The Intellectual Maturation and Ideological Legacy of William Rehnquist

On January 21, 1973, a small article appeared in the Christian Crusade Weekly, one day before the Supreme Court decision in Roe v. Wade legalizing abortion nationwide was announced. The headline read “Justice Rehnquist Says Too Few Hold ‘Deeply Held Convictions.’” The article went on to quote Rehnquist as stating “that there are ‘even a smaller number of those who seem willing to speak out for their convictions.’” The young justice had apparently made these blunt statements to “a group of clergymen in Washington, Dec 7.” He cited Martin Luther’s actions at the Diet of Worms in 1521 as an inspiration: “I would certainly think that one of the main reasons why Martin Luther was [so successful] that is [sic] because of his absolutely inflexible determination to follow what he thought was right in the face of overwhelming odds.”1 The normally courtly and calm Rehnquist seems to have dropped his façade when speaking to these clergymen. Perhaps he was still raw from being one of only two dissenters in the Roe case. Or maybe the stress of a long first year on the bench had simply made him loosen his tongue for a few minutes. But Rehnquist was used to standing alone. His unique conservative views had stood out since his college years at Stanford. Of all the people in Washington, Bill Rehnquist would never be accused of not having “deeply held convictions.” His clerks later in the 1970s would buy him an action figure of the Lone Ranger as a tribute to his many sole dissenting opinions.2 Indeed, the next 32 fruitful, though often frustrating, years of service on the highest court in the land would put his “deeply held convictions” in the spotlight. He was often on the losing side in the major legal ideological battles of the next three decades: he lost on abortion, affirmative action, and free speech. He had a few major victories, most notably in Lopez v. United States, but he was often left to pen dissent after dissent, unwavering in his firm beliefs. But he also changed when he became chief justice, beginning to focus more on court unity and stare decisis (the idea that, for the most part, precedent should not be overruled.) When he died in 2005, having served thirty-three years on the court, including nineteen as chief justice, he was remembered as a great man, but a figure whose ambitions for the remaking of the law in his own conservative mold were ultimately thwarted. Rehnquist’s successor was a man who had witnessed Rehnquist’s struggles firsthand, a former clerk with an intellect as formidable as his old boss’s: John G. Roberts Jr. Roberts had clerked for Rehnquist during the 1980 term, when Rehnquist was still a lone associate justice, often dissenting in vain. The ideologies of the two men are remarkably similar, a fact which has been made apparent by the conservative revolution of the Roberts Court. The views that Rehnquist held, once considered radical, have since entered the mainstream lexicon of the Republican legal movement. Rehnquist’s dissents in Roe, Grutter v. Bollinger (which upheld affirmative action), and a myriad of other cases now reflect where the law stands. Historical vindication is not infrequent, but rarely has it occurred so quickly after a man’s death. The Trump appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have remade the court into a body-politic that leans significantly to the right. How did we get here? How is it possible that less than two decades after his death, the Roberts Court has achieved many of the landmark judicial victories that Rehnquist couldn’t obtain in his own lifetime. To answer these questions, one must look past the era of the Roberts Court, past Roe, and all the way back to when the formidable intellect of William Rehnquist was just starting to develop, and the future justice was beginning to formulate the legal doctrines that would one day be carried out by both him and Roberts. It is Rehnquist’s views on the important legal issues of today that have been enshrined into law, not those of his more liberal colleagues. One can hear his dissents echoed in Samuel Alito’s opinion overturning Roe, Roberts’ opinion striking down race-based admissions policies in higher education, and even in the Supreme Court’s “shadow docket” that often decides whether death row inmates live or die. Rehnquist had a long and thorough legal and political education, attending Stanford for his bachelor’s, master’s, and law degrees, studying political science at Harvard, and clerking for one of the most famous justices of his era, Robert Jackson. The road that took him to the beliefs he eventually held so deeply was a winding one, with many different influences and mentors pushing him towards conservatism. But it is the intellectual maturation of William Rehnquist that meshes so perfectly with the goals of the modern court, and if one wishes to understand John Roberts, his colleagues, and the decisions they make, how Rehnquist became the zealous conservative warrior that he did must be clearly understood.