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Rehnquist: Consistent decision-making?

With the recent passing of Chief Justice William Rehnquist, scholars will debate his impact on American law and attempt to portend the future of American jurisprudence.

But while conservatives will laud his deference toward state government and the Supreme Court's shift away from judicial activism, his tenure has been characterized with inconsistent decision-making in the realm of state's rights and federal responsibility.

For example, in the manner that Rehnquist read the Constitution, states are permitted to outlaw abortion or pursue aid for religious schools, but are not allowed to give affirmative action preferences to racial minorities.

In his Roe v. Wade dissent, Rehnquist wrote, "The fact that a majority of States ... have had restrictions on abortions for at least a century is a strong indication ... that the asserted right to an abortion is not 'so rooted in the traditions and conscience of our people to be ranked as fundamental.'"

Alan Eder columnist

But he does not accord the judgment of the state such weight in Gratz v. Bollinger, the case regarding the University of Michigan's use of racial preferences in admissions policy. There, he contends that the "university's use of race is not narrowly tailored" enough "to achieve a compelling interest in diversity." Ironic, considering the policy intended to bring more minorities into the university.

In Zelman v. Simmons-Harris, Rehnquist delivered the majority opinion upholding an Ohio program allowing parents to use public tax money to send their children to religious schools.

Normally, the Establishment Clause in the First Amendment prevents the state from enacting laws that advance or inhibit religion, but in this case, 82 percent of the schools had a religious affiliation and 96 percent of the students participating in the program enrolled in religious schools. Yet Rehnquist writes that the program has a "valid, secular purpose."

Here, Rehnquist maintains that states may legislate on abortion or religion instruction but may not make laws regarding issues that he does not agree with, namely affirmative action. Such thought constitutes a double standard that cannot be reconciled with the conservative spirit of state authority.

Regardless of these occurrences, Justice John Paul Stevens maintained that Rehnquist brought "efficiency, good humor and absolute impartiality" to the job. While impartiality can always be questioned, Rehnquist served the court with the highest candor.

Bush's next two choices in justices loom on the horizon, and two big judicial shoes are waiting to be filled. Should John Roberts pass his Senate confirmation hearing and become the 16th chief justice of the United States, he would likely be in the same ideological mold as Rehnquist.

But nominating a justice with an originalist approach like Rehnquist's should be met with caution - it could potentially hinder social progress and harm civil liberties.

An approach too narrow in interpretation is in danger of being myopic in today's world of technology, terrorism and trade that the framers could never foresee. This was the intention behind Madison's creation of a flexible document that could be read in the spirit of all times.

Alan Eder is a senior majoring in Spanish and political science. He can be reached at letters@wildcat.arizona.edu.

Michael Huston columnist

Rehnquist: A legacy of justice

Saturday marked the passing of a great American and of an even greater American jurist. As a Supreme Court justice for more than 30 years, William H. Rehnquist left a legacy on the United States that permeates not only the whole of jurisprudence, but all facets of our culture.

For all of the brilliant opinions he wrote during his time as chief justice, his career will almost certainly be marked by a tempered dedication to the preservation of the Const tution as the ultimate authority in our nation.

There are those who would criticize the late chief justice for his apparent inconsistency on matters of states' rights, where Rehnquist often appeared to favor the ability of the states to legislate, yet supported the role of the federal government to govern other matters.

However, this argument fails to recognize the fact that the framers of our Constitution believed that exactly such a balance should exist between the rights of the states and the responsibilities of the federal government.

Chief Justice Rehnquist understood this fact and he emphasized its importance as he wrote opinions on some of the most important judicial matters of our time.

In a 2005 majority opinion in the matter of Van Orden v. Perry, which examined the legality of a Ten Commandments monument inside the Texas State Capitol, Rehnquist wrote, "Displays of the Ten Commandments bespeak the rich American tradition of religious acknowledgements," and that "simply having religious content or promoting a message consistent with religious doctrine does not run afoul the Establishment Clause."

Rehnquist also wrote a firmly dissenting opinion in the 1989 decision of Texas v. Johnson, in which he advocated the right of the states to criminalize the destruction of the American flag by saying that the flag occupies "a unique position as the symbol of our nation," and that "I cannot agree that the First Amendment invalidates ... the laws of 48 of the 50 states, which make criminal the public burning of the flag."

Rehnquist also wrote a dissenting opinion in the landmark 1973 decision Roe v. Wade, in which he explained his (correct) belief that the Constitution provides no specific right of abortion to women, and that that right cannot be inferred from the Constitution's provision of a "right to privacy" under the Fourth Amendment.

As an originalist, Rehnquist believed that the Constitution was indeed a living document, but that it remains steadfast and must be strictly upheld rather than interpreted indirectly as changing to suit the needs of current political trends.

There is little doubt that the president's nominee, John G. Roberts, will serve the court as a fine chief justice, but it is William H. Rehnquist's devotion to the rule of law, as well as the dignity and integrity with which he served his office, that will cause him to be remembered as one of the great Supreme Court justices in American history.

Michael Huston is a political science sophomore. He can be reached at letters@wildcat.arizona.edu.