Strauss Discusses Rehnquist's Legacy on Morning Edition

September 5, 2005

RENEE MONTAGNE, host:

Supreme Court Justice William Rehnquist will be buried on Wednesday at Arlington National Cemetery. He died of cancer Saturday night. He will be remembered for the wave of conservative ideology he helped to usher in. David Strauss is a law professor at the University of Chicago and is the editor of the Supreme Court Review there. He joins me now.

Good morning.

Professor DAVID STRAUSS (University of Chicago): Good morning.

MONTAGNE: Tell us a few more things about how William Rehnquist's tenure on the Supreme Court will be remembered. What will be the big thing?

Prof. STRAUSS: Well, I think actually the biggest thing will not be his ideology at all actually, but how effective a leader he was. He was really beloved across the spectrum by his colleagues. This was a closely divided court on many issues. Sometimes the opinions were sharply written. The justices lived together for a long time. This is one of the longest continuing courts in history. It was the same court for 11 years. But throughout that time, he--Chief Justice Rehnquist--maintained a reputation for being fair, honest, effective and engaging the affection of all of his colleagues. I think that's actually his biggest legacy.

MONTAGNE: Well, that will, presumably, be what he will be remembered for among his and by his colleagues. But tell us more about what guided Justice Rehnquist's rulings.

Prof. STRAUSS: Well, he's viewed as a conservative, correctly so. He was very conservative. But the interesting thing I think is that in many ways the Rehnquist revolution is unfinished. He started a lot of movement in the conservative direction that now could go either way, depending on the next two appointees to the Supreme Court. In particular, one thing he started, one thing he revived, really, was limiting the power of Congress to regulate the economy and regulate society, imposing limits on that in the name of states' rights. For two generations, ever since the New Deal, Congress basically could regulate the environment and could set minimum wages or maximum hours. It could tell people what they could and couldn't do with their land. That was--it could--it enacted anti-discrimination laws. That was taken for granted. Under Chief Justice Rehnquist, that stopped being taken for granted. Now whether those limits will really cut deeply into Congress' power or not, that still remains to be seen. So in that respect he started something which may or may not be continued by his successors.

MONTAGNE: You know, looking back to when President Nixon nominated Rehnquist to be the chief justice, he was--or even to serve. He was a controversial choice at that time, wasn't he?

Prof. STRAUSS: Yes, he was.

MONTAGNE: And that was because at that time he would have been the only conservative, or a new voice, if you will, on the court.

Prof. STRAUSS: He was a new kind of conservative. And I think, in a way, that's the piece of his--you asked, Renee, about his ideological legacy, as opposed to his personal legacy. I think, in a way, his most important intellectual legacy is that he really redefined what it meant to be a judicial conservative. When he was appointed, the idea was the judicial conservatives said that the courts could stay out of American life, and let the important decisions be made by elected representatives, by the president, by Congress, by state government, and if you look at what President Nixon said when he nominated Justice--then Justice Rehnquist--they used that same kind of rhetoric. But it turned out that Chief Justice Rehnquist--Justice Rehnquist and Chief Justice Rehnquist were not that kind of conservative at all.

MONTAGNE: David, thanks very much. David Strauss is a law professor at the University of Chicago, and the editor of The Supreme Court Review.

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