[Mb-civic] A Limited Legacy - Cliff Sloan - Washington Post

[William Swiggard]

A Limited Legacy

By Cliff Sloan
Monday, September 5, 2005; Page A31

Many commentators are rushing to proclaim William Rehnquist one of the 
"great" chief justices because of his impact on the Supreme Court. Not 
so fast. With all due respect to his memory, it is clear that on many 
important issues, Rehnquist lost the court that bore his name. And 
during some of the most heated battles, rather than an influential chief 
rallying the court, Rehnquist was the court's missing man, seeming to 
watch from the sidelines.

Since Rehnquist became chief in 1986, the court's record often has moved 
exactly opposite of the direction that Rehnquist wanted to go. On issue 
after issue, Rehnquist lost key fights. The court rejected his call to 
overrule Roe v. Wade (from which he had dissented in 1973). It refused 
to outlaw public support for affirmative action. And on it went -- with 
Rehnquist dissenting, the court rejected Ten Commandments displays in 
Kentucky courthouses, upheld campaign finance restrictions, struck down 
a criminal ban on gay sex, allowed local governments to take private 
property for economic development, and embraced many other positions he 
opposed.

Rehnquist's court took some steps in directions that he favored, but the 
limits of those opinions highlight the limits of his legacy. It upheld 
some abortion restrictions, but Roe v. Wade remains firmly ensconced. A 
Rehnquist opinion rejected a college affirmative action program, but his 
court's approval of a law school program prevented a wholesale 
repudiation of affirmative action. Rehnquist permitted school voucher 
programs with parochial schools, but the court's much-attacked 
precedents on separation of church and state are stronger than ever 
after the Ten Commandments decision. The Rehnquist Court restricted 
habeas corpus, but the Warren Court's major criminal law precedents 
remain solidly in place.

Although Rehnquist saw his court make some movements in his direction, 
they were incremental steps around the edges. The ramparts that 
Rehnquist assaulted did not fall. His limited successes were far from 
the legacy of greatness that Rehnquist champions claim.

To give him his due, Rehnquist had a major impact in two important areas 
-- restrictions on Congress's power and the immunity of state 
governments from federal law. For the first time since the early New 
Deal, the Supreme Court rejected laws as beyond Congress's power under 
the commerce clause, which gives Congress authority to regulate 
interstate commerce. For 5 to 4 majorities, Rehnquist ruled that 
Congress had not proved an adequate interstate basis for laws about guns 
near schools and violence against women. And, in a series of 5 to 4 
opinions, Rehnquist's court shielded state governments from imposition 
of federal law. Even in these areas, though, Rehnquist lost momentum. 
Over his dissents, the court upheld federal power to ban California's 
medical marijuana law and to subject states to federal lawsuits about 
disability access in local courthouses.

http://www.washingtonpost.com/wp-dyn/content/article/2005/09/04/AR2005090400925.html
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