Looking back on Rehnquist

While it's too soon to start ordering flowers for Chief Supreme Court Justice William Rehnquist's funeral, the LA Times has an editorial today which offers a fairly good look at his legacy. (On a personal note on behalf of bloggers and pundits everywhere, if nothing else, it would be good to have a Chief Justice with a name that's easier to spell. *sigh*) There is a lot to be said for the man, both good and bad. For one thing, I was completely unaware of his love of civil war era law, and I never really noticed that he tends to quote it extensively in his opinions. He also was apparently a big proponent of "big brother."

Rehnquist found his politics early, in dinner-table discussions with his Milwaukee parents and, after Pearl Harbor, as a neighborhood block captain responsible for reporting "subversive activities" to the police. His interest in history, forged in high school reenactments of the nation's founding, has endured in his writings, on the bench and off.

In those writings, Rehnquist will often hearken back to the period after the Civil War. Many think of the Reconstruction era as one of brutal repression of minorities and a pinched view of the federal government. Rehnquist, however, finds his legal and ideological touchstones in those years: states' rights, a narrow view of congressional authority and a bone-deep skepticism about the notion that law should protect private behavior. As a Supreme Court clerk, Rehnquist wrote memos urging his boss, Justice Robert H. Jackson, to dissent in voting-rights and school desegregation cases.

At the end of the day, however, allowing Bush to replace Rehnquist with another conservative judge really isn't going to tip the scales of the court all that much. The only question is, who will take the prized seat as Chief Justice?

The selection of Rehnquist's successor, whenever it happens, will be a high-stakes battle. Both sides believe that important precedents, Roe among them, now hang on one vote. Rehnquist's replacement with another conservative may not much change the court's balance, but with eight of the nine justices over 65, the next vacancy could occur soon, allowing Bush to shift the court sharply right and finish the job Rehnquist started.