Rehnquist, states rights and New Orleans

The chief justice of the United States, William Rehnquist, was a man with a conservative political agenda and a judicial philosophy of state-centered federalism. There will be attempts to sugarcoat his life, legal work and judicial views, but his legal legacy should be critically examined. And when his record is laid bare I believe the American people will prefer a new justice on the Supreme Court who is committed to building “a more perfect Union” rather than one who is committed to continuing his legacy of advancing states’ rights — especially in light of what we have witnessed over the last week in New Orleans and the Gulf Coast region of our country.

The legal legacy of the Rehnquist court, and what we have witnessed in Louisiana are connected. What really happened with respect to Hurricane Katrina was the cumulative result of an “anti-federal government” philosophy of government, and Chief Justice Rehnquist was the leading advocate of the “evolution of devolution” of the federal government.

There were other players, both Democrats and Republicans, who helped to create this legacy. When President Ronald Reagan said “the federal government was the problem, not the solution,” he was contributing to the collapse of the infrastructure and the levee in New Orleans. When President Bill Clinton said “the era of big government is over,” he was contributing to leaving the Black and poor people behind who have come to light last week. And when President Bush said he wants to appoint “strict constructionist” justices in the mold of Scalia and Thomas to our highest court, he was contributing to the disaster we have witnessed last week.

With the exception of Bush v. Gore in 2000 — a decision that will go down in history alongside Dred Scott (1857) as Chief Justice Rehnquist joined in a 5-4 decision ignoring his traditional ‘states’ rights’ philosophy and electing George W. Bush president of the United States — the Rehnquist court has rather consistently supported state-centered federalism.

Less than a month after Bush v. Gore, in an environmental case involving the 1972 Clean Water Act, the court returned to its old states’ rights ways. Writing for the majority in another 5-4 decision, Chief Justice Rehnquist defended “the states’ traditional and primary power” over land and water use. In an act of judicial activism, it read language in the statute selectively, dismissing environmental agency expertise and congressional intent with respect to protecting all U.S. waters and wetlands. The court effectively rewrote the statute to fit its states’ rights views.

William Rehnquist was appointed to the Supreme Court by Richard Nixon and elevated to chief justice by Ronald Reagan. While gifted intellectually, this conservative states’ rights justice, while clerking for Justice Robert H. Jackson in 1952-53, wrote a memorandum arguing in favor of upholding the “separate but equal” doctrine of the 1896 Plessy v. Ferguson ruling in preparation for the 1954 Brown decision. As a conservative Phoenix lawyer, he appeared as a witness before the Phoenix City Council in opposition to a public accommodations ordinance, and took part in a program of challenging African American voters at the polls.

From 1969 until 1971 he served as assistant attorney general for the Office of Legal Counsel. In that capacity, he supported the use of executive authority to conduct wiretaps and surveillance without a court order, a no-knock entry policy by the police, preventive detention, and abolishing the exclusionary rule — that is, he supported the admission of evidence gathered in illegal ways.

Rehnquist held a strict constructionist view of the 14th Amendment’s mandate to the states not to deny individuals equal protection of the laws. He interpreted the equal protection clause narrowly, seeing it merely as preventing states from treating Black and white citizens differently. He argued that the 14th Amendment should not apply when a state has not intentionally discriminated (Columbus v. Penick, 1979). He argued it should not be applied to the private sector unless the state is a participant in the discrimination (Moose Lodge v. Irvis, 1972). And Rehnquist argued against applying the equal protection clause to protect women from disparate treatment (Craig v. Boren, 1976; Michael M. v. Superior Court of Sonoma County, 1981).

His states’ rights philosophy may have come through most clearly in his 1976 National League of Cities v. Usery decision, which deemed unconstitutional a federal statute extending the maximum hours and minimum wage provisions of the federal Fair Labor Standards Act to most employees of state and local governments. Breathing new life into the 10th Amendment, the court held that part of the Fair Labor Standards Act was unconstitutional because it interfered with a state’s sovereignty and, thus, violated the 10th Amendment. It was the first time since the days of FDR’s New Deal that the Supreme Court had ruled against a federal law on the basis that Congress had overstepped its federal boundaries.

The most important values for Rehnquist were his state-centered federalism, the priority of private property, and individual rights. In other words, his views were consistent with the core of the states’ rights legal philosophy of a century and a half ago, when the individual right to own property (slaves) was to be protected by a states’ rights government. If the court continues to pursue Rehnquist’s conservative strict constructionist philosophy, there will be many more New Orleans or similar situations in the future where a national commitment to build a more perfect Union will have been obstructed or denied by court decisions and a court philosophy that is detrimental to building a better country for all of the American people.





Congressman Jesse Jackson Jr. represents Illinois’ 2nd Congressional District.