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Friday, December 8, 2023

Rehnquist Plays Out Last Term in Losing Side

In what may be his last term, Chief Justice William H. Rehnquist's legacy of limiting the federal government's reach has been tarnished as the states' rights coalition he nurtured for more than a decade splinters on some major issues.

In what may be his last term, Chief Justice William H. Rehnquist’s legacy of limiting the federal government’s reach has been tarnished as the states’ rights coalition he nurtured for more than a decade splinters on some major issues.

The latest example is the Supreme Court decision that a federal marijuana ban trumps state laws legalizing the drug for the seriously ill.

Rehnquist also was on the losing side this year in cases that struck down state laws on wine purchases and declared it unconstitutional for states to execute juvenile killers.

“In case after case after case in recent years, the strong federalist position doesn’t seem to be winning out,” said Richard Garnett, a former Rehnquist clerk who teaches at Notre Dame Law School.

The chief justice has been the leader of the “federalist five,” the five conservatives who generally support states’ rights and advocate limited federal government interference.

Those five _ Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy and Clarence Thomas _ have voted together to strike down federal laws intended to protect female victims of violent crime and keep guns away from schools. Their reasoning is that those issues are better dealt with at the local level.

Scalia and Kennedy parted ways with the five in Monday’s ruling giving federal authorities the power to punish sick people who smoke marijuana to ease pain even if they live in states with “medical marijuana” laws.

Rehnquist, O’Connor and Thomas warned that the court was inviting Congress to pass intrusive laws.

A ruling for California in the marijuana case would have sealed the Rehnquist states’ rights legacy. But that was not expected, in part because the politics of the medical marijuana issue made it tougher for the five justices to stay together.

“So far he (Rehnquist) has been able to get five votes for very small, more or less symbolic restraints on Congress,” said Nelson Lund, a law professor at George Mason University. “It’s what I call fig leaf federalism.”

Thomas Goldstein, a Washington lawyer who specializes in the Supreme Court, said, “It’s not for lack of leadership. Instead, a majority of the court simply isn’t as conservative yet as the chief justice.”

The four justices who comprise the court’s more liberal wing _ John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer _ consistently vote together in cases that test the federal government’s power.

They were united on Monday in another decision that Rehnquist disagreed with, a ruling siding with the federal government in a dispute over ownership of submerged lands in Glacier Bay National Park. Rehnquist, Scalia and Thomas filed a partial dissent supporting Alaska.

Kennedy wrote the Alaska decision. The moderate conservative also wrote the 5-4 wine decision that critics said usurped a state’s right to control alcohol. And he penned the 5-4 ruling that threw out the sentences of 72 death row inmates who were under 18 when they committed their crimes.

Craig Bradley, a law professor at Indiana University and former Rehnquist law clerk, said the chief justice has “an incredibly strong-minded court to deal with.”

O’Connor, also more moderate than the chief justice, has stranded Rehnquist in major federalism cases before. Last year, for example, she joined the four liberal justices in ruling that disabled people can use a federal law to sue states over inadequate accommodations in courthouses.

Garnett said a big test may come next term, when justices consider the Bush administration’s challenge to Oregon’s unique law allowing physician-assisted suicide. Justices will also take up a case that asks if states can be sued for not accommodating disabled prisoners.

The next term starts in October, and the court may have a leadership change before then. Rehnquist has thyroid cancer and is 80. He has been on the court 33 years, and since 1986 has been chief justice.

Despite the recent losses, “the Rehnquist federalism jurisprudence is still there,” said Thomas Lee, a law professor at Fordham University and former clerk to Souter.


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