Tenure as chief justice
In his capacity as chief justice, Rehnquist administered the Oath of Office to the following presidents of the United States:
George H. W. Bush in 1989
Bill Clinton in 1993 and 1997
George W. Bush in 2001 and 2005
Rehnquist tightened up the justices' conferences, keeping justices from going too long or off track and not allowing any justice to speak twice until each had spoken once, and gained a reputation for scrupulous fairness in assigning opinions: Rehnquist assigned no justice (including himself) two opinions before everyone had been assigned one, and made no attempts to interfere with assignments for cases in which he was in the minority. Most significantly, he successfully lobbied Congress in 1988 to give the Court control of its own docket, cutting back on mandatory appeals and certiorari grants in general.
Rehnquist added four yellow stripes to the sleeves of his robe in 1995. A lifelong fan of Gilbert and Sullivan operas, he liked the Lord Chancellor's costume in a community theater production of Iolanthe, and thereafter appeared in court with the same striped sleeves. His successor, Chief Justice John Roberts, chose not to continue the practice.
Scholars expected Rehnquist to push the Supreme Court in a more conservative direction during his tenure. Many commentators expected to see the federal government's power limited and state governments' power increased. However, legal reporter Jan Crawford has said that some of Rehnquist's victories toward the federalist goal of scaling back congressional power over the states had little practical impact.
Rehnquist voted with the majority in City of Boerne v. Flores (1997), and referred to that decision as precedent for requiring Congress to defer to the Court when interpreting the Fourteenth Amendment (including the Equal Protection Clause) in a number of cases. Boerne held that any statute that Congress enacted to enforce the Fourteenth Amendment (including the Equal Protection Clause) had to show "a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end". The Rehnquist Court's congruence and proportionality theory replaced the "ratchet" theory that had arguably been advanced in Katzenbach v. Morgan (1966). According to the ratchet theory, Congress could "ratchet up" civil rights beyond what the Court had recognized, but Congress could not "ratchet down" judicially recognized rights. According to the majority opinion of Justice Anthony Kennedy, which Rehnquist joined in Boerne:
There is language in our opinion in Katzenbach v. Morgan, 384 U.S. 641 (1966), which could be interpreted as acknowledging a power in Congress to enact legislation that expands the rights contained in §1 of the Fourteenth Amendment. This is not a necessary interpretation, however, or even the best one.... If Congress could define its own powers by altering the Fourteenth Amendment's meaning, no longer would the Constitution be "superior paramount law, unchangeable by ordinary means".
The Rehnquist Court's congruence and proportionality standard made it easier to revive older precedents preventing Congress from going too far in enforcing equal protection of the laws.
One of the Rehnquist Court's major developments involved reinforcing and extending the doctrine of sovereign immunity, which limits the ability of Congress to subject non-consenting states to lawsuits by individual citizens seeking money damages.
In both Kimel v. Florida Board of Regents (2000) and Board of Trustees of the University of Alabama v. Garrett (2001), the Court held that Congress had exceeded its power to enforce the Equal Protection Clause. In both cases, Rehnquist was in the majority that held discrimination by states based upon age or disability (as opposed to race or gender) need satisfy only rational basis review as opposed to strict scrutiny.
Though the Eleventh Amendment by its terms applies only to suits against a state by citizens of another state, the Rehnquist Court often extended this principle to suits by citizens against their own states. One such case was Alden v. Maine (1999), in which the Court held that the authority to subject states to private suits does not follow from any of the express enumerated powers in Article I of the Constitution, and therefore looked to the Necessary and Proper Clause to see whether it authorized Congress to subject the states to lawsuits by the state's own citizens. Rehnquist agreed with Kennedy's statement that such lawsuits were not "necessary and proper":
Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.
Rehnquist also led the Court toward a more limited view of Congressional power under the Commerce Clause. For example, he wrote for a 5-to-4 majority in United States v. Lopez, 514 U.S. 549 (1995), striking down a federal law as exceeding congressional power under the Clause.
Lopez was followed by United States v. Morrison, 529 U.S. 598 (2000), in which Rehnquist wrote the Court's opinion striking down the civil damages portion of the Violence Against Women Act of 1994 as regulating conduct that has no significant direct effect on interstate commerce. Rehnquist's majority opinion in Morrison also rejected an Equal Protection argument on the Act's behalf. All four dissenters disagreed with the Court's interpretation of the Commerce Clause, and two dissenters, Stevens and Breyer, also took issue with the Court's Equal Protection analysis. David Souter asserted that the Court was improperly seeking to convert the judiciary into a "shield against the commerce power".
Rehnquist's majority opinion in Morrison cited precedents limiting the Equal Protection Clause's scope, such as United States v. Cruikshank (1876), which held that the Fourteenth Amendment applied only to state actions, not private acts of violence. Breyer, joined by Stevens, agreed with the majority that it "is certainly so" that Congress may not "use the Fourteenth Amendment as a source of power to remedy the conduct of private persons", but took issue with another aspect of the Morrison Court's Equal Protection analysis, arguing that cases that the majority had cited (including United States v. Harris and the Civil Rights Cases, regarding lynching and segregation, respectively) did not consider "this kind of claim" in which state actors "failed to provide adequate (or any) state remedies". In response, the Morrison majority asserted that the Violence Against Women Act was "directed not at any State or state actor, but at individuals who have committed criminal acts motivated by gender bias".
The federalist trend Lopez and Morrison set was seemingly halted by Gonzales v. Raich (2005), in which the Court broadly interpreted the Commerce Clause to allow Congress to prohibit the intrastate cultivation of medicinal cannabis. Rehnquist, O'Connor and Justice Clarence Thomas dissented in Raich.
Rehnquist authored the majority opinion in South Dakota v. Dole (1987), upholding Congress's reduction of funds to states not complying with the national 21-year-old drinking age. Rehnquist's broad reading of Congress's spending power was also seen as a major limitation on the Rehnquist Court's push to redistribute power from the federal government to the states.
According to law professor Erwin Chemerinsky, Rehnquist presided over a "federalist revolution" as chief justice, but Cato Institute scholar Roger Pilon has said that "[t]he Rehnquist court has revived the doctrine of federalism, albeit only at the edges and in very easy cases."
Some commentators expected the Rehnquist Court to overrule several controversial decisions broadly interpreting the Bill of Rights. But the Rehnquist Court expressly declined to overrule Miranda v. Arizona in Dickerson v. United States. Rehnquist believed that federal judges should not impose their personal views on the law or stray beyond the framers' intent by reading broad meaning into the Constitution; he saw himself as an "apostle of judicial restraint". Columbia Law School Professor Vincent Blasi said of Rehnquist in 1986 that "[n]obody since the 1930s has been so niggardly in interpreting the Bill of Rights, so blatant in simply ignoring years and years of precedent." In the same article, Rehnquist was quoted as retorting that "such attacks come from liberal academics and that 'on occasion, they write somewhat disingenuously about me'."
Rehnquist disagreed with Roe v. Wade. In 1992, Roe survived by a 5–4 vote in Planned Parenthood v. Casey, which relied heavily on the doctrine of stare decisis. Dissenting in Casey, Rehnquist criticized the Court's "newly minted variation on stare decisis", and asserted "that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases".
The Court decided another abortion case, this time dealing with partial birth abortion, in Stenberg v. Carhart (2000). Again, the vote was 5–4, and again Rehnquist dissented, urging that stare decisis not be the sole consideration: "I did not join the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), and continue to believe that case is wrongly decided."
In a 1977 dissent in the case of Ratchford v. Gay Lib, Rehnquist gave weight to the pseudoscientific notion that homosexuality is contagious.
Rehnquist joined the majority opinion in Bowers v. Hardwick upholding the outlawing of gay sex acts as constitutional, and did not join Chief Justice Burger's concurrence.
In Romer v. Evans (1996), Colorado adopted an amendment to the state constitution that would have prevented any municipality within the state from taking any legislative, executive, or judicial action to protect citizens from discrimination on the basis of their sexual orientation. Rehnquist joined Scalia's dissent, which argued that since the Constitution says nothing about this subject, "it is left to be resolved by normal democratic means". The dissent argued as follows (some punctuation omitted):
General laws and policies that prohibit arbitrary discrimination would continue to prohibit discrimination on the basis of homosexual conduct as well. This ... lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit.
The dissent mentioned the Court's then-existing precedent in Bowers v. Hardwick (1986), that "the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years—making homosexual conduct a crime." By analogy, the Romer dissent reasoned that:
If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self avowed tendency or desire to engage in the conduct.
The dissent listed murder, polygamy, and cruelty to animals as behaviors that the Constitution allows states to be very hostile toward, and said, "the degree of hostility reflected by Amendment 2 is the smallest conceivable." It added:
I would not myself indulge in ... official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes.
In Lawrence v. Texas (2003), the Supreme Court overruled Bowers. Rehnquist again dissented, along with Scalia and Thomas. The Court's result in Romer had described the struck-down statute as "a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests". The sentiment behind that statute had led the Court to evaluate it with a "more searching" form of review. Similarly, in Lawrence, "moral disapproval" was found to be an unconstitutional basis for condemning a group of people. The Court protected homosexual behavior in the name of liberty and autonomy.
Rehnquist sometimes reached results favorable to homosexuals−for example, voting to allow a gay CIA employee to sue on the basis of constitutional law for improper personnel practices (although barring suit on the basis of administrative law in deference to a claim of national security reasons), to allow same-sex sexual harassment claims to be adjudicated, and to allow the University of Wisconsin–Madison to require students to pay a mandatory fee that subsidized gay groups along with other student organizations.
Because of his votes in gay rights cases, ACT UP included Rehnquist alongside Ronald Reagan, George H. W. Bush, Jerry Falwell, and Jesse Helms in a series of posters denouncing what it regarded as leading figures in the anti-gay movement in America.
In Alexander v. Sandoval (2001), which involved the issue of whether a citizen could sue a state for not providing driver's license exams in languages other than English, Rehnquist voted with the majority in denying a private right to sue for discrimination based on race or national origin involving disparate impact under Title VI of the Civil Rights Act of 1964. Sandoval cited Cannon v. University of Chicago (1979) as precedent. The Court ruled 5–4 that various facts (regarding disparate impact) mentioned in a footnote of Cannon were not part of the holding of Cannon. The majority also viewed it as significant that §602 of Title VI did not repeat the rights-creating language (race, color, or national origin) in §601.
In 1992, Rehnquist joined a dissenting opinion in Lee v. Weisman arguing that the Free Exercise Clause of the First Amendment only forbids government from preferring one particular religion over another. Souter wrote a separate concurrence specifically addressed to Rehnquist on this issue.
Rehnquist also led the way in allowing greater state assistance to religious schools, writing another 5-to-4 majority opinion in Zelman v. Simmons-Harris that approved a school voucher program that aided church schools along with other private schools.
In Van Orden v. Perry (2005), Rehnquist wrote the plurality opinion upholding the constitutionality of a display of the Ten Commandments at the Texas state capitol in Austin. He wrote:
Our cases, Janus like, point in two directions in applying the Establishment Clause. One face looks toward the strong role played by religion and religious traditions throughout our Nation's history.... The other face looks toward the principle that governmental intervention in religious matters can itself endanger religious freedom.
This opinion was joined by Scalia, Thomas, Breyer, and Kennedy.
University of Chicago Law School Professor Geoffrey Stone has written that Rehnquist was by an impressive margin the justice least likely to invalidate a law as violating "the freedom of speech, or of the press". Burger was 1.8 times more likely to vote in favor of the First Amendment; Scalia, 1.6 times; Thomas, 1.5 times. Excluding unanimous Court decisions, Rehnquist voted to reject First Amendment claims 92% of the time. In issues involving freedom of the press, he rejected First Amendment claims 100% of the time. Stone wrote:
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. But, as he did in Bigelow v. Commonwealth of Virginia, Rehnquist voted against freedom of advertising if an advertisement involved birth control or abortion.
Rehnquist wrote a concurrence agreeing to strike down the male-only admissions policy of the Virginia Military Institute as violating the Equal Protection Clause, but declined to join the majority opinion's basis for using the Fourteenth Amendment, writing:
Had Virginia made a genuine effort to devote comparable public resources to a facility for women, and followed through on such a plan, it might well have avoided an equal protection violation.
This rationale supported facilities separated on the basis of gender:
It is not the 'exclusion of women' that violates the Equal Protection Clause, but the maintenance of an all-men school without providing any—much less a comparable—institution for women.... It would be a sufficient remedy, I think, if the two institutions offered the same quality of education and were of the same overall caliber.
Rehnquist remained skeptical about the Court's Equal Protection Clause jurisprudence; some of his opinions most favorable to equality resulted from statutory rather than constitutional interpretation. For example, in Meritor Savings Bank v. Vinson (1986), Rehnquist established a hostile-environment sexual harassment cause of action under Title VII of the Civil Rights Act of 1964, including protection against psychological aspects of harassment in the workplace.
In 2000, Rehnquist wrote a concurring opinion in Bush v. Gore, the case that ended the presidential election controversy in Florida, agreeing with four other justices that the Equal Protection Clause barred the "standardless" manual recount ordered by the Florida Supreme Court.
In 1999, Rehnquist became the second chief justice (after Salmon P. Chase) to preside over a presidential impeachment trial, during the proceedings against President Bill Clinton. He was a generally passive presiding officer, once commenting on his stint as presiding officer, "I did nothing in particular, and I did it very well." In 1992, Rehnquist wrote Grand Inquests, a book analyzing both the impeachment of Andrew Johnson and the impeachment of Samuel Chase.
