How William Rehnquist and Antonin Scalia set the stage for a conservative turnaround on the U.S. Supreme Court.
Paul Clement, George W. Bush’s solicitor general, was trying to persuade the Supreme Court to broadly interpret the Civil Rights Act of 1866. Clement argued that the Court should find that a cause of action existed even though the law didn’t explicitly say so. When questioned by Justice Antonin Scalia, Clement noted that the Court had previously inferred new causes of action, and should do so again.
“We inferred that cause of action in the bad old days, when we were inferring causes of action all over the place,” Scalia responded, referring to the days when the Warren Court was busily rewriting the laws and the Constitution. Clement countered that even more recently, in the post-bad old days, the Court had ruled that such causes of action could exist, and should do so again.
“Well, just when was it,” Scalia asked Clement, “when the bad old days ended?” Clement replied, “The bad old days ended when you got on the Court, Mr. Justice Scalia.”
THE BAD OLD DAYS may not have ended on the day in September 1986 when Antonin Scalia was sworn in as a justice of the Supreme Court. It would take the addition of Justices O’Connor, Kennedy, Thomas, Roberts, and Alito before those days were buried. But by building on what William Rehnquist had done since his appointment to the Court in 1972, Scalia helped to set the stage for what was to come over the next couple of decades.
In American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (Sarah Crichton Books/FS&G, $28) Joan Biskupic, Supreme Court reporter for USA Today, gives a thorough and evenhanded account of this father of nine children, grandfather of 30; devout, traditional Catholic; son of Italian immigrants; and argumentative, creative thinker. Biskupic leaves no doubt that Scalia has added a dimension to Supreme Court jurisprudence rarely before seen in U.S. history and that, as he proceeds into his seventies, he remains at the top of his game. Although the book is probably better suited to laymen than to lawyers who practice in the Supreme Court, Biskupic rightfully asserts that Scalia has changed the terms of the debate at the Court, and shows that he is its most influential member, and certainly one of the most influential souls in public life.
I recall my first encounter with Nino, as he has been known since childhood; his performance that day was vintage Scalia. In the late 1970s I was minority counsel to the Senate Judiciary Committee and was charged with rewriting the Administrative Procedure Act, an arcane statute of consequence only to a small group of lawyers. I had spent several months negotiating changes to the APA with one Stephen Breyer, then a Harvard law professor who was spending a year on loan to Ted Kennedy’s Democratic Judiciary Committee staff and who would subsequently, of course, join the high court himself. I had been invited to address a group of corporate lawyers interested in administrative law who were meeting in Williamsburg, and as I was about to be introduced to the crowd, my host helpfully told me that Antonin Scalia, who was then teaching at the University of Chicago Law School and editing Regulation, a magazine published by the American Enterprise Institute, had joined the meeting and had agreed to share the time allotted to me, but in debate format, and would be taking the view opposite mine. Need I remind you that Scalia was a star on the debate teams in both high school and at Georgetown, and if anything, his skills and precision as a debater had only improved since? Might I add that Nino cleaned my clock?
ALTHOUGH SCALIA AND HIS recently appointed colleagues have turned the high court from the liberal bastion that it once was — the bad old days — into arguably the most conservative voice in official Washington, this could not have been done without the groundwork that was laid by William Rehnquist, who joined the Supreme Court in 1972, appointed by Richard Nixon.
To Rehnquist, “conservatism was a core value,” writes Herman Obermayer, a Washington journalist, in Rehnquist: A Personal Portrait of the Distinguished Chief Justice of the United States. (Threshold Editions, $27), his highly personal and unusual account of his friend. “It was an essential part of the prism through which Bill viewed life. Its application to politics and government was only a small portion of a larger value system. He respected tradition and order, intellectual and social, as well as political and economic.”
Obermayer and Rehnquist became best friends while in their fifties, spending time playing tennis, going to movies, enjoying long lunches and dinners and long conversations about, well, everything. Rehnquist comes alive as a friendly, if somewhat shy, highly intelligent, and well-educated man. Although the two did not talk much about cases or the inner workings of the Supreme Court, or about policy and the positions Rehnquist took, the book tells us a great deal about this long-serving public servant, and gives us a wonderful view of the sort of man he was, and what made him tick.
Rehnquist got his start in politics working for Barry Goldwater in the 1964 presidential campaign, and his instincts and political philosophy reflected the thinking of the old right and the Goldwater wing of Republicanism. The social issues were not, to Rehnquist, particularly important, and he had no interest in fighting the culture wars. His hallmark was belief in majority rule, in consensus, and in what he called “pluralism,” which he described as not letting power become too concentrated in any one place. Not in the government, but shared with the people. Not in the federal government, but shared with the states. He liked to quote Hayek’s The Road to Serfdom, which he had read while in the Army Air Corps. “It made quite an impression on me,” he told C-Span’s Brian Lamb in an interview, and according to Obermayer, Hayek was one of Rehnquist’s favorite contemporary thinkers, and his writings undergirded much of Rehnquist’s economic and political philosophy.
Rehnquist had also written a thesis on the British political philosopher Michael Oakeshott, a critic of central planning and the welfare state who believed that limited government was best preserved through pragmatic politics rather than abstract political theories — beliefs that Rehnquist held as well. Richard Garnett, a former Rehnquist clerk, has said that Rehnquist’s political philosophy was not “always about swashbuckling ideological adherence to first principles. It is also about temperament and disposition, about an attachment to traditions and institutions, and about stability and regularity.”
CHIEF JUSTICE WARREN BURGER RETIRED from the high court in 1986, opening the door for Reagan to appoint a successor. Burger, whom Nixon had appointed when Earl Warren retired in 1969, had not been the strict constructionist that Nixon thought he would be, but had continued, in many cases, the drift to the left that marked the Warren era. Burger’s retirement gave Reagan and Ed Meese, his loyal attorney general, and the conservatives in his administration the opportunity he had hoped for to shift the direction of the Court, knowing that a lifetime appointment to the high court could help project parts of the Reagan Revolution far into the future.
Nixon and Ford had talked about judicial conservatism, but talk exceeded reality time and again, as many of their judicial appointments later made clear. But with Reagan things would be different; he would not appoint well-connected Republican lawyers who wanted to be judges, but instead put in place the most comprehensive recruitment and screening process in history, designed to find intellectually solid conservatives who would have the fortitude to stick to their principles, knowing that the appointment of such judges would be crucial to move the courts, and the country, to the right.
Reagan’s first and only choice for chief was Rehnquist. But in choosing a replacement for Rehnquist as associate justice, Reagan found himself torn between Robert Bork and Scalia, both of whom by then were serving on the U.S. Court of Appeals for the District of Columbia, and both of whom were, to Reagan, satisfactorily conservative. Biskupic relates in detail the intense debate within the White House and the Department of Justice over which would get the nod, and correctly concludes that because of his dynamic conservatism, Italian-American heritage, and comparative good health — and because he was nine years younger than Bork — Scalia won out.
For Scalia, the appointment was at last vindication for what had been one of the great disappointments of his life: he had been on the short list, in 1980, to be solicitor general at the Justice Department but was aced out by Rex Lee, former dean of the law school at Brigham Young University and another veteran of the Nixon Justice Department. At the time Lee was considered a solid conservative, and it was thought that he would hold down the department’s right flank. But it was not to be.
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