Selected Opinions of Chief Justice Rehnquist

Congressional research reportSep 7, 2005

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Selected Opinions of

Chief Justice Rehnquist

September 7, 2005

name redacted and name redacted

Legislative Attorneys

American Law Division

Congressional Research Service ˜ The Library of Congress

Selected Opinions of Chief Justice Rehnquist

Summary

William H. Justice Rehnquist, appointed to the Supreme Court by President

Richard M. Nixon, joined the United States Supreme Court as an associate Justice

in 1972. In 1986, President Ronald Reagan nominated him to replace Chief Justice

Warren Burger, a position to which he was confirmed by the Senate by a vote of 65

to 33. When Chief Justice Rehnquist died on September 3, 2005, he had served 33

years on the Court.

William H. Rehnquist had a significant influence over a number of issues during

his years on the Supreme Court. While he is most often associated with the Court’s

renewed interest in federalism, he also made significant contributions in a number

of other areas, including separation of powers, church-state, criminal law, equal

protection and due process. While he was often a lone dissenter early in his career,

his influence grew as the composition of the Court changed, and as he persuaded

other Justices of the merits of his position, many of his views gained ascendancy.

Contents

Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Right To Privacy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Church-State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Criminal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Property Rights and Fifth Amendment "Takings" . . . . . . . . . . . . . . . . . . . . 13

Affirmative Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Fourteenth Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Selected Opinions of Chief Justice

Rehnquist

William H. Justice Rehnquist, appointed to the Supreme Court by President

Richard M. Nixon, joined the United States Supreme Court as an associate Justice

in 1972. In 1986, President Ronald Reagan nominated him to replace Chief Justice

Warren Burger, a position to which he was confirmed by the Senate by a vote of 65

to 33. When Chief Justice Rehnquist died on September 3, 2005, he had served 33

years on the Court.

William H. Rehnquist had a significant influence over a number of issues during

his years on the Supreme Court. While he is most often associated with the Court’s

renewed interest in federalism, he also made significant contributions in a number

of other areas, including of separation of powers, church-state, criminal law, equal

protection and due process. While he was often a lone dissenter early in his career,

his influence grew as the composition of the Court changed, and as he persuaded

other Justices of the merits of his position, many of his views gained ascendancy.

What follows is a discussion of selected opinions authored by Chief Justice

Rehnquist. Given the Chief Justice’s long tenure on the Court, our selection of

opinions covers only a portion of those he authored, including significant dissents.

Federalism

During Chief Justice Rehnquist's early years on the Court in the 1970s, there

were growing conflicts between state governments and the federal government. The

federal government was expanding in size, while imposing new mandates on states.

Because of these new responsibilities, state governments developed increased

administrative capacities, and were soon arguing for greater control over many of

state/federal programs. However, this was also a time of increasing federal controls

over states.

For instance, the Economic Stabilization Act of 1970 was used by President

Nixon to reduce a raise that had been promised to Ohio state employees. This action

was challenged in the case of Fry v. United States.1 In Fry, the Supreme Court

considered the argument that the states should be immune from federal regulation.

In a brief opinion, the majority reasserted, based on prior case law, that states are not

immune from federal regulation under the Commerce Clause merely because of their

sovereign status.

421 U.S. 542 (1975).

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Justice Rehnquist, who was then new to the bench, wrote a dissent in this case.2

He argued that, while the Commerce Clause might apply to the states, the states

should also have a positive constitutional defense against such regulation. Under

Justice Rehnquist's reasoning, if the federal government was allowed to impose any

type of regulation on a state, this would eliminate the sovereignty of the state.

Although he did not fully articulate the limits which were suggested by state

sovereignty, he did argue that there had to be a logical limit to how far the federal

government could go. No other Justice, however, joined his dissent.

However, this soon changed. In 1976, the Court decided the case of National

League of Cities v Usery,3 which dealt with the Fair Labor Standards Act and the

question of whether the federal government could impose minimum wage and

overtime requirements for state employees. Justice Rehnquist managed to attract

four more votes to his position by distinguishing the temporary freeze on state

employee wages in Fry from the long-term reordering of the economic priorities of

the states in National League of Cities. Justice Rehnquist's opinion carefully

considered the economic impact of the minimum wage and overtime requirements,

and made the case that the intrusion on the state was far greater than was the case in

Fry.

The coalition assembled by Chief Justice Rehnquist crumbled, however, when

Justice Blackmun (who in a concurrence in National League of Cities had advocated

a balancing approach to federal-state relations),4 reversed his position. In 1985,

Justice Blackmun authored an opinion in Garcia v. San Antonio Metropolitan Transit

Authority5 which overruled National League of Cities. Garcia concluded that the

National League of Cities test for "integral operations" in areas of traditional

governmental functions had proven impractical, and that federalism disputes were

to be considered political questions.

Consequently, for the next 10 years, Justice Rehnquist had to make his

federalism arguments from dissent. For instance, in Nevada v. Hall,6 the Court

considered whether one state could be sued in the courts of another state. While the

Court allowed such suits, Justice Rehnquist suggested that previous case law

supported the concept that "unconsenting states are not subject to the jurisdiction of

the courts of other States."7 This was the beginning of a line of reasoning that led to

the rebirth of 11th Amendment state sovereign immunity. In Hall, Justice Rehnquist

based his dissent on "the implicit ordering of relationships within the federal system

necessary to make the Constitution a workable governing charter."8

421 U.S. at 551-559

426 U.S. 833 (1976).

426 U.S. at 856.

469 U.S. 528 (1985).

440 U.S. 410 (1979).

440 U.S. at 437.

440 U.S. at 433.

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By 1995, however, the Court’s configuration that was to last until 2005 was in

place. In that year, Chief Justice Rehnquist authored the Court’s opinion in United

States v. Lopez,9 which brought into question the extent to which Congress can rely

on the Commerce Clause as a basis for federal legislation. Under the Gun-Free

School Zones Act of 1990, Congress made it a federal offense for "any individual

knowingly to possess a firearm at a place that the individual knows, or has reasonable

cause to believe, is a school zone."10 In Lopez, the Court held that, because the act

neither regulated a commercial activity nor contained a requirement that the

possession was connected to interstate commerce, the act exceeded the authority of

Congress under the Commerce Clause. The Lopez case was significant in that it was

the first time since 1937 (with the possible exception of Usery) that the Supreme

Court struck down a federal statute purely based on a finding that the Congress had

exceeded its powers under the Commerce Clause.

The five justices who decided Lopez (Chief Justice Rehnquist, Justices Scalia,

Thomas, Kennedy and O'Connor) became instrumental in a number of other

federalism cases.11 For instance, these four associate Justices joined an opinion

authored by Chief Justice Rehnquist in United States v. Morrison12 which invalidated

a portion of the Violence Against Women Act allowing a party to obtain damages

from a person who commits a gender-motivated crime.13 Applying its holding in

Lopez, the Court concluded that the activity regulated by the act could not be

classified as “economic activity,” and consequently was not amenable to federal

regulation under the Commerce Clause.

Of particular note was that in Morrison, unlike in Lopez, there were numerous

congressional findings as to the effect of gender-motivated crime on commerce.

Again writing for the Court, Chief Justice Rehnquist stressed that although findings

by the legislative branch can serve to illuminate the relationship between the

regulation and interstate commerce, constitutionality is for the Court to decide. In this

case, the Court determined that the legislative findings detailing the effects on

interstate commerce by gender motivated violence were based in large part on the

“costs of crime,” which was nearly identical to reasoning expressly rejected by the

514 U.S. 549 (1995).

18 U.S.C. §922(q)(1)A).

This was the voting configuration for the majority opinions in Seminole Tribe of Florida

v. Florida, 517 U.S. 44 (1996) (Article I powers such as the power to regulate commerce

are insufficient to abrogate Eleventh Amendment immunity); University of Alabama v.

Garrett, 531 U.S. 356 (2000) (no authority to enforce Title I of the Americans with

Disabilities Act against states as no pattern of unconstitutional state discrimination was

established); Alden v. Maine, 527 U.S. 706, 2248 (1999) (sovereign immunity can prevent

Congress from authorizing a state to be sued in its own courts without state’s permission);

Federal Maritime Comm'n v. South Carolina State Ports Authority, 535 U.S. 743 (2002)

(sovereign immunity can prevent Congress from authorizing a state to be sued in an quasijudicial proceeding before a federal agency without the state’s permission).

United States v. Morrison, 529 U.S. 598 (2000).

42 U.S.C. § 13981 (2000).

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Court in Lopez.14 This ruling seemed to reaffirm a trend in the Court to show less

deference to Congress in establishing the constitutional basis of legislation.15

However, Chief Justice Rehnquist was also the author of an opinion which

appeared to show the limits of the Court’s emphasis on federalism. Nevada

Department of Human Resources v. Hibbs,16 a 6-3 decision, involved the question of

whether the Family and Medical Leave Act of 1993 (FMLA) could be applied to the

states. In Hibbs, the Court held that Congress could use its enforcement authority

under the 14th Amendment17 to abrogate state sovereign immunity, based on a history

of state discrimination against women in employment.

Previously, the Court had been reluctant to find such an abrogation. For

instance, in Kimel v. Florida Board of Regents,18 which evaluated the application of

the Age Discrimination in Employment Act of 1967 against the states, the Court

noted that age discrimination was evaluated under a rational basis test.

Consequently, it was difficult for the Congress to show a pattern of unconstitutional

age discrimination by the states. Similarly, in the case of Board of Trustees v.

Garrett,19 which dealt with the American with Disabilities Act, the Court found no

pattern of unconstitutional discrimination against the disabled by the states.

In Hibbs, however, the Court held that Congress had the power to abrogate a

state's Eleventh Amendment immunity under the FMLA, so that a state employee

could recover money damages. The difference here is that the Court has found that

legislation which makes gender-based classifications is subject to a higher level of

scrutiny than the classifications made in Kimel and Garrett. Consequently, it was

easier for Congress to show a pattern of state constitutional violations regarding

women and employment, and the Court appeared to be more lenient in the types of

evidence it would consider to establish this. Justice Rehnquist’s opinion found that

Congress had established significant evidence of a long and extensive history of sex

discrimination with respect to the administration of leave benefits by the states, and

that history was sufficient to justify the enactment of the legislation under the 14th

Amendment. Still, by assigning the opinion to himself, Justice Rehnquist may have

sought to limit the scope of the decision.20

529 U.S. at 615 (stating that the reasoning of Congress would supply it with the power to

“regulate any crime as long as the nationwide, aggregated impact of that crime has

substantial effects on employment, production, transit or consumption”).

But see Gonzales v. Raich, ___ U.S. ___, 125 S. Ct. 2195 (2005) (holding that prohibition

on possession of medicinal marijuana was a “necessary and proper” component of larger

regulatory scheme to contain the flow of controlled substances in interstate commerce).

538 U.S. 721 (2003).

Section 5 of the 14th Amendment provides that “The Congress shall have power to

enforce, by appropriate legislation, the provisions of this article.”

528 U.S. 62 (2000).

531 U.S. 356 (2001).

But see Tennessee v. Lane, 541 U.S. 509 (2004) (upholding abrogation of state sovereign

(continued...)

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Separation of Powers

Chief Justice Rehnquist participated in several major cases in this area, often,

though not exclusively, appearing to align himself with what might be considered a

“formalistic view” of separation of powers.21 Justice Rehnquist joined with the

formalists in Buckley v. Valeo,22 which held that Congress could not appoint officials

to any executive agency; INS v. Chadha,23 which struck down Congress’s use of the

one-house legislative veto; and Bowsher v. Synar,24 which held that Congress had

unconstitutionally usurped executive branch functions by assigning executive duties

to the Comptroller General, a legislative branch officer. Similarly, Justice Rehnquist

had dissented from the Court’s holding Nixon v. Administrator of General Services,25

in which the majority rejected the “‘archaic view of separation of powers as requiring

three airtight compartments of government.’”26

Justice Rehnquist, however, joined the majority’s opinion in Commodities

Futures Trading Commission v. Schor, which held that Congress’s grant of authority

to the CFTC to entertain state law counterclaims in reparation proceedings did not

violate Article III of the Constitution.27 The majority opinion expressly rejected the

formalistic approach to separation of powers in favor of what has been characterized

by some scholars as a more functional or flexible approach.28

In 1988, in the case of Morrison v. Olsen,29 the Court was presented with a

series of constitutional issues surrounding the Independent Counsel provisions of the

(...continued)

immunity by Title II of the ADA based on a fundamental right of access to the courts).

A “formalist” approach to separation of powers focuses upon the text of the Constitution

in an effort to ascertain to what degree branch powers and functions may be intermingled.

See Peter R. Strauss, Formal and Functional Approaches to Separation of Powers

Questions: A Foolish Inconsistency? 72 CORNELL L. REV. 488, 489 (1987) [hereinafter

Strauss]. The arguable effect of this approach is to ascertain whether the activity in question

is judicial, executive, or legislative in nature and to circumscribe power that extends beyond

the constitutionally assigned functions of a particular branch. See id.

424 US 1 (1976).

462 US 919 (1983).

478 U.S. 714 (1986).

433 U.S. 425 (1977).

Id. at 443 (quoting Nixon v. Administrator of General Services, 408 F. Supp 321, 342

(D.D.C. 1976)).

478 U.S. 833 (1986).

“Functionalism,” generally argues that precise definitional boundaries cannot serve as a

basis for the resolution of separation of powers issues. Thus, a functionalist approach

permits the sharing of power between branches, and concerns itself mainly with the

preservation of the core function of a particular branch. See Strauss, supra note 21 at 489.

487 U.S. 654 (1988).

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Ethics in Government Act.30 Congress provided for the appointment of an

independent counsel, charged with the investigation of government officials

suspected of illegal activity, as well as for their subsequent prosecution. The statute

further provided that the independent counsel “may be removed from office, other

than by impeachment and conviction, only by the personal action of the Attorney

General and only for good cause, physical disability, mental incapacity, or any other

condition that substantially impairs the performance of such independent counsel’s

duties.”31 By the time the case reached the Supreme Court it contained not only

separation of powers questions, but also questions arising under both the

Appointments Clause32 and Article III of the Constitution.

The Court, in a groundbreaking opinion by Chief Justice Rehnquist, again

departed from its previous formalistic approach in favor of a more functional

position, holding that the independent counsel statute was a valid exercise of

Congress’s power. In reaching his conclusions, Chief Justice Rehnquist distinguished

Morrison from previous decisions in both Bowsher v. Synar33 and Myers v. Untied

States34 on the basis that the independent counsel statute before the Court “does not

involve an attempt by Congress itself to gain a role in the removal of executive

officials other than its established powers of impeachment and conviction.”35 The

Court found that removal authority was vested not in the Congress, but rather in the

Attorney General, an executive branch official who answers directly to the President,

subject only to the requirement that “good cause” be shown. The Court could find

no reason why “the President’s need to control the exercise of [the independent

counsel’s] discretion is so central to the functioning of the Executive Branch as to

require as a matter of constitutional law that the counsel be terminable at will by the

President.”36

Chief Justice Rehnquist’s opinion again focused on the fact that Congress did

not attempt to increase its own powers with respect to the removal of officers of the

United States in concluding that “this case simply does not pose a ‘danger of

congressional usurpation of Executive Branch functions.”37 Moreover, the Court

noted that the statute did not impermissibly grant the judiciary powers that could be

Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1867 (1978) (codified as

amended at 28 U.S.C. §§ 591-599 (1982 ed., Supp. V)).

Morrison, 487 U.S. at 683.

U.S. CONST. Art. II, § 2, cl. 2 (stating that “ [the President] shall nominate, and by and

with the advice and consent of the Senate, shall appoint ambassadors, other public ministers

and consuls, judges of the Supreme Court, and all other officers of the United States, whose

appointments are not herein otherwise provided for, and which shall be established by law:

but the Congress may by law vest the appointment of such inferior officers, as they think

proper, in the President alone, in the courts of law, or in the heads of departments”).

478 U.S. 714 (1986).

272 U.S. 52 (1926).

Morrison, 487 U.S. at 686.

Id. at 691-92.

Id. at 694 (quoting Bowsher v. Synar, 478 U.S. at 727).

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considered a usurpation of Executive functions because the judiciary could not have

acted independently of a request from the Attorney General. The extensive role that

the Attorney General, and by extension the President, possesses within the statute’s

framework provided, in the Court’s opinion, “the Executive Branch sufficient control

over the independent counsel to ensure that the President is able to perform his

constitutionally assigned duties.”38

The Right To Privacy

Chief Justice Rehnquist was an early skeptic of cases regarding the

constitutional right to privacy. For instance, he was one of only two dissenters to the

Court’s opinion in Roe v. Wade,39 finding that the right to an abortion did not fit

comfortably into either the text of the Constitution or the kind of “privacy”

protections which had previously been found protected under the Constitution.

Considering the specificity of the decision’s mandate, which divided pregnancy into

trimesters and treated regulation of each stage differently, Justice Rehnquist dissent

questioned whether the Court was undertaking a role more appropriately left to

legislatures.40

Justice Rehnquist’s skepticism regarding Roe can be further seen in his opinion,

concurring in part and dissenting in part, in the case of Planned Parenthood v.

Casey.41 In that opinion, joined by Justices White, Scalia and Thomas, the Chief

Justice concluded that Roe v. Wade had been incorrectly decided and that its

subsequent interpretation had been increasingly confused and uncertain. Instead of

the standard adopted by the plurality in Casey, which allowed for restrictions that

were not “unduly burdensome,” the Chief Justice would have upheld restrictions on

abortion where such procedures are rationally related to a legitimate state interest.42

However, Justice Rehnquist also had a part in the recognition of an arguably

new privacy right, the right to terminate medical treatment. In the case of Cruzan v.

Missouri Department of Health,43 the Court considered two legal issues novel to the

Supreme Court: first, whether an incompetent patient had the constitutional right,

even absent legislative approval, to consent to the withdrawal of nutrition and

hydration; second, whether this right could be exercised by a guardian, and what

standard of proof would be required to show that such a course of action was the

intent of the patient. In an opinion by Chief Justice Rehnquist, the Supreme Court

ultimately decided that the state may require clear and convincing evidence of a

patient’s wishes, and if the guardians of the patient did not have sufficient proof,

Id. at 696.

410 U.S. 113 (1973).

Id. at 173.

505 U.S. 833 (1992).

Id. at 966.

497 U.S. 261 (1990).

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nutrition and hydration could not be withdrawn.44 Perhaps reluctant to establish a new

constitutional right, Justice Rehnquist declined to explicitly endorse a “right to die,”

instead “presuming” the existence of such a right in order to reach the issue of

standard of proof. Regardless, this case is generally cited as the basis for the

establishment of this right, and has been central to other cases, such as the recent

litigation regarding Theresa Schiavo.45

Church-State

Since joining the Court in 1971, Chief Justice Rehnquist has played a major role

in developing the Court’s Establishment Clause jurisprudence.46 The three-part test

established by the Court’s 1971 decision in Lemon v Kurtzman47 has, in one form or

another dominated this area. Justice Rehnquist, however, has consistently advocated

a narrow interpretation of the Establishment Clause, one which has found

constitutional many of the more controversial practices to come before the Court in

recent years. Justice Rehnquist’s views are reflected in numerous cases concerning

the establishment of religion. The three cases highlighted here, however – involving

school vouchers, the pledge of allegiance, and public display of the Ten

Commandments – best reflect his overall view of a narrow conception of the

Establishment Clause’s prohibition on recognition of religion by government.48

In the case of Zelman v. Simons-Harris,49 the Court addressed the

constitutionality of the Ohio Pilot Scholarship Program, which was created as a

partial response to a 1995 court decision that directed Ohio to take control of

Cleveland’s failing public schools. The program, which permitted voucher funds to

be used to pay parochial school tuition, was challenged as a violation of the

Establishment Clause. Chief Justice Rehnquist, writing for the Court’s majority,

employed a version of the Lemon test, finding that there was no dispute that the

The Court found that it was not constitutionally required that guardians or family be

allowed to effectuate such a decision. Cruzan, 497 U.S. at 284. Rather, the Court

determined that not only could a state require that a patient’s own personal wishes be

examined, but that absent clear and convincing evidence of such wishes, a state could

decline to allow withdrawal of treatment.

See CRS Report RL32830 (pdf): “The Schiavo Case: Legal Issues;” CRS Report 97-244

(pdf): “The 'Right to Die': Constitutional and Statutory Analysis.”

See U.S. CONST., Amend. 1 (stating that “Congress shall make no law respecting an

establishment of religion...”).

403 U.S. 602 (1971) (stating that for a law or practice to be constitutional under the

Establishment Clause it must: (1) have a secular purpose; (2) not have a primary effect of

advancing or inhibiting religion and; (3) not unduly entangle the state with religion).

For an academic overview of the Rehnquist Court’s impact on the First Amendment’s

Religion Clauses, see Kent Greenawalt, The Rehnquist Court: Religion and the Rehnquist

Court, 99 NW. U. L. REV. 145 (2004).

536 U.S. 639 (2002).

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program served the “valid secular purpose of providing educational assistance to poor

children in a demonstrably failing public school system.”50

According to the Chief Justice, however, the central question was not whether

the program had a secular purpose, but rather whether it had an unconstitutional

effect of advancing or inhibiting religion. To determine this, the Chief Justice relied

on three prior cases involving indirect assistance to sectarian schools, namely,

Mueller v. Allen,51 Witters v. Washington Department of Services for the Blind,52 and

Zobrest v. Catalina Foothills School District.53 In each of these cases, the central

question for the Court was whether the aid was distributed on a religion-neutral basis

and whether the beneficiaries had a “true private choice” about whether to use the aid

at religious or secular schools.54

Applying the precedent to the Cleveland program, the Court held that Ohio’s

program provided “educational assistance directly to a broad class of individuals

defined without reference to religion, i.e., any parent of a school-age child who

resides in the Cleveland School District”55 and, therefore, according to the Chief

Justice, was consistent with the previous cases as a program of true private choice.

In Elk Grove Unified School District v. Newdow,56 commonly referred to as the

“Pledge of Allegiance” case, the Court’s majority opinion did not directly address the

merits of the case, choosing instead to focus on Mr. Newdow’s standing to challenge

the school district’s policy in federal court.57 The Chief Justice along with Justices

O’Connor and Thomas, however, concurred in the judgment reversing the Ninth

Circuit’s decision, but did so based upon findings that the phrase “under God” did

not violate the Establishment Clause of the First Amendment.

Relying on historical invocations of God, such as George Washington’s first

inaugural address, President Lincoln’s Gettysburg Address, and Woodrow Wilson’s

declaration of war against Germany, the Chief Justice concluded that “our national

Id. at 650.

463 U.S. 388 (1983).

474 U.S. 481 (1986).

509 U.S. 1 (1993).

Zelman, 536 U.S. at 652 (stating that “Mueller, Witters, and Zobrest ... make clear that

where a government aid program is neutral with respect to religion, and provides assistance

directly to a broad class of citizens who, in turn, direct government aid to religious schools

wholly as a result of their own genuine and independent private choice, the program is not

readily subject to challenge under the Establishment Clause.”)

Id. at 653. The Court rejected as irrelevant the statistics that 96% of scholarship recipients

enrolled in religious schools.

542 U.S. 1 (2004).

Elk Grove Unified School District v. Newdow, 542 U.S. 1, 124 S. Ct 2301, 2312 (holding

it was “improper for the federal courts to entertain a claim by a plaintiff whose standing to

sue is founded on family law rights that are in dispute when prosecution of the lawsuit may

have an adverse effect on the person who is the source of the plaintiff's claimed standing.”).

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culture allows public recognition of our Nation’s religious history and character.”58

Given the long history of public recognition of God, for the Chief Justice the only

remaining question was whether the recitation on the pledge impermissibly coerced

a religious act.59 Important to this point is the fact that under the challenged

California state law the recitation remained voluntary, and therefore, could not be

considered a coercive religious act such as was found in Lee v. Weisman. The Chief

Justice was unwilling to find that the phrase “under God” could be reasonably seen

as a religious act, thus, according to his opinion, it “cannot possibly lead to the

establishment of a religion or anything like it.”60

In Van Orden v. Perry,61 the Court was presented with a monument of the Ten

Commandments displayed on the grounds of the Texas State Capitol. An

Establishment Clause challenge seeking removal of the monument was brought by

an attorney who frequently encountered it as he was traveling to and from the Capitol

grounds. The Chief Justice, writing for himself and three other Justices, began his

analysis, as in Newdow, by citing numerous examples of “official acknowledgment

by all three branches of government of the role of religion in American life,” and

noting that “recognition of the role of God in our Nation’s heritage has also been

reflected in [its] decisions.”62

The Chief Justice’s opinion found that “acknowledgments of the role played by

the Ten Commandments in our Nation’s heritage are common throughout America,”

and cited numerous places where the Commandments can be found on government

buildings throughout Washington, DC.63 While he acknowledged that the Ten

Commandments are and remain inherently religious, the Chief Justice noted that

“[s]imply having religious content or promoting a message consistent with a religious

doctrine does not run afoul of the Establishment Clause.”64

Chief Justice Rehnquist distinguished this case from Stone v. Graham,65 which

struck down a Kentucky statute requiring the posting of a privately purchased copy

of the Ten Commandments on the wall of each public school classroom in the state,

by making a distinction between religious displays in a classroom context and the

“more passive” display of the Commandments at issue on the grounds of the Texas

Id. at 2319.

See Lee v. Weisman, 505 U.S. 577 (1992).

Newdow, 124 S. Ct. at 2320.

125 S. Ct. 2854 (2005).

Id. at 2861.

Id. at 2862-2863 (noting that the Ten Commandments are depicted in the United States

Supreme Court building, the Library of Congress, the National Archives, the Department

of Justice, the Ronald Reagan Building, both the Court of Appeals and the District Court for

the District of Columbia, and the Chamber of the United States House of Representatives.)

Id. at 2863.

449 U.S. 39 (1980).

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State Capitol.66 Noting the absence of the “particular concerns that arise in the

context of public elementary and secondary schools,” coupled with the fact that the

petitioner had walked past the monument for a number of years before bringing the

lawsuit, the Chief Justice determined that the monument in question was different

from the texts that confronted elementary school students every day in Stone.67 Thus

the Chief Justice held that the monument in question had a “dual significance,

partaking of both religion and government,” and, therefore, its inclusion among the

monuments on the Capitol grounds did not violate the Establishment Clause.68

Chief Justice Rehnquist also joined a dissent in the other Ten Commandments

case of his final Term, McCreary County v. ACLU of Kentucky.69 In McCreary, the

Court held that displays of the Ten Commandments in Kentucky county courthouses

violated the Establishment Clause. This dissent, authored by Justice Scalia,70 was a

broad-based attack on the Court’s Establishment Clause jurisprudence, challenging

the principle that government must be neutral between religion and “irreligion,”

asserting that government may favor monotheism in public displays and observances,

and criticizing the Lemon test and its applications.

Criminal Law

One of the mainstays of criminal procedure is the provision of Miranda rights

to criminal defendants. Recognizing that custodial interrogations are inherently

intimidating, the Supreme Court in Miranda v. Arizona71 set constitutional guidelines

for law enforcement agencies to use when conducting custodial interrogations, so as

to protect constitutional rights. These rights, including the Fifth Amendment right to

remain silent and the Sixth Amendment right to an attorney, must be verbally

explained to defendants who are taken into custody, in order to ensure that if such

rights are waived, that it is done voluntarily. This case was decided before Chief

Justice Rehnquist arrived on the Court.

Miranda has been the focus of significant criticisms, and it is not clear that,

absent stare decisis,72 Chief Justice Rehnquist would have supported the original

Van Orden, 125 S. Ct. at 2863-2864.

Id. at 2864.

Id.

125 S. Ct. 2722 (2005).

125 S. Ct. at 2748.

384 U.S. 436 (1966).

Stare decisis is the policy of courts to follow case law precedent. The Court is less

reluctant to overrule constitutional decisions than decisions interpreting statutes.

Nonetheless, the Court generally requires strong justification for overruling its earlier

constitutional decisions, looking to such factors as whether the rule of the earlier case has

been found "unworkable" or anachronistic due to other changes in the law, and whether the

rule can be removed "without serious inequity to those who have relied upon it." Planned

Parenthood v. Casey, 505 U.S. 833, 855 (1992).

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decision.73 Further, as the verbal requirements of Miranda may not have been

constitutionally required, but were rather a “prophylactic” measure to protect

underlying rights, an argument could be made that Congress had the authority to

amend the requirements. Nonetheless, in Dickerson v United States,74 when the Court

considered the constitutionality of 18 U.S.C. § 3501, a statute which in essence

reversed Miranda and made the admissibility of confessions turn solely on whether

they were made voluntarily, Chief Justice Rehnquist wrote an opinion invalidating

the statute. In the opinion, he noted that despite the invitation of the Court in

Miranda for the legislature to develop other methods of ensuring the voluntariness

of confessions, that the Congress had merely sought to overturn the original ruling,

which was held to be beyond the power of Congress to accomplish.75

Chief Justice Rehnquist also dissented from the Court’s major decisions limiting

application of capital punishment for persons of diminished capacity. The Chief

Justice consistently favored reliance on two categories of objective criteria (“the

work product of legislatures and sentencing jury determinations”)76 to determine what

is “cruel and unusual,” and disfavored reliance on foreign law or the Justices own

views. In Ford v. Wainwright,77 which held that the Eighth Amendment’s

prohibition on cruel and unusual punishment prohibits a state from executing

someone who is insane and that Florida’s procedures authorizing the governor to

make the determination fell short of due process, Justice Rehnquist dissented on the

basis that there was a common law tradition of leaving such issues to executive

clemency.78 A few years later, Chief Justice Rehnquist voted with the majority in

holding that the Eighth Amendment does not prohibit execution of the mentally

retarded,79 and that states likewise are not prohibited from executing persons who

were 16 or 17 years of age at the time they committed their offenses.80

Dickerson v. United States, 530 U.S. 428, 443 (2000).

530 U.S. 428 (2000).

Id. at 440.

Atkins v. Virginia, 536 U.S. 304, 324 (2002) (dissenting).

477 U.S. 399 (1986).

477 U.S. at 431. The Justice pointed out that Florida, like all other states in the Union,

prohibited execution of the insane, and devoted his dissent to arguing that Florida’s

procedures for determining whether a condemned prisoner is insane were also consistent

with common law traditions.

Penry v. Lynaugh, 492 U.S. 302 (1989). Chief Justice Rehnquist joined a concurring and

dissenting opinion by Justice Scalia arguing that, because execution of the mentally retarded

was not “unusual” (an insufficient number of states prohibited the practice), there was no

need to consider whether it was in accord “with the theories of penology favored by the

Justices of this Court.” 492 U.S. at 351.

Stanford v. Kentucky, 492 U.S. 361 (1989). The Chief Justice joined Justice Scalia’s

opinion, part of which was opinion of the Court and part of which was not, holding that the

pattern of state and federal laws did not establish a national consensus against executing 16

and 17-year-olds , and arguing against reliance on indicia of consensus other than statutes

and the behavior of prosecutors and juries.

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When the Court reversed its field, holding in 2002 in Atkins v. Virginia that a

national consensus had developed against execution of the mentally retarded, and

holding in 2005 in Roper v. Simmons that such a consensus had developed against

execution of juveniles under the age of 18, Chief Justice Rehnquist maintained his

position in dissent. Each time he joined broad-based dissents by Justice Scalia

challenging the Court’s “own evaluation of the issue” as well as its finding that a

national consensus had developed,81 and in Atkins he added his own dissent. Writing

separately to object to the Court’s reliance on “foreign laws, the views of professional

and religious organizations, and opinion polls,”82 the Chief Justice explained that

statutes and sentencing jury determinations “are the only objective indicia of

contemporary values firmly supported by our precedents, but “more importantly,”

that these democratic institutions “are better suited than courts to evaluating and

giving effect to the complex societal and moral considerations that inform the

selection of publicly acceptable criminal punishments.”83

Property Rights and Fifth Amendment "Takings"

Chief Justice Rehnquist frequently favored the side of the property owner in the

Fifth Amendment "takings" cases84 decided by the Court, most often joined by

Justices Scalia and Thomas. In the seminal case of First English Evangelical

Lutheran Church v. County of Los Angeles,85 for example, he wrote for the majority

that when the government is found by a court to have taken property through severe

regulation of its use, the government has the option of rescinding the regulation, but

must still pay for the temporary taking while the regulation was in effect. And in

Dolan v. City of Tigard,86 he wrote for the majority that to avoid being a taking, an

exaction condition on a development permit must display a "rough proportionality"

between the burden imposed on the land owner and the impact of the proposed

development on the community.

Most recently, Chief Justice Rehnquist joined a four-person dissent authored by

Justice O'Connor in the high-profile decision in Kelo v. City of New London.87 The

majority opinion held that the city's condemnation of private property, to implement

Justice Scalia’s dissent in Atkins objected to the “arrogance” he viewed as underlying the

Court’s assertion that “in the end our own judgment will be brought to bear on the question

of the acceptability of the death penalty.” 536 U.S. at 348. Justice Scalia was again

vehement on the subject in Simmons: “the real driving force” of the decision is the Court’s

“own judgment”; if the Court is going to rely on “evolving standards of decency,” it should

not “prescribe” those standards but instead should “discern them from the practices of our

people”. 125 S. Ct. at 1221, 1222.

536 U.S. at 322.

536 U.S. at 324.

The Takings Clause of the Fifth Amendment states: "[N]or shall private property be taken

for public use, without just compensation."

482 U.S. 304 (1987).

512 U.S. 374 (1994).

125 S. Ct. 2655 (2005).

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its area redevelopment plan aimed at invigorating a depressed economy, was a

"public use" satisfying the Takings Clause – even though the property might be

turned over to private developers. The majority opinion was based on a century of

Supreme Court decisions holding that the term "public use" in the Takings Clause

must be read broadly to mean "for a public purpose" – in this instance, revitalization

of the local economy. The dissenters, however, argued that even a broad reading of

"public use" does not extend to private-to-private transfers solely to improve the tax

base and create jobs. In strong language, Justice O'Connor, joined by Rehnquist and

others, declared that "[u]nder the banner of economic development," the majority

opinion makes "all private property ... vulnerable to being taken and transferred to

another private owner, so long as it might be upgraded." The Kelo decision has

triggered legislative proposals in most of the state legislatures and in Congress aimed

at discouraging or prohibiting the use of condemnation solely for economic

development.

Affirmative Action

One of the most contentious areas of affirmative action has been in the area of

preference in admissions of educational institutions. Over a quarter century ago, the

Supreme Court issued an opinion in the case of Regents of the University of

California v. Bakke.88 A controlling concurrence by Justice Powell in that case

concluded that the attainment of a diverse student body is "a constitutionally

permissible goal for an institution of higher education," noting that "[t]he atmosphere

of 'speculation, experiment, and creation' so essential to the quality of higher

education is widely believed to be promoted by a diverse student body.”89

Subsequently, many colleges and universities established affirmative action policies.

In Grutter v. Bollinger,90 a five Justice majority of the Justices held that the

University of Michigan Law School had a "compelling" interest in the "educational

benefits that flow from a diverse student body," which justified its consideration of

race in admissions to assemble a "critical mass" of "underrepresented" minority

students.

However, in the companion case of Gratz v. Bollinger,91 authored by Chief

Justice Rehnquist, six Justices decided that the University's policy of awarding "racial

bonus points" to minority applicants was not "narrowly tailored" enough to pass

constitutional scrutiny. Chief Justice Rehnquist noted that Justice Powell's opinion

called for evaluating an individual's ability to contribute to a student body in the

unique setting of higher education. Chief Justice Rehnquist interpreted this to mean

that individualized consideration of diverse characteristics was permissible, but that

automatic assignment of points to members of an "underrepresented minority" group

was not. Of particular concern was that the number of points assigned would ensure

that virtually every minimally qualified minority applicant would be admitted.

University of California Regents v. Bakke, 438 U.S. 265 (1978).

438 U.S. at 311.

539 U.S. 306 (2003).

539 U.S. 244 (2003).

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Ultimately, the Court concluded that there were limits on what procedures a

university could employ to achieve its desired goal of diversity.

Fourteenth Amendment

Over the years, the Supreme Court has recognized increased responsibilities of

the state governments to protect certain of their citizens. For instance, in Youngberg

v. Romeo,92 the Supreme Court held that an individual who was involuntarily

committed to a state institution for the mentally retarded had a constitutionally

protected liberty interest in safety, freedom of movement, and training within the

institution, and that the state was, within limits, required to protect such rights.

Similarly, the Court has noted that a prisoner has a liberty interest in receiving

medical care, since it is the only entity in a position to provide those services.93

In the case of Deshaney v. Winnebago County Department of Social Service,94

a child who had been the subject of numerous investigations by a local Department

of Social Service because of suspicions that he had been abused was severely beaten

by his father. A suit was brought against the Department alleging that since the state

had undertaken to protect Joshua from this danger, the state acquired an affirmative

"duty," enforceable through the Due Process Clause. The argument was made that,

based on this “special relationship,”failure to discharge this duty was actionable.

The Supreme Court took the case to resolve a split in the circuits. Chief Justice

Rehnquist wrote an opinion noting that previous findings of “special relationships”

had been based on the state having confined or otherwise restricted the actions of an

individual. However, the harm suffered by this child occurred not while he was in the

state's custody, but while he was in the custody of his natural father. The state played

no part in the creation of the danger, nor did it do anything to render the child more

vulnerable to them. Consequently, Chief Justice Rehnquist found that the state had

no constitutional duty to protect Joshua.95

457 U.S. 307 (1982).

Estelle v Gamble, 429 U.S. 97, 103 (1976).

489 U.S. 189 (1989).

This cases is now settled law, as illustrated by the Court’s opinion in Town of Castle Rock

v. Gonzales, 125 S. Ct. 2796 (2005).

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