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.
In one noteworthy case involving the Tenth Amendment that Lee insisted on appealing to the high court over the objection of conservatives in the administration, the Court overturned what had been one of the strongest precedents on federalism, National League of Cities v. Usery, as conservatives predicted would happen. After several more bitter disputes with the conservatives in the White House and the Justice Department, Lee resigned in 1985.
(Scalia’s other great disappointment was his rejection by Princeton, his first choice. “I was an Italian boy from Queens, not quite the Princeton type,” Scalia said years later. He went to Georgetown instead, graduating first in his class. Biskupic recounts that Scalia’s budding conservatism and dedication to his Catholic faith were strongly reinforced at Georgetown.)
ALTHOUGH THEY AGREED on many things, Rehnquist was a very different man from Scalia. After finishing first in his class at Stanford Law School, Rehnquist spent a year as a clerk for Supreme Court justice Robert Jackson, and then joined a law firm in Phoenix, where he later connected with the Goldwater campaign. While Scalia was (and still is) always argumentative, always the showman and jokester, always the most fun, outspoken, and opinionated person in any gathering, Rehnquist was subdued, a bit shy, and careful and exact in his words, his writings, and even in his everyday life.
Rehnquist’s confirmation for chief justice was a slog through predictable liberal hyperbole. During his years on the Court, Rehnquist had been the voice of the right, taking strong stands for states’ rights and federalism, against abortion (he was one of only two dissenters in Roe v. Wade), for school prayer, against busing and other race-related integration policies, and for the death penalty. He had also been in the forefront in opposing Warren Court protections for criminal defendants, and a strong defender of federalism; if that wasn’t enough, he had been Nixon’s point man, at the Office of Legal Counsel, on several Watergate-related issues, and on the legalities of wiretapping and surveillance of American citizens. But the Republican majority in the Senate held firm, and Rehnquist was approved by a vote of 65-33. Scalia, on the other hand, whose confirmation came just a couple of weeks after Rehnquist’s, easily breezed through on a unanimous vote of 98-0.
It is perhaps ironic that Rehnquist, who had been opposed by most Senate liberals, moved toward the center in his later years on many issues, where Scalia, who had gained unanimous approval in the Senate, moved to the right. Scalia’s unanimous confirmation was never lost on the left. According to Biskupic, some Democrats, including Joe Biden, would say they wished they could have their votes back. “The vote I most regret casting out of all the ones I ever cast,” Biden later said, “was voting for Scalia.”
Scalia’s arrival, in September 1986, on the same day that Rehnquist became chief, signaled the beginning of a major shift on the Court to the right that would take another 20 years, culminating in the addition of Justices Clarence Thomas in 1991 and John Roberts and Samuel Alito in 2005-2006. Rehnquist, who had often been the only conservative dissenter, would now be joined by another conservative and another justice who adhered to the philosophy espoused by the Reaganites. Add to that the fact that Rehnquist was now chief justice, enabling him to exert more power over the Court generally.
Although Scalia and Rehnquist were both conservatives and had similar judicial and political philosophies, they differed in their approach to constitutional interpretation. By his own definition, Scalia is a textualist. The Constitution and the laws enacted by Congress say what they mean, in his estimate, and they mean what they say. As one writer said about Scalia, “If the proper meaning of the text is clear, [Scalia believes] judges should then determine whether it provides support for the claimed individual right or governmental authority. If so, the claim is valid; if not, it should be rejected. The analysis is complete.”
Scalia’s philosophy is rounded out by several other issues, not the least of which is respect for the separation of powers. Ever since he headed the Justice Department’s Office of Legal Counsel (three years after Rehnquist held that position) and was charged with the responsibility of defending, against Congress, the White House’s assertion that Richard Nixon’s papers and tapes belonged to him personally, Scalia has been suspicious of Congress and a firm believer in defending the executive branch from incursions on its power by Congress. He is also a strong federalist — Scalia believes that the Constitution clearly establishes not only the roles of the three branches of government, but the relationship between the federal and state governments. He contends that the structural designs of the Constitution, i.e., the separation of powers and federalism, are better able to protect individual liberty than the Bill of Rights — which is exactly the argument the federalists made when the Constitution was adopted, reluctantly agreeing to include the Bill of Rights in order to get the states to ratify it. Scalia is also a strong advocate of judicial restraint, believing that courts should not exceed their constitutional mandate, should not confuse their role with that of the legislature, and should preserve concepts of predictability and stability.
Rehnquist’s position on most of the foregoing did not differ much from Scalia’s. But Rehnquist never had a substantive theory of constitutional interpretation. According to another of his former clerks, “He took each case as it came. He thought that the Constitution was not designed to shape all of our behavior but to box in elected officials at the margins….He did not see the sky falling, the way Scalia sometimes does.” To Rehnquist, tradition, precedent, and social order were more important, as they were to the old right.
REHNQUIST’S 34 YEARS on the Supreme Court were crucially important to the conservative cause. Since his appointment as an associate justice in 1972, Rehnquist had been the Court’s voice of the right, and over the course of his long career on the Court, and as he was joined by the other Reagan appointees and went from dissenter to chief justice, what had once been dissents became majority opinions. In many instances, his conservative philosophy thus became the law of the land.
First and foremost, Rehnquist had helped launch the federalist revolution — consistent with his long-held belief that the federal government should share power with the states — by overturning dozens of federal statutes that had injected federal authority into what should have been the prerogative of the states. He also was responsible for vastly limiting the role of the federal courts in the lives of citizens by reducing, if not eliminating, their role in running governmental institutions such as prisons and school districts. By expanding the scope of the Constitution’s Commerce Clause, the courts had, since the Franklin Roosevelt administration, given the federal government the power to regulate virtually anything even slightly related to interstate commerce. The Rehnquist Court changed that, reasserting the doctrine that the Tenth Amendment limited the federal role to “enumerated powers” and left the rest to the states. In its lengthy obituary after his death in 2005, the New York Times wrote that over the course of his career on the Court, Rehnquist “managed to translate many of his long-held [conservative] views into binding national precedent.”
Perhaps even more important was the foundation Rehnquist had laid when he was the only conservative on the Court — a foundation that over time helped the more recent conservative appointees, starting with Scalia, to move the Court as they have. According to the Times obituary, Rehnquist “took the long view: with seeming nonchalance, he would plant a phrase in an opinion in the expectation that it would take root, blossom and turn out to be even more useful in some future case. Time proved him right, not always, but often enough.” His clerks, in those early days, dubbed him the Lone Ranger and gave him an action figure of the masked Texas Ranger, which he kept on his desk. According to one of those former clerks, Rehnquist did much of his best work in those early dissents, largely because he could say what he wanted to say without having to water down his points in order to accommodate other justices.
After he became chief justice in 1986, Rehnquist’s opinions did become more accommodating — probably necessarily so, as he needed to get the votes of other justices, particularly those of Justices O’Connor and Kennedy, to get a majority vote. Scalia’s opinions, on the other hand (and of course Scalia has always been an associate justice), rarely make accommodations to anyone, but are more likely to simply state his own, unadulterated point of view.
AS WE LOOK BACK over the years since Ronald Reagan left the White House, we recognize that real conservative victories — the kind where something is actually changed rather than an election won or a piece of meaningless legislation defeated (or passed) — more often than not have come from the courts. No longer are the federal courts the bastion of liberalism, finding new rights where none existed before, paving the way for wider federal control of every conceivable part of human endeavor, or expanding the scope of legislation way beyond the intent of Congress (all of which drives liberals crazy, and is high on Obama’s “change” list). In the term ending last June, the conservative wing of the Court (and I include Justice Anthony Kennedy in that wing) was in the majority more than 80 percent of the time. And in the big, important cases, the Court more often than not puts the brakes on overzealous and unconstitutional endeavors of legislators, protects the individual liberties of Americans against unreasonable intrusions by government, and preserves the separation of powers envisioned by the framers of the Constitution. Not in every case, by any means, and often not as thoroughly as many of us would like, but what it does is a far cry from the abuses of constitutional liberty practiced when William Rehnquist first joined the Court in 1972. That is buttressed by the renewal of federalism and the sovereignty of the states — something that had all but disappeared during the Warren years, but, with the unyielding attention by William Rehnquist, has again become a vibrant issue on many fronts.
In the term ending in June 2007, after Rehnquist died and was replaced by John Roberts, a former Rehnquist clerk and protégé, and after Samuel Alito replaced Sandra Day O’Connor, the shift to the right became palpable. In that term, the Court upheld, in a 5-4 decision, the federal law banning late-term abortions, gave teachers the ability to control unruly students, abolished the use of affirmative action programs in high schools, and began the assault on the McCain-Feingold campaign finance law. That assault was concluded in January of this year when the Court decided Citizens United v. Federal Election Commission, emasculating the law even further in what may be the most far-reaching case decided in the past several years. Another example, of course, is the 5-4 decision in 2008 in District of Columbia v. Heller, which struck down the District of Columbia’s gun ban and, for the first time, found that the Second Amendment pertains to individual gun ownership — a ruling inconceivable to Court watchers of even a decade ago. As liberal justice Stephen Breyer wrote in June 2008, “It is not often in the law that so few have so quickly changed so much.”
In her Scalia biography, Biskupic concludes that Scalia has changed the terms of debate not only at the court, but also in law schools and in professional legal analyses. As a profile of Scalia in Time magazine put it, Justice Kennedy, the swing vote, may be the most important justice, but “Scalia is the most influential. He has made respectable a mode of conservative constitutional interpretation — ‘originalism’ — that would likely be moribund without him.”
But it is also fair to say that if Scalia is the most influential member of the Court, Rehnquist was the architect of the swing to the right, and fair to say that today’s conservative justices are the builders. If Scalia has changed the terms of debate, he would have had a more difficult time doing so without the groundwork that was laid by William Rehnquist.