Robert Meyer
R.I.P. Chief Justice Rehnquist
By Robert Meyer
Late on the evening of September 4th, I was deeply saddened to hear of the passing of Supreme Court Chief Justice William Rehnquist. He took his seat on the bench in 1972, and was the only remaining justice on the court from that time. For more than 33 years Rehnquist had been a stalwart for the jurisprudence of original intent, moving the court back from the precipice of legal positivism, toward the middle. The court for years had been deep in the abyss of judicial activism which was a constant threat to the constitutionally mandated Separation of Powers doctrine.
Rehnquist was the only other justice beside the late Byron White to dissent against Roe v. Wade, agreeing with White that so-called abortion rights were concocted out of thin air.
Rehnquist was promoted to Chief Justice by President Reagan 1986, in what turned out to be a rather difficult confirmation process, as about a third of the senate voted nay in giving Rehnquist his promotion. This ironically paved the way for Antonin Scalia to become the only conservative nominee to pass confirmation easily in the post-Nixon era. Staunch liberals had devoted most of their political capital to opposing Rehnquist.
Rehnquist had many major contributions. He has done much to curtail the damages done by the contemporary misinterpretations of the religion clauses in the First Amendment. Rehnquist, through an exhaustive study of America's history, understood the erroneous use of the metaphor "separation of church and state," as a devise to cleanse government from religious influence. He understood the religious foundations of America, and stood against the attempts to thwart the religious liberty of persons of faith, via the imposition and establishment of secular humanism in the cultural milieu. In cases such as Stone v. Graham, Wallace v. Jaffree, Allegheny v. ACLU and Lee v. Weisman, Rehnquist was in a minority that defended religious influence from the caprice of the Lemon Test. Often these decisions were 5-4 majorities, which makes you wonder what might have been had Robert Bork not been unjustly excoriated after his nomination.
Only a few years ago, Rehnquist observed in disdain that court had issued a decision bristling with hostility toward religion in public. Rehnquist made some his most blunt and brilliant statements in Wallace v. Jaffree.
"It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment."
And again in the same dissenting opinion:
"... the greatest injury of the "wall" notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.
" ...no amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."
Rehnquist generally took conservative positions on a variety of issues that dealt with making what were traditionally vices, into civil rights. One such decision Bowers v. Hardwick, allowed states to retain the right to set moral standards regarding the criminalizing of what the states deemed to be deviant sexual conduct. That decision was recently nullified by Lawrence v. Texas in 2004, with Rehnquist dissenting.
As I write this piece, President Bush has tapped John Roberts to be the new Chief Justice, rather than an associate justice. This was likely a good decision by the president, because he gets a chief justice that is a nominee he has himself chosen. It will also eliminate the necessity of one more rancorous battle. Roberts once clerked for Rehnquist, and was fairly close to him — close enough that he served as a pallbearer for Rehnquist's funeral.
Roberts will have big shoes to fill, but the death of Rehnquist will likely make the next appointment all the more contested and pivotal to our nation's direction.
R.I.P. Chief Justice Rehnquist, you will be missed, but you will continue to inspire us in the quest for constitutional fidelity.
© Robert Meyer
Late on the evening of September 4th, I was deeply saddened to hear of the passing of Supreme Court Chief Justice William Rehnquist. He took his seat on the bench in 1972, and was the only remaining justice on the court from that time. For more than 33 years Rehnquist had been a stalwart for the jurisprudence of original intent, moving the court back from the precipice of legal positivism, toward the middle. The court for years had been deep in the abyss of judicial activism which was a constant threat to the constitutionally mandated Separation of Powers doctrine.
Rehnquist was the only other justice beside the late Byron White to dissent against Roe v. Wade, agreeing with White that so-called abortion rights were concocted out of thin air.
Rehnquist was promoted to Chief Justice by President Reagan 1986, in what turned out to be a rather difficult confirmation process, as about a third of the senate voted nay in giving Rehnquist his promotion. This ironically paved the way for Antonin Scalia to become the only conservative nominee to pass confirmation easily in the post-Nixon era. Staunch liberals had devoted most of their political capital to opposing Rehnquist.
Rehnquist had many major contributions. He has done much to curtail the damages done by the contemporary misinterpretations of the religion clauses in the First Amendment. Rehnquist, through an exhaustive study of America's history, understood the erroneous use of the metaphor "separation of church and state," as a devise to cleanse government from religious influence. He understood the religious foundations of America, and stood against the attempts to thwart the religious liberty of persons of faith, via the imposition and establishment of secular humanism in the cultural milieu. In cases such as Stone v. Graham, Wallace v. Jaffree, Allegheny v. ACLU and Lee v. Weisman, Rehnquist was in a minority that defended religious influence from the caprice of the Lemon Test. Often these decisions were 5-4 majorities, which makes you wonder what might have been had Robert Bork not been unjustly excoriated after his nomination.
Only a few years ago, Rehnquist observed in disdain that court had issued a decision bristling with hostility toward religion in public. Rehnquist made some his most blunt and brilliant statements in Wallace v. Jaffree.
"It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment."
And again in the same dissenting opinion:
"... the greatest injury of the "wall" notion is its mischievous diversion of judges from the actual intentions of the drafters of the Bill of Rights.
" ...no amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned."
Rehnquist generally took conservative positions on a variety of issues that dealt with making what were traditionally vices, into civil rights. One such decision Bowers v. Hardwick, allowed states to retain the right to set moral standards regarding the criminalizing of what the states deemed to be deviant sexual conduct. That decision was recently nullified by Lawrence v. Texas in 2004, with Rehnquist dissenting.
As I write this piece, President Bush has tapped John Roberts to be the new Chief Justice, rather than an associate justice. This was likely a good decision by the president, because he gets a chief justice that is a nominee he has himself chosen. It will also eliminate the necessity of one more rancorous battle. Roberts once clerked for Rehnquist, and was fairly close to him — close enough that he served as a pallbearer for Rehnquist's funeral.
Roberts will have big shoes to fill, but the death of Rehnquist will likely make the next appointment all the more contested and pivotal to our nation's direction.
R.I.P. Chief Justice Rehnquist, you will be missed, but you will continue to inspire us in the quest for constitutional fidelity.
© Robert Meyer
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