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Rehnquist and the Role of Proper Reasoning in Arriving at Results


Posted on October 31st, by Jonah in Updates. No Comments

John Jenkins’ recent biography of the late Chief Justice William Rehnquist has engendered anger from the right and even embarrassment from some on the left. The biography is titled The Partisan, but one could be forgiven for believing the title refers to the author rather than the subject. According to Jenkins, Rehnquist’s judicial philosophy was “nihilistic,” and “dismissive of…institutions that did not comport with his black-and-white view of the world.” Rehnquist, Jenkins tells us, yearned for “the simplicity of an earlier time when white men ruled.”
Although The Partisan does little to shed light on Rehnquist, it brings the former Chief Justice back into the public eye, thereby raising a question for conservatives today about the importance of the result a judge votes for versus the reasoning the judge uses to get there.
After all, Rehnquist had core beliefs about the judge’s role. He was a defender of states’ rights and a limited role for the government in the 1970’s, long before they became cool again. But Rehnquist did not have an rigid judicial philosophy in the way that Justices Scalia and Thomas do. Rehnquist was not a Textualist. He believed the Constitution limited the powers of the federal government, but he was not an Originalist in the mode of a Scalia or Thomas. Jan Crawford Greenberg wrote in her book on the Supreme Court that Scalia became disappointed that Rehnquist, toward the end of his tenure on the Court, seemed to care more about outcomes than reasoning. The two chiefs Rehnquist most admired were John Marshall and Charles Evans Hughes. Perhaps uncoincidentally, both were politicians before ascending to the Court.
Does Rehnquist’s reasoning matter, if he usually voted on the right side? Although one suspects Jenkins would have found a way to criticize Rehnquist regardless of his approach, the seeming lack of analytical rigor made it easier for many of Rehnquist’s critics to criticize him. Of course, the reasoning the Court adopts in an opinion can affect how future courts decide future cases. And if one believes that judges ought not be partisan, but instead use proper reasoning to decide the case in front of them, then reasoning matters a great deal. A judge is supposed to tell us what the law is, not what the judge wants it to be. To many conservatives, a major problem with the Warren and Burger Courts was not just that they handed down results abhorrent to them, but that the reasoning justifying such results was shoddy. If the reasoning of “activist” courts were bad, the antidote ought not be bad reasoning that yields a better result. Applying the law to a particular case, rather than instituting one’s social program, should be the role of the judge, and we should be skeptical of any judge who does otherwise, regardless of ideology.
That being said, if one is a conservative, one can feel good about Rehnquist. One might wonder if he receives too much credit for “steering the court to the right.” After all, would Scalia and Thomas vote with the “liberal justices” if, say, John Paul Stevens were Chief Justice? Just as Blackmun moved away from Burger over the years, maybe O’Connor would have moved further away from Rehnquist had he lacked the personal skills that made the arch-liberal Justice William Brennan call Rehnquist his “best friend” on the court. Moreover, his belief in tradition and slow change may have been appropriate for his era, as it paved the foundation for a more conservative court.
The lesson from Rehnquist is that reasoning matters, but overall view of the court in society and the ability to work with other justices matter, too. The court Rehnquist left was far from perfect, having handed down some poor precedents. But it was much better than the court Rehnquist joined.