The Rehnquist Legacy I

Since I’ve already discussed Rehnquist’s Brown memo, I’ll leave that mostly for later. Since it is (for good reason) the primary focus of many postmortems, we shouldn’t forget that Rehnquist’s willingness to uphold Plessy was the position generally held by conservatives at the time. (I mean this as an indictment of American conservatism, not a defense of Rehnquist.) To take the most important example, Eisenhower–who progressives seem to treat rather well–not only famously hung the Supreme Court out to dry after Brown and testified in opposition to military desegregation in 1948 but informed Earl Warren that Southern segregationists were just understandably worried about “sweet little girls [being] seated among some big black bucks”–deserves at least a similar level of scrutiny.

I think, then, that as with O’Connor discussion of Rehnquist should be started with Bush v. Gore. This is not because it had the worst substantive outcome of his opinions; given that Republicans controlled both Congress and the Florida legislature Bush’s assumption of the presidency was inevitable by that time, although the Court did legitimate his presidency. It is, however, his biggest failure and the biggest stain on his Court, because confronted with an issue at the heart of democracy itself, Rehnquist and 4 of his colleagues issued a markedly lawless and unrprincipled decision.

Conservatives trying to rehabilitate Bush v. Gore have generally conceded the awfulness of the Kennedy-authored per curiam, and instead have suggested that Rehnquist’s concurrence provides a legitimate basis for the decision. This could not be more wrong. The equal protection rationale of the majority opinion could conceivably serve as the basis for a credible opinion; in the abstract, the text of the 14th Amendment permits the reading that inequities in vote counting are unconstitutional. The problem with the argument the Court actually made is that 1)this reading is not supported by Supreme Court doctrine and is particularly inconsistent with the equal protection jurisprudence of the justices in the majority, 2)the remedy the Court ordered was completely indefensible given the alleged violation (if there are equal protection violations, the remedy has to be to order a constitutional recount, not to shut the recount down and hence preserve a vote count with many inequities), and 3)the Court was not willing to apply its reading to future cases. Rehnquist’s Article II argument, conversely, is embarrassingly specious on its face. The idea that the Florida Court somehow violated the constitutional directive that the legislature direct the method of picking electors is just absurd. As Ginsburg noted, “[t]he Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature’’s enactments.” The banal grant of power to the state legislature does not place any unusual constraint on the interpretive power of the courts unless one rejects judicial review altogether. (Indeed, the Florida legislature in this case specifically granted extensive discretion to the courts.) Even if there was some extreme case in which a judicial opinion could be so outrageous as to violate Article II–something I very strongly doubt–the Florida court’s interpretation does not remotely meet such a standard. Not only was the court’s reading a perfectly plausible reading of state law, but it was willing to apply a consistent standard even though it helped Bush rather than Gore in a majority of cases. In addition, of course, Rehnquist’s opinion–if taken seriously, which (as with the majority opinion) he clearly does not intend–would radically enlarge the power of the federal courts to supervise the states, which of course is flagrantly inconsistent with his previous jurisprudence.

When faced with a constitutional crisis, the Court Rehnquist led completely failed in its responsibilities. Any discussion of Rehnquist’s legacy must put this fact front and center.