Stone Says Rehnquist's Legacy Doesn't Measure Up
What was William Rehnquist's legacy as a Justice of the Supreme Court? Many people will address that question in the days and weeks to come. Here is a straightforward analysis of his record in cases involving the 1st Amendment's "freedom of speech, or of the press." In short, Justice Rehnquist showed no proper regard for the most fundamental right in the United States Constitution.
In his more than 30 years on the Supreme Court, Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the 1st Amendment claim only 20 percent of the time. In these same cases, the other justices with whom he sat (Blackmun, Brennan, Breyer, Burger, Douglas, Ginsburg, Kennedy, Marshall, O'Connor, Powell, Scalia, Souter, Stephens, Stewart, Thomas and White) voted to uphold the 1st Amendment claim 53 percent of the time. Thus, Rehnquist's colleagues were 2.6 times more likely than Rehnquist to hold a law in violation of "the freedom of speech, or of the press."
But this only scratches the surface. Even the Supreme Court has easy cases. These cases are best identified by unanimity. If all the justices agree that a law is constitutional or unconstitutional, an individual justice's vote does not tell us anything very interesting about his views. Sixty-three of the 259 cases were decided by unanimous vote. If we exclude those "easy" decisions, we find that Rehnquist voted to reject the 1st Amendment claim an astonishing 92 percent of the time. In these same cases, the other justices voted to uphold the 1st Amendment challenge 55 percent of the time. Thus, in non-unanimous decisions the other justices were six times more likely than Rehnquist to find a law in violation of "the freedom of speech, or of the press."
This may be misleading. Perhaps the "liberal" justices, such as Brennan, Douglas and Marshall, skewed the data. Before drawing any conclusions, we should therefore compare Rehnquist's voting record with those of his more "conservative" colleagues, such as Burger, Scalia and Thomas. That comparison shows that Burger was 1.8 times more likely than Rehnquist to vote in favor of the 1st Amendment, Scalia was 1.6 times more likely, and Thomas was 1.5 times more likely. Thus, during his tenure, Rehnquist was by an impressive margin the member of the Supreme Court least likely to invalidate a law as violating "the freedom of speech, or of the press."
Even more striking were Rehnquist's votes in cases involving freedom of the press. These decisions addressed such issues as whether the 1st Amendment guarantees a journalist-source privilege, whether the government may enjoin the publication of truthful information, and whether the press has a 1st Amendment right of access to certain places or information. In the non-unanimous decisions involving freedom of the press, Rehnquist rejected the constitutional claim 100 percent of the time. In more than 30 years on the Court, Rehnquist never once found a violation of freedom of the press in a non-unanimous decision.
There were only three areas in which Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving advertising, religious expression and campaign finance regulation. Rehnquist was 2.6 times more likely to invalidate laws restricting commercial advertising than laws restricting political or artistic expression. He voted to invalidate campaign finance legislation 67 percent of the time, and he voted to invalidate restrictions on religious expression 100 percent of the time. Indeed, in non-unanimous decisions, Rehnquist was 14.7 times more likely to vote to invalidate a law restricting commercial advertising, campaign expenditures, or religious expression than one involving any other aspect of "the freedom of speech, or of the press."
What all this leads me to conclude is that Rehnquist's record with respect to "the freedom of speech, or of the press" was dismal. Not only was he the justice least likely to protect these freedoms, but his general passivity toward these freedoms cannot be defended as principled, coherent or neutral. When all was said and done, Rehnquist's 1st Amendment belonged to corporations, wealthy political candidates, and churches. In this, at least, he won't be missed.
Geoffrey R. Stone is a law professor at the University of Chicago and the author of Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism.
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