Rehnquist Court Chief Justice Has Tipped The Scales To The Power Of State Capitals And City Halls

Right before moving to the top of the highest court in the land, then-Associate Justice William Hobbs Rehnquist was known as “the Lone Ranger” because of his frequent solo dissents.

A dozen years later, he is a Lone Ranger no more. As the Supreme Court heads Monday into its 12th year under Chief Justice Rehnquist, it may justly be dubbed the Rehnquist Court.

Often the conservative trio of Rehnquist, Antonin Scalia and Clarence Thomas have been joined by centrists Sandra Day O’Connor and Anthony Kennedy to generate 5-4 victories that are slowly reshaping U.S. law in at least three areas: race, religion and states’ rights.

So far, this term’s docket is relatively drab - “plain vanilla,” said former Attorney General Richard Thornburgh. Heading the list are cases about whether sexual harassment between workers of the same gender is unlawful, whether lie-detector tests can be admitted as evidence and - potentially most far-reaching of all - when, if at all, employers can consider racial diversity in making job decisions.

Whatever happens this term, the direction, if not the legacy, of the Rehnquist Court has become clear.

It is hostile to government policies based on race, and it appears to be leading the nation away from affirmative action and closer to a colorblind legal landscape.

It is altering earlier interpretations of the religion clauses of the First Amendment, both by refusing to exempt churches from general laws and by drilling holes in the metaphorical wall that divides church and state.

It is re-examining the boundaries of power between the federal government and the states, demonstrating a new willingness to use its considerable muscle to slap down Congress and shift authority from Washington to state capitals and city halls.

In these and other areas of the law, the Rehnquist Court differs from its predecessors. When Warren Burger replaced Earl Warren as chief justice in 1969, he was expected to lead the court in rolling back the liberal doctrines of the Warren years.

It didn’t happen. It was the Burger Court that permitted affirmative action, approved busing as a remedy for school segregation and expanded the right of privacy to give women a right to choose abortion.

Many observers saw more continuity than conflict between the Warren and Burger courts. The Rehnquist Court, while incremental and cautious, behaves differently. It has dramatically cut its caseload, permitted lower courts to have the final word in many more cases, and struck down precedents and federal laws more boldly.

Walter Dellinger, a Duke University law professor and former acting U.S. solicitor general, said he was struck by the court’s “lack of discomfort” in overturning four acts of Congress last term, an unusually high number. Past courts, he said, usually expressed anguish whenever they dared to hurl their full judicial might at the work of the elected national legislature.

But it would be wrong to conclude that the Rehnquist Court, where close cases usually turn on the views of O’Connor and Kennedy, treads a consistently conservative path.

The Rehnquist Court has championed free speech, upheld abortion rights and refused to allow voters to deny legal protections to homosexuals.

University of Minnesota law professor Suzanna Sherry said the gay rights ruling was notable because it showed that the Rehnquist Court “recognizes true injustice when it sees it, and will not permit branding a group as dirty and not fit to associate with.” She calls it “the pariah principle.”

Still, while the Rehnquist Court condemns hostility toward minorities, it also distrusts policies that seem to favor them. Racial minorities, the winners of earlier years at the Supreme Court, have become losers in the Rehnquist Court.

Over the past decade, the Rehnquist Court has voted to narrow the scope of civil rights laws (rulings later overturned by Congress), struck down black voting districts, limited school desegregation programs and restricted federal affirmative action policies.

“For me, the biggest question at the court is how the struggle over race will be resolved,” said Rodney Smolla, who teaches constitutional law at the College of William and Mary in Virginia.

The Rehnquist Court is leaving an imprint on issues of religion, too. In previous decades, Rehnquist routinely protested as a more liberal court generally supported a solid wall of separation between government and religion.

Now he finds himself in a 5-4 majority in key church-state cases. Last June that majority, rejecting two Brennan decisions, ruled for the first time that public school teachers may instruct children on the grounds of religious schools during regular school hours.

Many scholars forecast the forging of a legal doctrine that would find no constitutional violation in a church-state partnership unless the government is coercing compliance or endorsing religion. If they are right, programs that enable parents to choose public or private schools would be declared constitutional - even if they mainly benefit religious schools.

“This is a court that is more skeptical of federal authority than any court in recent history,” said Steven Shapiro, national legal director of the American Civil Liberties Union.