William Rehnquist

William Rehnquist
16th Chief Justice of the United States
In office September 25, 1986[1] – September 3, 2005
Nominated by	Ronald Reagan
Preceded by	Warren Burger
Succeeded by	John Roberts
Associate Justice of the Supreme Court of the United States
In office December 15, 1971 – September 26, 1986
Nominated by	Richard Nixon
Preceded by	John Harlan
Succeeded by	Antonin Scalia
United States Assistant Attorney General for the Office of Legal Counsel
In office January 29, 1969 – December 1971
President	Richard Nixon
Preceded by	Frank Wozencraft
Succeeded by	Ralph Erickson
Personal details
Born	William Hubbs Rehnquist (1924-10-01)October 1, 1924 Milwaukee, Wisconsin, U.S.
Died	September 3, 2005(2005-09-03) (aged 80) Arlington, Virginia, U.S.
Political party	Republican
Spouse(s)	Nan Cornell (1953–1991)
Children	3
Education	Denison University Stanford University (BA, MA, LLB) Harvard University (MA)
Signature
Military service
Allegiance	United States
Service/branch	United States Army
Years of service	1943–1946
Battles/wars	World War II

William Hubbs Rehnquist (/ˈrɛnkwɪst/; October 1, 1924 – September 3, 2005) was an American lawyer and jurist who served on the Supreme Court of the United States for 33 years, first as an Associate Justice from 1972 to 1986, and then as the 16th Chief Justice of the United States from 1986 until his death in 2005. Considered a conservative, Rehnquist favored a conception of federalism that emphasized the Tenth Amendment's reservation of powers to the states. Under this view of federalism, the court, for the first time since the 1930s, struck down an act of Congress as exceeding its power under the Commerce Clause.

Born in Shorewood, Wisconsin, Rehnquist pursued a legal career in Phoenix, Arizona after graduating from Stanford Law School, he clerked for Associate Justice Robert H. Jackson during the Supreme Court's 1952–1953 term and served as a legal adviser for Republican presidential nominee Barry Goldwater in the 1964 election. In 1969, President Richard Nixon appointed Rehnquist as Assistant Attorney General of the Office of Legal Counsel; in 1971, Nixon nominated Rehnquist to succeed Associate Justice John Marshall Harlan II, and Rehnquist won Senate confirmation that same year. Rehnquist quickly established himself as the most conservative member of the Burger Court; in 1986, President Ronald Reagan nominated Rehnquist to succeed retiring Chief Justice Warren Burger, and Rehnquist again won Senate confirmation.

Rehnquist served as Chief Justice for nearly 19 years, making him the fourth-longest-serving Chief Justice, and the eighth-longest-serving Justice, he became an intellectual and social leader of the Rehnquist Court, earning respect even from the Justices who frequently opposed his opinions. Though he remained a member of the conservative wing of the court, Associate Justices Antonin Scalia and Clarence Thomas were often regarded as more conservative, as Chief Justice, Rehnquist presided over the impeachment trial of President Bill Clinton.

Rehnquist wrote the majority opinions in United States v. Lopez (1995) and United States v. Morrison (2000), holding in both cases that Congress had exceeded its power under the Commerce Clause. He opposed the court's Roe v. Wade (1973) decision and continued to argue that Roe had been incorrectly decided in Planned Parenthood v. Casey (1992). In Bush v. Gore (2000), he voted with the court's majority to end the Florida recount.

Early life[edit]

Rehnquist was born on October 1, 1924 and grew up in the suburb of Shorewood, his father, William Benjamin Rehnquist, was a sales manager at various times for printing equipment, paper, and medical supplies and devices; his mother, Margery Peck Rehnquist—the daughter of a local hardware store owner who also served as an officer and director of a small insurance company—was a local civic activist, as well as translator and homemaker.^[2] His paternal grandparents immigrated from Sweden.^[3][4]

Rehnquist graduated from Shorewood High School in 1942,^[5] he attended Kenyon College, in Gambier, Ohio, for one quarter in the fall of 1942, before entering the U.S. Army Air Forces. He served from March 1943 – 1946, mostly in assignments in the United States, he was put into a pre-meteorology program and assigned to Denison University until February 1944, when the program was shut down. He served three months at Will Rogers Field in Oklahoma City, three months in Carlsbad, New Mexico, and then went to Hondo, Texas, for a few months. He was then chosen for another training program, which began at Chanute Field, Illinois, and ended at Fort Monmouth, New Jersey, the program was designed to teach the maintenance and repair of weather instruments. In the summer of 1945, Rehnquist went overseas as a weather observer in North Africa.^[6]

After the war ended, Rehnquist attended Stanford University with assistance under the provisions of the G.I. Bill.^[7] In 1948, he received both a Bachelor of Arts and a Master of Arts degree in political science; in 1950, he attended Harvard University, where he received another Master of Arts, this time in government. He later returned to Stanford, and graduated from the Stanford Law School in the same class as Sandra Day O'Connor, with whom he would later serve on the Supreme Court, they briefly dated at Stanford.^[8] Rehnquist graduated first in his class.^[7]

Law clerk at the Supreme Court[edit]

Rehnquist went to Washington, D.C., to work as a law clerk for Justice Robert H. Jackson of the United States Supreme Court during the court's 1952–1953 term.^[9] There, he wrote a memorandum arguing against federal court-ordered school desegregation while the court was considering the landmark case of Brown v. Board of Education, which was later decided in 1954. Rehnquist's 1952 memo, entitled "A Random Thought on the Segregation Cases", defended the "separate-but-equal" doctrine; in that memo, Rehnquist said:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed. To the argument that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.^[10]

In both his 1971 Senate confirmation hearing for associate justice and his 1986 hearing for chief justice, Rehnquist testified that the memorandum reflected the views of Justice Jackson rather than his own views. Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use."^[11] Elsie Douglas, long-time secretary and confidante of Justice Jackson, stated during Rehnquist's 1986 hearings that his allegation was "a smear of a great man, for whom I served as secretary for many years. Justice Jackson did not ask law clerks to express his views, he expressed his own and they expressed theirs. That is what happened in this instance."^[12]

However, the papers of Justices Douglas and Frankfurter indicate that Justice Jackson voted for Brown in 1954 only after changing his mind.^[13]

At his 1986 hearings for chief justice, Rehnquist tried to put further distance between himself and the 1952 memo: "The bald statement that 'Plessy was right and should be reaffirmed,' was not an accurate reflection of my own views at the time."^[14] However, Rehnquist acknowledged defending Plessy in arguments with fellow law clerks.^[15]

Several commentators have concluded that the memo reflected Rehnquist's own views rather than those of Justice Jackson.^[16][17] A biography on Jackson corroborates this explanation, stating that Jackson instructed his clerks to express their own views, not his,^[18] this conclusion is further corroborated by an article published in The Boston College Law Review in 2012, which analyzes a 1955 letter written to Justice Frankfurter that criticized Justice Jackson.^[19]

In any event, while later serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the Brown decision and frequently relied upon it as precedent.^[20][21] Rehnquist stated in 1985 that there was a "perfectly reasonable" argument against Brown v. Board and in favor of Plessy, even though he now saw the Court's decision in Brown as correct.^[18]

In a memorandum to Justice Jackson about Terry v. Adams,^[22] which involved the right of blacks to vote in an allegedly private Texas election, Rehnquist wrote:

The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort, it is about time the Court faced the fact that the white people of the south do not like the colored people. The constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.^[5]

In another memorandum to Justice Jackson regarding the same case (Terry), Rehnquist wrote:

Clerks began screaming as soon as they saw this that 'Now we can show those damn southerners, etc.' I take a dim view of this pathological search for discrimination and as a result I now have something of a mental block against the case.^[23]

Nevertheless, Rehnquist recommended to Justice Jackson that the Supreme Court should agree to hear the Terry case.

Private practice[edit]

Rehnquist moved to Phoenix, Arizona, where he was in private law practice from 1953 to 1969, he began his legal work in the firm of Denison Kitchel, subsequently the national campaign manager of the Barry M. Goldwater presidential campaign in 1964. During these years, Rehnquist was active in the Republican Party and served as a legal advisor under Kitchel to Goldwater's campaign,^[24] he collaborated with Harry Jaffa on Goldwater's speeches.^[25]

Many years later, during the 1971 hearing for associate justice and later during the 1986 Senate hearings on his chief justice nomination, several people came forward to complain about Rehnquist's participation in Operation Eagle Eye, a Republican attempt to discourage minority voters in Arizona elections, when Rehnquist served as a poll watcher in the early 1960s.^[26] Rehnquist denied the charges, and Vincent Maggiore, then chairman of the Phoenix-area Democratic Party, said he had never heard any negative reports about Rehnquist's Election Day activities. "All of these things," he said, "would have come through me."^[27]

Justice Department[edit]

When President Richard Nixon was elected in 1968, Rehnquist returned to work in Washington. He served as Assistant Attorney General of the Office of Legal Counsel, from 1969 to 1971;^[28] in this role, he served as the chief lawyer to Attorney General John Mitchell. President Nixon mistakenly referred to him as "Renchburg" in several of the tapes of Oval Office conversations revealed during the Watergate investigations.^[29]

Because he was well-placed in the Justice Department, Rehnquist was mentioned for many years as a possibility for the source known as Deep Throat during the Watergate scandal.^[30] Once Bob Woodward revealed on May 31, 2005, that W. Mark Felt was Deep Throat, this speculation ended. It was William Rehnquist who determined that Government National Mortgage Association guarantees constituted a full faith and credit promise of the United States.^[31]

In fall 1971, Nixon received the resignations of two Supreme Court justices, Hugo Black and John Marshall Harlan II, after compiling an initial list of possible appointees that ran afoul of Chief Justice Burger and the American Bar Association, Nixon considered Rehnquist for one of the slots. Henry Kissinger discussed the possible pick with presidential advisor H.R. Haldeman and asked. "Rehnquist is pretty far right, isn't he?" Haldeman responded, "Oh, Christ! He's way to the right of Buchanan,"^[32] referring to then-presidential advisor Patrick Buchanan.

Associate Justice[edit]

Rehnquist portrait as an Associate Justice in 1972

Nixon nominated Rehnquist to replace John Marshall Harlan II on the Supreme Court upon Harlan's retirement, and after being confirmed by the Senate by a 68–26 vote on December 10, 1971, Rehnquist took his seat as an associate justice on January 7, 1972.^[33] There were two vacancies on the court at the time; Nixon nominated Lewis Franklin Powell, Jr. to fill the other, left by the retirement of Hugo Black. Black died September 25, 1971, and Harlan died on December 29 of that year.

On the Burger Court, Rehnquist promptly established himself as the most conservative of Nixon's appointees, taking a narrow view of the Fourteenth Amendment and a broad view of state power. Rehnquist almost always voted "with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases, and with the government in speech cases."^[34] Although Rehnquist was often a lone dissenter in cases early on, his views would later often become the majority view of the Court.^[7]

Professor David Shapiro of Harvard Law School suggested that Rehnquist's votes were guided by three basic propositions:^[35]

1. Conflicts between an individual and the government should, whenever possible, be resolved against the individual (this also holds for conflicts between an individual and an employer, including civil rights litigation).
2. Conflicts between state and federal authority should, whenever possible, be resolved in favor of the states.
3. Questions of the exercise of federal jurisdiction should, whenever possible, be resolved against such exercise.

Federalism[edit]

For years, Rehnquist was determined to keep cases involving individual rights in state courts away from federal reach.^[34][36]

In 1977s National League of Cities v. Usery, Rehnquist's majority opinion invalidated a federal law extending minimum wage and maximum hours provisions to state and local government employees.^[37] Rehnquist wrote that "this exercise of congressional authority does not comport with the federal system of government embodied in the Constitution."^[37]

As chief justice, Rehnquist presided over what law professor Erwin Chemerinsky has called a "federalist revolution",^[38] during which the Court limited federal power in cases such as New York v. United States, United States v. Lopez, Printz v. United States, and United States v. Morrison. Similarly, Cato Institute scholar Roger Pilon has said that "[t]he Rehnquist court has revived the doctrine of federalism . . . only at the edges and in very easy cases."^[39]

Equal protection, civil rights, and abortion[edit]

Rehnquist rejected a broad view of the Fourteenth Amendment; in 1952, while serving as a clerk to Supreme Court Justice Robert Jackson, Rehnquist wrote a memorandum which concludes that "Plessy v. Ferguson was right and should be re-affirmed. If the Fourteenth Amendment did not enact Spencer's Social Statics, it just as surely did not enact Myrddahl's American Dilemma" (An American Dilemma), by which he meant that the Court should not "read its own sociological views into the Constitution."^[40] He believed that the Fourteenth Amendment was meant only as a solution to the problems of slavery, and was misapplied when applied towards abortion rights or prisoner's rights.^[34][41] Rehnquist believed that the Court "had no business reflecting society's changing and expanding values" and argued that this was the domain of the Congress.^[34] Rehnquist tried to weave his view of the amendment into his opinion for Fitzpatrick v. Bitzer, but it was rejected by the other justices.^[41] Rehnquist later extended what he said he saw as the scope of the amendment, writing in Trimble v. Gordon: "except in the area of the law in which the Framers obviously meant it to apply—classifications based on race or on national origin".^[42]

Also, during the Burger Court's deliberations over Roe v. Wade, Rehnquist promoted his view that court's jurisdiction does not apply over abortion.^[43]

He voted against the expansion of school desegregation plans and the establishment of legalized abortions, dissenting in Roe v. Wade, 410 U.S. 113 (1973). Rehnquist expressed his views about the Equal Protection Clause in cases like Trimble v. Gordon:^[42]

Unfortunately, more than a century of decisions under this Clause of the Fourteenth Amendment have produced .... a syndrome wherein this Court seems to regard the Equal Protection Clause as a cat-o'-nine-tails to be kept in the judicial closet as a threat to legislatures which may, in the view of the judiciary, get out of hand and pass "arbitrary", "illogical", or "unreasonable" laws. Except in the area of the law in which the Framers obviously meant it to apply—classifications based on race or on national origin, the first cousin of race—the Court's decisions can fairly be described as an endless tinkering with legislative judgments, a series of conclusions unsupported by any central guiding principle.

Other issues[edit]

Rehnquist consistently defended state-sanctioned prayer in public schools.^[18]

Rehnquist held a restrictive view of criminals' and prisoners' rights, and held the view that capital punishment is constitutionally permissible,^[44] he supported the view that the Fourth Amendment permitted a warrantless search incident to a valid arrest.^[45]

In Nixon v. Administrator of General Services (1977), Rehnquist dissented from a decision upholding the constitutionality of an act that gave a federal agency administrator certain authority over former President Nixon's presidential papers and tape recordings.^[46] He dissented solely on the ground that the law was "a clear violation of the constitutional principle of separation of powers".^[37][46]

During oral argument in Duren v. Missouri (1978), the court faced a challenge to laws and practices that made jury duty voluntary for women in that state. At the end of Ruth Ginsburg's oral presentation Rehnquist asked her, "You will not settle for putting Susan B. Anthony on the new dollar, then?"^[47]

Rehnquist wrote the majority opinion in Diamond v. Diehr, 450 U.S. 175 (1981), which began a gradual trend toward overturning the ban on software patents in the United States first established in Parker v. Flook, 437 U.S. 584 (1978). In Sony Corp. of America v. Universal City Studios, Inc., pertaining to video cassette recorders such as the Betamax system, Justice Stevens again wrote an opinion providing a broad fair use doctrine while Rehnquist joined the dissent, which supported stronger copyrights. Years later, in Eldred v. Ashcroft, 537 U.S. 186 (2003), Rehnquist was in the majority favoring the copyright holders, with Justices Stevens and Breyer dissenting in favor of a narrower construction of copyright law.

Rehnquist's view of the rational basis test[edit]

David Shapiro, professor of law at Harvard University, wrote that while Rehnquist was an associate justice, he disliked even minimal inquiries into legislative objectives except in the areas of race, national origin, and infringement of specific constitutional guarantees,^[48] for Rehnquist, the rational basis test, which is an important part of equal protection jurisprudence, was not a standard for weighing the interests of the government against the individual; rather, it was a label to describe a preordained result.^[48] Shapiro in 1978 pointed out that Rehnquist had avoided joining rational basis determinations for years, except in one case, Weinberger v. Wiesenfeld.^[48] Rehnquist eschewed the Court majority's approach to equal protection, writing in dissent in Trimble v. Gordon that the state's distinction should be sustained because it was not "mindless and patently irrational".^[48] (The court struck down an Illinois law allowing illegitimate children to inherit by intestate succession only from their mothers.)

Shapiro pointed out that Rehnquist seemed content to find a sufficient relationship between a challenged classification and perceived governmental interests "no matter how tenuous or speculative that relationship might be".^[48][49]

A practical result of Rehnquist's view of rational basis can be seen in Cleveland Board of Education v. LaFleur, wherein the Court's majority struck down a school board rule that required every pregnant teacher to take unpaid maternity leave beginning five months before the expected birth of her child.^[49] Justice Powell wrote an opinion rested on the ground that the school board rule was too overinclusive to survive equal protection analysis;^[49] in dissent, Rehnquist attacked Powell's opinion, saying:

If legislative bodies are to be permitted to draw a line anywhere short of the delivery room, I can find no judicial standard of measurement which says the ones drawn here were invalid.^[49]

Shapiro writes that Rehnquist's opinion implied:

That there is no constitutionally significant difference between a classification that encompasses virtually no one outside the scope of its purpose and a classification so overinclusive that the vast majority of those falling within are beyond its intended scope.^[49]

Rehnquist's dissent in United States Department of Agriculture v. Murry illuminates his view that a classification should pass muster under the rational basis test so long as that classification is not entirely counter-productive with respect to the purposes of the legislation in which it is contained.^[50] Shapiro alleges that Rehnquist's stance "makes rational basis a virtual nullity".^[49]

Relations on the Court[edit]

Rehnquist built warm personal relations with his colleagues, even with ideological opposites. Justice William Brennan, Jr. "startled one acquaintance by informing him that 'Bill Rehnquist is my best friend up here.'"^[51] Rehnquist and Justice William O. Douglas bonded over a shared iconoclasm and love of the west.^[52] The Brethren claims that the court's "liberals found it hard not to like the good-natured, thoughtful Rehnquist", despite finding his legal philosophy "extreme",^[53] and that Justice Stewart regarded Rehnquist as "excellent" and "a "team player, a part of the group in the center of the court, even though he usually ended up in the conservative bloc".^[54]

Since Rehnquist's first years on the Supreme Court, other justices criticized what they saw as his "willingness to cut corners to reach a conservative result", "gloss[ing] over inconsistencies of logic or fact" or distinguishing indistinct cases to reach their destination;^[55][56] in Jefferson v. Hackney, for example, Douglas and Justice Thurgood Marshall charged that Rehnquist's opinion "misrepresented the legislative history"^[57] of a federal welfare program.^[58] Rehnquist did not correct what The Brethren characterizes as an "outright misstatement, ... [and thus] publish[ed] an opinion that twisted the facts".^[57] Rehnquist's "misuse" of precedents in another case "shocked" Justice John Paul Stevens,^[59] for his part, Rehnquist was often "contemptuous of Brennan's opinions", seeing them as "bending the facts or law to suit his purposes".^[60]

Reluctant to compromise, Rehnquist was the most frequent sole dissenter during the Burger years, garnering the nickname "the Lone Ranger",^[18] he usually voted with Chief Justice Burger,^[61] and – recognizing "the importance of his relationship with Burger" – often went along to get along, joining Burger's majority opinions even when he disagreed with them, and, in important cases, "tr[ying] to straighten him out".^[60]

Chief Justice[edit]

William Rehnquist (left) takes the oath as Chief Justice from retiring Warren Burger at the White House in 1986, as his wife, Natalie, holds a Bible, President Ronald Reagan and Justice Antonin Scalia look on

When Chief Justice Warren Burger retired in 1986, President Ronald Reagan nominated Rehnquist to fill the position, although Rehnquist was to the right of Burger,^[62] "his colleagues were unanimously pleased and supportive", even his "ideological opposites".^[51] The nomination "was met with 'genuine enthusiasm on the part of not only his colleagues on the Court but others who served the Court in a staff capacity and some of the relatively lowly paid individuals at the Court. There was almost a unanimous feeling of joy.'"^[51] Justice Thurgood Marshall would later call him "a great chief justice".^[21]

During confirmation hearings, Senator Edward Kennedy challenged Rehnquist on his unwitting ownership of property that had a restrictive covenant against sale to Jews^[63] (such covenants were held to be unenforceable under the 1948 Supreme Court case Shelley v. Kraemer). Despite this and other controversies, including a concern over his membership in the Alfalfa Club (which at the time did not allow women to join^[64]), the Senate confirmed his appointment by a 65–33 vote, and he assumed the office on September 26. Rehnquist's seat as an associate justice was filled by newly appointed Antonin Scalia.

In 1999, Rehnquist became the second chief justice (after Salmon P. Chase) to preside over a presidential impeachment trial, during the proceedings against President Bill Clinton. In 2000, Rehnquist wrote a concurring opinion in Bush v. Gore, the case that effectively ended the presidential election controversy in Florida. He concurred with four other justices in that case that the Equal Protection Clause barred a "standardless" manual recount of the votes as ordered by the Florida Supreme Court.

In his capacity as chief justice, Rehnquist administered the Oath of Office to the following presidents of the United States:

• George H. W. Bush in 1989
• Bill Clinton in 1993 and 1997
• George W. Bush in 2001 and 2005

Leadership of the Court[edit]

Rehnquist's predecessor as chief justice, Warren Burger, had floundered as a leader, alienating his colleagues with his overbearing manner, his inability to effectively manage the justices' conference sessions, and abuse of his seniority—in particular, his tendency to change his vote on important cases so that he could maintain control over opinion assignments.^[65] Rehnquist, in sharp contrast, won over his fellow justices with his easygoing, humorous, and unpretentious personality, he also tightened up the justices' conferences, keeping the justices from going too long or off track and not allowing any justice to speak twice before all had spoken once, and gained a reputation for scrupulous fairness in assigning opinions: Rehnquist assigned no Justice (including himself) two opinions before everyone had been assigned one, and made no attempts to interfere with assignments for cases in which he was in the minority. Most significantly, Rehnquist successfully lobbied Congress in 1988 to give the Court control of its own docket, cutting back on mandatory appeals and certiorari grants in general.^[66]

Rehnquist added four yellow stripes to the sleeves of his robe in 1995, he was a lifelong fan of Gilbert and Sullivan operas, and after appreciating the Lord Chancellor's costume in a community theater production of Iolanthe he thereafter appeared in court with the same striped sleeves. (The Lord Chancellor was traditionally the senior member of the British judiciary.)^[67] His successor, Chief Justice John Roberts, chose not to continue the practice.^[68]

Federalism doctrine[edit]

Rehnquist was expected by scholars to push the Supreme Court in a more conservative direction during his tenure. One area many commentators expected to see changes was in limiting the power of the federal government and in increasing the power of state governments.^[69] However, legal reporter Jan Crawford says some of Rehnquist's victories toward the federalist goal of scaling back congressional power over the states had little practical impact.^[70]

Rehnquist voted with the majority in City of Boerne v. Flores (1997) and would later refer to that decision as precedent for requiring Congress to defer to the Court as regards interpretation of the Fourteenth Amendment (including the Equal Protection Clause) in a number of cases. Boerne held that any statute that Congress enacted to enforce the provisions of the Fourteenth Amendment (including the Equal Protection Clause) had to show "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end". The Rehnquist Court's congruence and proportionality theory replaced the "ratchet" theory that had arguably been advanced in Katzenbach v. Morgan (1966).^[71] According to the "ratchet" theory, Congress could "ratchet up" civil rights beyond what the Court had recognized, but Congress could not "ratchet down" judicially recognized rights. According to the majority opinion of Justice Anthony Kennedy, which Rehnquist joined in Boerne:

There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966), which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in §1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one.... If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means".

The Rehnquist Court's congruence and proportionality standard made it easier to revive older precedents preventing Congress from going too far^[72] in enforcing equal protection of the laws.^[73]

One of the Rehnquist Court's major developments involved reinforcing and extending the doctrine of sovereign immunity,^[74] which limits the ability of Congress to subject non-consenting states to lawsuits by individual citizens seeking money damages.

In both Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of Alabama v. Garrett (2001), the Court held that Congress had exceeded its power to enforce the Equal Protection Clause. In both those cases, Rehnquist was in the majority that held discrimination by states based upon age or disability (as opposed to race or gender) need satisfy only rational basis review as opposed to strict scrutiny.

Rehnquist at the National Archives Rotunda in 2003

Though the Eleventh Amendment by its terms applies only to suits against a state by citizens of another state, the Rehnquist Court often extended this principle to suits by citizens against their own states. One such case was Alden v. Maine (1999), in which the Court explained that the authority to subject states to private suits does not follow from any of the express enumerated powers in Article One of the Constitution, and therefore the Alden Court looked to the Necessary and Proper Clause to see if that Clause authorized Congress to subject the states to lawsuits by the state's own citizens. Rehnquist agreed with Justice Kennedy's statement that such lawsuits were not "necessary and proper":

Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.

However, the Court acknowledged that various amendments to the Constitution were intended to give Congress power to abrogate sovereign immunity, one of those amendments being the Fourteenth, and thus Congress may authorize suits for money damages pursuant to (for example) its power to enforce the Fourteenth Amendment, which includes the Equal Protection Clause.^{[citation needed]}

Rehnquist also led the Court toward a more limited view of Congressional power under the Commerce Clause of the U.S. Constitution, for example, he wrote for a 5-to-4 majority in United States v. Lopez, 514 U.S. 549 (1995), striking down a federal law as exceeding congressional power under the Clause.

Lopez was followed by United States v. Morrison, 529 U.S. 598 (2000), in which Rehnquist wrote the Court's opinion striking down the civil damages portion of the Violence Against Women Act of 1994 as regulating conduct that does not have a significant direct effect on interstate commerce. Rehnquist's majority opinion in Morrison also rejected an Equal Protection argument on behalf of the Act. All four dissenters disagreed with the Court's interpretation of the Commerce Clause, and two dissenters (Stevens and Stephen Breyer) also took issue with the Court's Equal Protection analysis. Regarding the Commerce Clause, Justice David Souter asserted that the Court was improperly seeking to convert the judiciary into a "shield against the commerce power".

Regarding the Equal Protection Clause, Rehnquist's majority opinion in Morrison cited precedents limiting the Clause's scope, such as United States v. Cruikshank (1876), which held that the Fourteenth Amendment applied only to state actions, not private acts of violence. Dissenting Justice Breyer, joined by Justice Stevens, agreed with the majority that it "is certainly so" that Congress may not "use the Fourteenth Amendment as a source of power to remedy the conduct of private persons". However, Breyer and Stevens took issue with another aspect of the Morrison Court's Equal Protection analysis: they argued that cases that the majority had cited (including United States v. Harris and the Civil Rights Cases regarding lynching and segregation respectively) did not consider "this kind of claim" in which state actors "failed to provide adequate (or any) state remedies". In response, the Morrison majority asserted that the Violence Against Women Act was "directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias".

The federalist trend set by Lopez and Morrison was seemingly halted by Gonzales v. Raich (2005), in which the court broadly interpreted the Commerce Clause to allow Congress to prohibit the intrastate cultivation of medicinal cannabis. Rehnquist, along with O'Connor and Thomas, dissented in Raich.

Rehnquist authored the majority opinion in South Dakota v. Dole (1987), upholding Congress's reduction of funds to states not complying with the national 21-year-old drinking age. Rehnquist's broad reading of Congress's spending power was also seen as a major limitation on the Rehnquist Court's push towards redistribution of power from the federal government to the states.

Stare decisis[edit]

Some commentators expected the Rehnquist Court to overrule several controversial decisions broadly interpreting the Bill of Rights,^[18] the Rehnquist Court, however, expressly declined to overrule Miranda v. Arizona in its decision in Dickerson v. United States. Rehnquist believed that federal judges should not impose their personal views on the law or stray beyond the intent of the framers by reading broad meaning into the Constitution; he saw himself as an "apostle of judicial restraint".^[18] TIME Magazine suggested, however, that Rehnquist violated this belief by overruling many cases, particularly from the Warren Court era.^[18] Columbia Law School Professor Vincent Blasi said of Rehnquist in 1986 that "[n]obody since the 1930s has been so niggardly in interpreting the Bill of Rights, so blatant in simply ignoring years and years of precedent."^[18] (In the same article, Rehnquist was quoted as retorting that "such attacks come from liberal academics and that 'on occasion, they write somewhat disingenuously about me'.")

Rehnquist was a foe of the Court's 1973 Roe v. Wade decision. In 1992, that decision survived by a 5–4 vote, in Planned Parenthood v. Casey, which relied heavily on the doctrine of stare decisis. Dissenting in Casey, Rehnquist criticized the Court's "newly minted variation on stare decisis", and asserted his belief "that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases".^[75]

Rehnquist was not reluctant to apply stare decisis in the fashion he believed appropriate, for example, in Dickerson v. United States (2000), Rehnquist voted to reaffirm the Court's famous decision in Miranda v. Arizona (1966) based not only on the notion of adhering to precedent but also on his belief that "the totality-of-the-circumstances test ... is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner." Shortly after Dickerson was decided, the Court dealt with another abortion case, this time dealing with partial birth abortion in Stenberg v. Carhart (2000). Again, a 5–4 decision, and again a dissent from Rehnquist urged that stare decisis should not be the sole consideration: "I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and continue to believe that case is wrongly decided."

Gay rights[edit]

Among the many closely watched decisions during Rehnquist's tenure was Romer v. Evans (1996). Colorado had adopted an amendment to the state constitution ("Amendment 2") that the Court majority said would have prevented any city, town, or county in the state from taking any legislative, executive, or judicial action to protect homosexual citizens from discrimination on the basis of their sexual orientation. Rehnquist joined the dissent, which argued that the Constitution of the United States says nothing about this subject, so "it is left to be resolved by normal democratic means", the dissent, written by Justice Scalia, argued as follows (some punctuation omitted):

General laws and policies that prohibit arbitrary discrimination would continue to prohibit discrimination on the basis of homosexual conduct as well. This ... lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more, it would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit.

The dissent mentioned the Court's then-existing precedent in Bowers v. Hardwick (1986), that "the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime." By analogy, the Romer dissent reasoned that:

If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct.

The dissent listed murder, polygamy, and cruelty to animals as behaviors that the federal Constitution allows states to be very hostile toward, and in contrast the dissent stated: "the degree of hostility reflected by Amendment 2 is the smallest conceivable." The Romer dissent added:

I would not myself indulge in ... official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes.

With the case of Lawrence v. Texas in 2003, the Supreme Court under Rehnquist went on to overrule Bowers. Rehnquist again dissented along with Scalia and Clarence Thomas, the Court's result in Romer had described the struck-down statute as "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests".^[76] The sentiment behind that statute had led to the court evaluating it with a "more searching" form of review.^[77] Similarly, in Lawrence, "moral disapproval" was found to be an unconstitutional basis for condemning a group of people,^[77] the Court protected homosexual behavior in the name of liberty and autonomy.^[77]

Rehnquist sometimes reached results favorable to homosexuals, for example voting to allow a gay CIA employee to sue on the basis of constitutional law for improper personnel practices (although barring suit on the basis of administrative law in deference to a claim of national security reasons),^[78] voting to allow same-sex sexual harassment claims to be adjudicated,^[79] and voting to allow the University of Wisconsin–Madison to require students to pay a mandatory fee that subsidized gay groups along with all other student organizations.^[80]

Civil Rights Act[edit]

Rehnquist voted with the majority in denying a private right to sue for discrimination based on race or national origin involving a disparate impact under title VI of the Civil Rights Act of 1964, in Alexander v. Sandoval (2001), which involved the issue of whether a citizen could sue a state for not providing driver's license exams in languages other than English. Sandoval cited Cannon v. University of Chicago (1979) as a precedent. The Court voted 5–4 that various facts (regarding disparate impact) mentioned in a footnote of Cannon were not part of the holding of Cannon, the majority also viewed it as significant that §602 of Title VI did not repeat the rights-creating language (race, color, or national origin) in §601.

Religion clauses[edit]

In 1992, Rehnquist joined Lee v. Weisman's dissenting opinion that the Free Exercise Clause of the First Amendment to the Constitution only forbids government from preferring one particular religion over another.^[81] Justice Souter wrote a dissent specifically addressed to Rehnquist on this issue in 1992.^[81]

Rehnquist also led the way in allowing greater state assistance to religious schools, writing for another 5-to-4 majority in Zelman v. Simmons-Harris. In Zelman, the Court approved a school voucher program that aided church schools along with other private schools.

In June 2005, Rehnquist wrote the plurality opinion upholding the constitutionality of a display of the Ten Commandments at the Texas state capitol in Austin, the case was Van Orden v. Perry. Rehnquist wrote:

Our cases, Janus like, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history.... The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.

This decision was joined by Justices Scalia, Thomas, Breyer, and Kennedy.

First Amendment[edit]

University of Chicago Law School Professor Geoffrey Stone explains that Rehnquist was by an impressive margin the member of the Supreme Court least likely to invalidate a law as violating "the freedom of speech, or of the press".^[82] Justice Burger, who was chief justice when Rehnquist started as an associate justice, was 1.8 times more likely to vote in favor of the First Amendment; Scalia, 1.6 times; Thomas, 1.5 times.^[82] Excluding unanimous Court decisions, Rehnquist voted to reject First Amendment claims 92% of the time;^[82] in issues involving freedom of the press, Rehnquist rejected First Amendment claims 100% of the time.^[82] Stone says:

There were only three areas in which Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving advertising, religious expression, and campaign finance regulation.^[82]

However, as he did in Bigelow v. Commonwealth of Virginia, Rehnquist voted against freedom of advertising if an advertisement involved birth control or abortion.

Fourteenth Amendment[edit]

Rehnquist wrote a concurrence agreeing to strike down the male-only admissions policy of the Virginia Military Institute, as violative of the Fourteenth Amendment's Equal Protection Clause.^[83][84] However, he declined to join the majority opinion's basis for using the Fourteenth Amendment, writing:

Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation.^[84]

This rationale supported facilities separated on the basis of gender:

It is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any—much less a comparable—institution for women.... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.^[84]

Rehnquist remained skeptical about the Court's Equal Protection Clause jurisprudence; some of his opinions most favorable to equality resulted from statutory rather than constitutional interpretation. For example, in Meritor Savings Bank v. Vinson (1986), Rehnquist established a hostile-environment sexual harassment cause of action under Title VII of the Civil Rights Act of 1964, including protection against psychological aspects of harassment in the workplace.

Legacy[edit]

Jeffery Rosen has argued that William Rehnquist's "tactical flexibility was more effective than the rigid purity of Scalia and Thomas."^[85] Rosen says:

In truth, Rehnquist carefully staked out a limbo between the right and the left and showed that it was a very good place to be, with exceptional efficiency and amiability he led a Court that put the brakes on some of the excesses of the Earl Warren era while keeping pace with the sentiments of a majority of the country—generally siding with economic conservatives and against cultural conservatives. As for judicial temperament, he was far more devoted to preserving tradition and majority rule than the generation of fire-breathing conservatives who followed him. And his administration of the Court was brilliantly if quietly effective, making him one of the most impressive chief justices of the past hundred years.

In The Partisan: The Life of William Rehnquist, biographer John A. Jenkins was critical of Rehnquist's history with racial discrimination. He noted that, as a private citizen, Rehnquist had protested the Court's decision in Brown v. Board of Education and as a justice, consistently ruled against racial minorities in affirmative action cases. Only when white males began to make reverse discrimination claims, did Rehnquist become sympathetic to equal protection arguments.^[86]

Charles Fried has described the Rehnquist Court's "project" as being "to reverse not the course of history but the course of constitutional doctrine's abdication to politics".^[87] Legal reporter Jan Greenburg has said that conservative critics noted that the Rehnquist court did little to overturn the left's successes in the lower courts, and in many cases actively furthered them.^[88]

However, in 2005 law professor John Yoo wrote: "It is telling to see how many of Rehnquist's views, considered outside the mainstream at the time by professors and commentators, the court has now adopted."^[89]

Personal health[edit]

After Rehnquist's death in 2005, the FBI honored a Freedom of Information Act request detailing the Bureau's background investigation prior to Rehnquist's nomination as chief justice, the files reveal that for a period, Rehnquist had been addicted to Placidyl, a drug widely prescribed for insomnia. Placidyl can be addictive, and it was not until he was hospitalized that doctors learned of the depth of his dependency.

Rehnquist was prescribed Placidyl by Dr. Freeman Cary, a physician at the U.S. Capitol, for insomnia and back pain from 1972 through 1981 in doses exceeding the recommended limits, the FBI report concluded, however, that Rehnquist was already taking the drug as early as 1970.^[90] By the time he sought treatment, Rehnquist was taking three times the prescribed dose of the drug nightly,^[91] on December 27, 1981, Rehnquist entered George Washington University Hospital for treatment of back pain and dependency on Placidyl. There, he underwent a month-long detoxification process.^[91] While hospitalized, he had typical withdrawal symptoms, including hallucinations and paranoia, for example, "One doctor said Rehnquist thought he heard voices outside his hospital room plotting against him and had 'bizarre ideas and outrageous thoughts', including imagining 'a CIA plot against him' and seeming to see the design patterns on the hospital curtains change configuration."^[92]

For several weeks prior to hospitalization, Rehnquist had slurred his words, but there were no indications he was otherwise impaired.^[90][93] Law professor Michael Dorf has observed that "none of the Justices, law clerks or others who served with Rehnquist have so much as hinted that his Placidyl addiction affected his work, beyond its impact on his speech."^[94]

Declining health and death[edit]

An ailing Chief Justice Rehnquist administers the presidential oath of office to President George W. Bush at his inauguration in 2005, as First Lady Laura Bush looks on. Note: Rehnquist's addition of the gold stripes on his robes

On October 26, 2004, the Supreme Court press office announced that Rehnquist had recently been diagnosed with anaplastic thyroid cancer; in the summer of 2004, Rehnquist traveled to England to teach a constitutional law class at Tulane University Law School's program abroad. After several months out of the public eye, Rehnquist administered the oath of office to President George W. Bush at his second inauguration on January 20, 2005, despite doubts over whether his health would permit his participation. He arrived using a cane, walked very slowly, and left immediately after the oath itself was administered.^[95]

After missing 44 oral arguments before the Court in late 2004 and early 2005, Rehnquist appeared on the bench again on March 21, 2005,^[96] during his absence, however, he remained involved in the business of the Court, participating in many of the decisions and deliberations.^[97]

On July 1, 2005, Rehnquist's colleague Sandra Day O'Connor announced her impending retirement from her position of associate justice, after consulting with Rehnquist and learning that he intended to remain on the Court. Commenting on the frenzy of speculation over his retirement, Rehnquist joked with a reporter who asked if he would be retiring, "That's for me to know and you to find out."^[98]

Rehnquist died at his Arlington, Virginia, home on September 3, 2005, just four weeks before his 81st birthday. Rehnquist was the first member of the Supreme Court to die in office since Justice Robert H. Jackson in 1954 and the first chief justice to die in office since Fred M. Vinson in 1953.

On September 6, 2005, eight of Rehnquist's former law clerks, including Judge John Roberts, his eventual successor, served as pallbearers as his casket was placed on the same catafalque that bore Abraham Lincoln's casket as he lay in state in 1865.^[99] Rehnquist's body remained in the Great Hall of the Supreme Court until his funeral on September 7, 2005, a Lutheran service conducted at the Roman Catholic Cathedral of St. Matthew the Apostle in Washington, D.C. Rehnquist was eulogized by President George W. Bush and Justice Sandra Day O'Connor, as well as by members of his family.^[100] The Rehnquist funeral was the largest gathering of political dignitaries at the cathedral since the funeral of President John F. Kennedy in 1963. Rehnquist's funeral was followed by a private burial service, in which he was interred next to his wife, Nan, at Arlington National Cemetery.^{[101][102][103]}

Replacement as chief justice[edit]

Rehnquist's death, just over two months after O'Connor announced her impending retirement, left two vacancies to be filled by President George W. Bush, on September 5, 2005, Bush withdrew the nomination of Judge John Roberts of the D.C. Circuit Court of Appeals to replace O'Connor as associate justice, and instead nominated him to replace Rehnquist as chief justice. Roberts was confirmed by the U.S. Senate and sworn in as the new chief justice on September 29, 2005. Roberts had clerked for Rehnquist in 1980–1981.^[104] O'Connor, who had made the effective date of her resignation the confirmation of her successor, continued to serve on the Supreme Court until the confirmation and swearing in of Samuel Alito in January 2006.

Eulogizing his predecessor in the Harvard Law Review, Roberts wrote that Rehnquist was "direct, straightforward, utterly without pretense—and a patriot who loved and served his country, he was completely unaffected in manner."^[105]

Family life[edit]

Rehnquist's paternal grandparents immigrated separately from Sweden in 1880, his grandfather Olof Andersson, who changed his surname from the patronymic Andersson to the family name Rehnquist, was born in the province of Värmland; his grandmother was born Adolfina Ternberg in Vreta Kloster (parish) in Östergötland. Rehnquist is one of two chief justices of Swedish descent, the other being Earl Warren, who had Norwegian and Swedish ancestry.^[106]

Rehnquist married Natalie "Nan" Cornell on August 29, 1953, the daughter of a successful San Diego physician, she worked as an analyst on the CIA's Austria desk before their marriage.^[107] The couple had three children: James, a lawyer and former college basketball star, Janet, a lawyer, and Nancy, an editor (including of her father's books) and homemaker.^[108][109] Nan Rehnquist died on October 17, 1991, aged 62, from ovarian cancer,^[110] she was also survived by nine grandchildren,^[111] one of whom, Natalie Lynch, delivered a eulogy at Rehnquist's funeral.^[112]

Shortly after moving to Washington, D.C., the Rehnquists purchased a home in Greensboro, Vermont, a rural community where they spent many vacations.^[113]

Books authored[edit]

• Rehnquist, William H. (2004). The Centennial Crisis: The Disputed Election of 1876. New York: Knopf Publishing Group. ISBN 0-375-41387-1. 
• Rehnquist, William H. (1998). All the Laws but One: Civil Liberties in Wartime. New York: William Morrow & Co. ISBN 0-688-05142-1. 
• Rehnquist, William H. (1992). Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson. New York: Knopf Publishing Group. ISBN 0-679-44661-3. 
• Rehnquist, William H. (1987). The Supreme Court: How It Was, How It Is. New York: William Morrow & Co. ISBN 0-688-05714-4. 
• Revised edition: Rehnquist, William H. (2001). The Supreme Court: A new edition of the Chief Justice's classic history. New York: Knopf Publishing Group. ISBN 0-375-40943-2. 

See also[edit]

• Demographics of the Supreme Court of the United States
• List of Justices of the Supreme Court of the United States
• List of law clerks of the Supreme Court of the United States
• List of United States Chief Justices by time in office
• List of U.S. Supreme Court Justices by time in office
• United States Supreme Court cases during the Burger Court
• United States Supreme Court cases during the Rehnquist Court

References[edit]

Further reading[edit]

External links[edit]

Wikisource has original text related to this article: William Rehnquist

Wikiquote has quotations related to: William Rehnquist

Wikimedia Commons has media related to William Hubbs Rehnquist.

• William Hubbs Rehnquist at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
• William Rehnquist at Ballotpedia
• Issue positions and quotes at OnTheIssues
• Appearances on C-SPAN
  • Booknotes interview with David Savage on Turning Right: The Making of the Rehnquist Supreme Court, June 28, 1992.
  • Booknotes interview with Rehnquist on Grand Inquests: The Historic Impeachments of Justice Samuel Chase and President Andrew Johnson, July 5, 1992.
• Profile at Answers.com
• "In Memoriam: William H. Rehnquist", 119 Harvard Law Review 2005 (tributes to Rehnquist)
• William Rehnquist at Find a Grave
• Original source William Rehnquist FBI file
• 1986 Senate confirmation hearing
• William Rehnquist's FBI files, hosted at the Internet Archive:
  • Part 1
  • Part 2
  • Part 3
  • Part 4
  • Part 5
  • Part 6
• Supreme Court Associate Justice Nomination Hearings on William Hubbs Rehnquist in November 1971 United States Government Publishing Office
• Supreme Court Chief Justice Nomination Hearings on William Hubbs Rehnquist in July 1986 United States Government Publishing Office

Opinions[edit]

• Supreme Court Justice Rehnquist's Key Decisions – The Washington Post
• The Legacy of William H. Rehnquist – Majority and Dissenting Opinions in Major Supreme Court Cases

Supreme Court of the United States

The Burger Court Chief Justice: Warren Earl Burger (1969–1986) 1972–1975: Wm. O. Douglas Wm. J. Brennan P. Stewart B. White T. Marshall H. Blackmun L. F. Powell Jr. Wm. Rehnquist 1975–1981: Wm. J. Brennan P. Stewart B. White T. Marshall H. Blackmun L. F. Powell Jr. Wm. Rehnquist J. P. Stevens 1981–1986: Wm. J. Brennan B. White T. Marshall H. Blackmun L. F. Powell Jr. Wm. Rehnquist J. P. Stevens S. D. O'Connor The Rehnquist Court Chief Justice: William Hubbs Rehnquist (1986–2005) 1986–1987: Wm. J. Brennan B. White T. Marshall H. Blackmun L. F. Powell Jr. J. P. Stevens S. D. O'Connor A. Scalia 1988–1990: Wm. J. Brennan B. White T. Marshall H. Blackmun J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy 1990–1991: B. White T. Marshall H. Blackmun J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter 1991–1993: B. White H. Blackmun J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas 1993–1994: H. Blackmun J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas R. B. Ginsburg 1994–2005: J. P. Stevens S. D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas R. B. Ginsburg S. Breyer