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Book Review
| Craig M. Bradley, editor, The Rehnquist Legacy, New York: Cambridge University Press, 2006. Pp. xxi + 392. $80.00 cloth (ISBN 0-521-85919-0); $35.99 paper (ISBN 0-521-68366-1).
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| Is it too soon to parse the legacy of William Rehnquist? Not to Craig Bradley and his eighteen fellow law professors, contributors of essays on various aspects of the work of William Rehnquist and the Court which he headed for nineteen years. Nor to Linda Greenhouse, the Supreme Court correspondent for the New York Times, who has provided an excellent foreword on the phases of the Rehnquist Court. Unlike financial legacies, the scope of which are readily apparent immediately, intellectual and juridical legacies may take some time to mature fully. Even so, by virtue of his thirty-three years of service on the Court, William Rehnquist left a heap of grist for the professorial comment mill, and The Rehnquist Legacy is among the first of the milled products. |
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The essays are grouped into four broad topics: The First Amendment, Criminal Procedure, The Structure of Government, and The Scope of Fourteenth Amendment Rights. Some are quite engaging, some are pedestrian. Some contributors struggle to find anything positive in Rehnquist's work. Geoffrey Stone dismisses as "quite dismal" Rehnquist's free speech record, which he asserts "cannot be defended as principled, coherent, or even-handed [and] belies any plausible theory of originalism, judicial restraint, or principled constitutional interpretation" (21). Others are more laudatory. Richard Garnett notes that as "the civic, social, and political territory controlled by the Free Speech Clause grows, the amount shrinks that is governed democratically by the people ... or that is left under the direction of private persons, groups, and institutions," and draws the conclusion that Rehnquist's free speech oeuvre is a "reasonably consistent aversion to this result ... that is coherent, plausible, and normatively attractive" (28). You pay your money ($80 in hardcover) and you take your choice, but on the whole this collection is salted with authors whose political predilections are generally hostile to William Rehnquist. The result is a critical appraisal of Rehnquist's work, and among the critics are those professors, such as Lynn Baker, who might applaud the federalism work of the Rehnquist Court. (Baker is particularly sour about the lost opportunity presented by Guillen v. Pierce County to curb the scope of the spending power.) |
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The general theme that percolates through this collection is the claim that Rehnquist's work was shamelessly results-oriented, and not even very consistent in its drive toward the desired result. The impression created is that William Rehnquist was an ad hoc jurist, bereft of constitutional theory, and not even very consistent in reaching decisions congenial to his political goals. Again, Geoffrey Stone: "A cynic might say that Rehnquist's First Amendment reads, 'Congress shall make no law abridging the freedom of speech of corporations, the wealthy, or the church.' Beyond that, I can discern no unifying theory" (17). A few pages later, after Stone has praised Rehnquist for his opinion in Hustler v. Falwell, Stone explains this rare bit of free speech advocacy as purely the product of personal circumstance: Rehnquist relished humor, particularly the lampooning pen of the cartoonist, "[a]nd so, Justice Rehnquist's one great First Amendment opinion is a Rosebud" (24). Or, consider Mark Tushnet: "William Rehnquist's federalism was less than a constitutional doctrine or even ... a vision; it was instead an intuition that led him to particular results.... The difficulty with intuitions ... is that ... they rarely provide the basis for stable doctrine [and] in the end, we actually know rather little about what William Rehnquist's federalism is" (204). Finally, Yale Kamisar on Rehnquist's view of Miranda v. Arizona: "It is hard to believe that any Justice could [reject the core premises of Miranda] only to come to its rescue a quarter-century later. It is also hard to believe that any Justice could write an opinion ... advancing almost every argument conceivable for why Miranda ... announced a constitutional rule only to concur four years later in an opinion written by a colleague neither impressed by, nor even interested in, what that Justice had to say four years earlier. It is doubly astonishing when we are talking about the same Justice" (128). So it is that "the Chief Justice has probably contributed more to the confusion over Miranda than any other member of the Court" (128). |
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However unflattering the portrait, The Rehnquist Legacy is a comprehensive assessment of William Rehnquist's contribution to constitutional law. Whether he was an under-theorized intuitive in pursuit of political objectives or a consistent advocate of constitutional restraint to leave space for democratic majorities to govern, particularly at the state level, will not be resolved by this collection. That will take more time and distance. |
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| Calvin Massey
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| University of California, Hastings College of the Law |
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