The Intellectual Maturation and Ideological Legacy of William Rehnquist

By George Willmott

This book explores the pivotal career and judicial
legacy of William Rehnquist (1924-2005). With
the political polarization and controversial cases
swirling around the Supreme Court in recent years,
understanding the development of Rehnquist is
critical to anyone seeking to learn about modern
judicial conservatism and its origins. While the last
several years have marked perhaps the height of
judicial conservatism, the movement’s origins lie
with William Rehnquist.
“This fascinating book by a remarkably talented
young scholar provides an illuminating and
engaging history of Justice Rehnquist’s entire
intellectual life. A scholarly work but also an
entertaining read, the book is a unique biography
of William Rehnquist as well as a concise history
of the Supreme Court during his time.”
- Theodore W. Ruger
John H. Chestnut Professor
of Law and Former Dean,
University of Pennsylvania Law School

• Language: English
• Publisher: Archway Publishing
• Release date: May 20, 2024
• ISBN: 9781665758826

George Willmott

George Willmott was born in New York City, spent a decade in Portland, Oregon, and currently resides in Memphis, Tennessee. His interests include history, politics, and reading. This is his first book.

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Copyright © 2024 George Willmott.

All rights reserved. No part of this book may be used or reproduced by any means, graphic, electronic, or mechanical, including photocopying, recording, taping or by any information storage retrieval system without the written permission of the author except in the case of brief quotations embodied in critical articles and reviews.

This book is a work of non-fiction. Unless otherwise noted, the author and the publisher make no explicit guarantees as to the accuracy of the information contained in this book and in some cases, names of people and places have been altered to protect their privacy.

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ISBN: 978-1-6657-5881-9 (sc)

ISBN: 978-1-6657-5882-6 (e)

Library of Congress Control Number: 2024907183

Archway Publishing rev. date: 05/17/2024

CONTENTS

Preface

Acknowledgments

I.Introduction

II.Beginnings

III.Stanford

IV.Clerkship

V.Arizona

VI.The President’s Lawyer’s Lawyer

VII.Roe, Casey, and Dobbs

VIII.Affirmative Action in Higher Education

IX.The Death Penalty

X.Rehnquist, the Modern Court, and John Roberts’ Zenith

End Notes

Selected Bibliography

About the Author

PREFACE

In the wake of the controversy surrounding the Supreme Court since Roe v. Wade was overturned, I read many books about our nation’s highest court and William Rehnquist, including The Partisan: The Life of William Rehnquist by John Jenkins and The Brethren by Bob Woodward and Scott Armstrong. As I reflected on the characterization of Rehnquist and his time on the Supreme Court, I thought to myself, Is that really who Rehnquist was? I wondered if Rehnquist’s life’s work was being oversimplified in the hyper-partisan age in which we live and whether his influence on today’s Supreme Court, for better or worse (depending on your perspective), was being overlooked or minimized. That fundamental question inspired this project.

After a year of research, which included spending time at the Hoover Institution reviewing Rehnquist’s archives (documents and papers from his undergraduate, graduate, and law school years, as well as documents from his time on the Court) and engaging in email exchanges with several of his former clerks, I concluded that the existing accounts of Rehnquist’s life under-appreciated the depth of his intellect and convictions, not to mention his civility and respect for others. By telling the story of Rehnquist’s intellectual maturation, his conduct on the Court, and his post-mortem ideological impact, I hope this book reminds people that William Rehnquist was a principled and committed public servant, and the ideological tenor of the current Supreme Court majority can be traced directly to his life’s work.

Whether people agree with Chief Justice Rehnquist’s opinions or not, understanding the origins of the opinions is important. America is a nation built on the rule of law and understanding our laws in the context of our justices’ perspectives on the meaning and purpose of our Constitution is essential to being an informed citizen. This book attempts to share a deeper insight into the beliefs and impact of William Rehnquist, a man who had a significant impact on the still unfolding American story. I hope my work can provide valuable information and background to anyone seeking to learn about Rehnquist and the Supreme Court.

George Willmott

Memphis, Tennessee

May 2024

ACKNOWLEDGMENTS

I would like to thank the Hoover Institute for allowing me access to Chief Justice Rehnquist’s papers. I also wish to thank my family for supporting me while writing this book. In addition, I am most grateful to law professors and legal scholars Sandy Patrick (The Northwestern School of Law of Lewis and Clark College), Ted Ruger (The University of Pennsylvania Carey Law School), and Daniel Kiel (The University of Memphis Cecil C. Humphreys School of Law) who were instrumental during this process.

CHAPTER I

Introduction

O N JANUARY 21, 1973, A small article appeared in the Christian Crusade Weekly , one day before the Supreme Court decision in Roe v. Wade legalizing abortion nationwide was announced. The headline read Justice Rehnquist Says Too Few Hold ‘Deeply Held Convictions.’ The article went on to quote Rehnquist as stating that there are ‘even a smaller number of those who seem willing to speak out for their convictions.’ The young justice had apparently made these blunt statements to a group of clergymen in Washington, Dec 7. He cited Martin Luther’s actions at the Diet of Worms in 1521 as an inspiration: I would certainly think that one of the main reasons why Martin Luther was [so successful] that is [sic] because of his absolutely inflexible determination to follow what he thought was right in the face of overwhelming odds. ¹

The normally courtly and calm Rehnquist seems to have dropped his façade when speaking to these clergymen. Perhaps he was still raw from being one of only two dissenters in the Roe case. Or maybe the stress of a long first year on the bench had simply made him loosen his tongue for a few minutes. But Rehnquist was used to standing alone. His unique conservative views had stood out since his college years at Stanford. Of all the people in Washington, Bill Rehnquist would never be accused of not having deeply held convictions. His clerks later in the 1970s would buy him an action figure of the Lone Ranger as a tribute to his many sole dissenting opinions.² Indeed, the next 32 fruitful, though often frustrating, years of service on the highest court in the land would put his deeply held convictions in the spotlight. He was often on the dissenting side in the major ideological battles of the next three decades: abortion, affirmative action, and free speech. He was part of a few significant majority opinions, most notably in Lopez v. United States, but he was often left to pen dissent after unwavering dissent. But he also changed when he became chief justice, beginning to focus more on court unity and stare decisis (the idea that, for the most part, precedent should not be overruled). When he died in 2005, having served thirty-three years on the court, including nineteen as chief justice, he was remembered as a great man, but a figure whose ambitions for the remaking of the law in his own conservative mold were ultimately thwarted.

Rehnquist’s successor was a man who had witnessed Rehnquist’s struggles firsthand, a former clerk with an intellect as formidable as his old boss’s: John G. Roberts, Jr. Roberts had clerked for Rehnquist during the 1980 term, when Rehnquist was still a lone associate justice, often dissenting in vain. The ideologies of the two men are remarkably similar, a fact which has been made apparent by the conservative revolution of the Roberts Court. The views that Rehnquist held, once considered radical, have since entered the mainstream lexicon of the Republican legal movement. Rehnquist’s dissents in Roe, Grutter v. Bollinger (which upheld affirmative action), and a myriad of other cases now reflect where the law stands. Historical validation is not infrequent, but rarely has it occurred so quickly after a man’s death. The Trump appointments of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett have remade the court into a body-politic that leans significantly to the right.

How did we get here? How is it possible that less than two decades after his death, the Roberts Court has achieved many of the landmark judicial stances that Rehnquist could not obtain in his own lifetime? To answer these questions, one must look past the era of the Roberts Court, past Roe, and all the way back to when the formidable intellect of William Rehnquist was just starting to develop, and the future justice was beginning to formulate the legal doctrines that would one day be carried out by both him and Roberts.

It is Rehnquist’s views on the important legal issues of today that have been enshrined into law. One can hear his dissents echoed in Samuel Alito’s opinion overturning Roe, Roberts’ opinion striking down race-based admissions policies in higher education, and even in the Supreme Court’s shadow docket that often decides whether death row inmates live or die. Rehnquist had a long and thorough legal and political education, attending Stanford for his bachelor’s, master’s, and law degrees, studying political science at Harvard, and clerking for one of the most famous justices of his era, Robert Jackson. The road that took him to the beliefs he eventually held so deeply was a winding one, with many different influences and mentors pushing him towards conservatism. But it is the intellectual maturation of William Rehnquist that meshes so perfectly with the goals of the modern court, and if one wishes to understand John Roberts, his colleagues, and the decisions they make, how Rehnquist became the conservative stalwart that he did must be clearly understood.

What John Roberts gleaned from his apprenticeship under William Rehnquist is also an integral part of the story of the current court. His views parallel Rehnquist’s in most respects, but the few exceptions are fascinating, providing an insightful look at how the Federalist Society and other conservative legal groups have influenced the judicial system. Rehnquist and Roberts both fought a losing battle in court culture wars, as the more socially liberal Anthony Kennedy authored opinions in both Lawrence v. Texas (an opinion that affirmed gay rights) and Obergefell v. Hodges (that legalized same-sex marriage) that each man vigorously dissented from. Both showed disdain for the constitutional basis for affirmative action that gave applicants an advantage in college admissions based on race-Rehnquist opposed the entire concept his whole career on the bench, but simply never had the votes to do anything about it. However, Roberts continued to carry the torch of opposition to affirmative action after Rehnquist’s death, and he did eventually have the votes. In June 2023, Roberts’ landmark opinion in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College struck down preferences based on race in college admissions as unconstitutional.

The Rehnquist Court is often misunderstood as a stopgap of sorts between the ideologically flexible Burger Court and the more conservative era of the Roberts Court. Viewing him in this somewhat passive role completely misunderstands the groundbreaking intellectual work he did in bringing about the conservative legal revolution. When he arrived on the court in early 1972, it was still made up of aging liberal lions and Nixon appointees whose conservative ideology could charitably be described as pliable. By the time he died in 2005, Rehnquist has laid the ideological and legal framework for the groundbreaking Roberts Court of today. Learning more about how he came to be the ardent champion of lonely conservative causes in the 1970s is the roadmap to understanding the conservative justices of today.

CHAPTER II

Beginnings

T HE 1920S WERE A GOLDEN age for conservatism. Calvin Coolidge was president for most of the decade, and he succinctly summed up the roaring twenties by saying, The business of America is business. The 1920s were a time of individualism, as ‘government minimalism’ reached its height and Americans truly believed in the concept of the American dream. As Paul Johnson noted in his book, A History of the American People, the United States was virtually the only country in the 1920s which decreased the amount of government intervention in all facets of life. Governments ranging from Italy to China all exerted significantly more power over their citizens, but America loosened its grip on the people. Laissez-faire economics seemed to be making a comeback, as the formidable Progressives of the