School in 1952 and clerking for Supreme Court Justice Robert Jackson.

Rehnquist was the chief adviser to Attorney General John Mitchell under President Richard Nixon, who nominated him to be an associate justice of the Supreme Court on Oct. 29, 1971 to fill the vacancy created by the retirement of Justice John Harlan.

Sen. Birch Bayh, D-Ind. led a filibuster to try to block Rehnquist's confirmation. But eventually the Senate voted 68 to 26 to put him on the court. Rehnquist took his seat on Jan. 7, 1972.

The White House tapes caught Nixon referring to Rehnquist as one of "that group of clowns we had around here. Renchburg and that group."

"Renchburg" had made a poor impression on the president by having modishly long sideburns and wearing a pink shirt and a paisley tie to a White House meeting.

President Reagan nominated Rehnquist to be chief justice in 1986, sparking another Senate fracas and a three-day filibuster.

Rehnquist's chief adversary, Sen. Edward Kennedy, D-Mass., charged that his “career of relentless opposition to fundamental claims involving issues such as racial justice, equal rights for women, the freedom of speech and the separation of church and state places him outside the mainstream of American constitutional law as an extremist who should not be confirmed as chief justice.”

So absorbing was the battle over Rehnquist that it drew the fire of liberal advocacy groups away from Judge Antonin Scalia, whom Reagan had nominated to fill Rehnquist's associate justice slot.

The Senate ended up confirming Rehnquist as chief justice by a 65 to 33 vote, with 16 Democrats voting for him.

Then it voted unanimously to confirm Scalia, who has proven to be as much or more a doctrinaire conservative as Rehnquist.