[Congressional Record Volume 161, Number 134 (Thursday, September 17, 2015)]
[Senate]
[Pages S6803-S6804]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
REMEMBERING CHIEF JUSTICE WILLIAM HUBBS REHNQUIST
Mr. CRUZ. Mr. President, Thursday, September 3, was the 10th
anniversary of the death of William Hubbs Rehnquist, the former Chief
Justice of the United States Supreme Court. Rehnquist was an absolutely
outstanding chief, one of the most influential Justices in the 225-year
history of the Court. And the 10 years since his unfortunate passing
have only served to increase the level of respect and admiration many
have for him. This reverence is richly deserved, as Rehnquist spent
over three decades--nearly two decades as Chief Justice--valiantly
attempting to return the Court to this country's first principles,
federalism being a primary one, in order to salvage our fundamental
liberties. This is a goal the current Court would do well to remember
and embrace.
Of course, I am slightly biased in this matter. I clerked for
Rehnquist, after all, and therefore spent an entire year learning at
his side, while simultaneously embarrassing myself in his doubles
tennis matches. But what is amazing about Rehnquist is how much esteem
he was held in by those who often disagreed with him. Indeed, the
respect he enjoyed from his colleagues was unparalleled. To give just
one of many examples, Walter Dellinger, a former Solicitor General in
the Clinton administration, wrote that ``Rehnquist was a great leader
and effective administrator of the Supreme Court and the national
judiciary. He ran a tight ship. . . . Every justice with whom I have
spoken in recent years has noted that the court was functioning well
under his leadership.'' Rehnquist didn't just treat his fellow lawyers
well, either. He knew everyone's name who worked in the Court--from
Justices, to police officers, to janitors--and he treated them all
fairly and with dignity. Outside the Court, where he regularly strolled
with his clerks, he would often graciously take pictures of tourists,
who had no idea they had just asked our country's top judicial officer
to assist with their family snapshot. These days, in the era of
selfies, the tourists probably would not notice him at all. And
Rehnquist would be fine with that. Humility was one of his defining
characteristics.
In remembrance of Chief Justice Rehnquist's passing, I ask unanimous
consent to have printed in the Record a memorial article I wrote for
the Harvard Law Review 10 years ago. This is not nearly as much as
Rehnquist deserves, but it is more than a man like Rehnquist would ever
request for himself. We miss you, Chief.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Harvard Law Review, Nov., 2005]
In Memoriam: William H. Rehnquist
(By R. Ted Cruz)
The editors of the Harvard Law Review respectfully dedicate this issue
to Chief Justice William H. Rehnquist
A doll, a headdress, and a ship captain's wheel. All three
enjoyed prominent placement in the Chief Justice's private
chambers. Each was a gift from his law clerks, and each
symbolized a different aspect of William Hubbs Rehnquist's
tenure as Chief Justice of the United States.
Appointed to the Court in 1971, then-Justice Rehnquist
found himself on a Court very much out of step with the rest
of the nation. Five months after he arrived, in June of 1972,
the Court issued Furman v. Georgia, striking down the death
penalty across the country. Despite the fact that capital
punishment is referenced explicitly in the text of
Constitution, the Court concluded that it was nonetheless
unconstitutional and with the stroke of a pen threw out the
laws of virtually every state. Predicated upon what were
termed ``evolving standards of decency,'' Furman asserted
that five Justices were better arbiters of what was
``decent'' than the hundreds of millions of voters who had
elected the legislatures that had widely adopted the death
penalty.
Justice Rehnquist, of course, dissented. And four years
later, the Court retreated from its decree that no state
could ``decently'' choose to impose the death penalty. But
Furman was emblematic. In the 1960s and 1970s, the Court
consistently elevated the rights of criminal defendants, and,
repeatedly, Justice Rehnquist dissented, often alone.
As in criminal law, so too across the gamut, especially
concerning federalism and the Religion Clauses. For his first
decade and beyond, Justice Rehnquist earned his ``Lone
Ranger'' nickname. Thus, the first gift from the clerks--a
twelve-inch adjustable Lone Ranger doll, which sat for some
three decades on the bookshelf in his back office.
But the fiery dissents of the 1970s were not to be Justice
Rehnquist's entire legacy. In 1986, President Reagan made him
Chief. Thus, the second gift--an elaborate Indian feather
headdress, which sat next to the Lone Ranger doll on the
bookshelf.
Beside both the doll and the headdress lay one of the most
startling graphical representations of the different role
Chief Justice Rehnquist was to play. Starting at the ceiling,
his bound opinions from each Term stretched across the
shelves. For the first fifteen years, each Term's bound
volume is consistently three to four inches wide. Then, in
1986, there is a sharp divide: from that point forward, each
Term's volume of collected opinions falls to one to two
inches in width. That visual break was not the result of a
sudden lack of verbosity. Rather, it was a physical
manifestation of Chief Justice Rehnquist's understanding of
the very different task assigned a Chief Justice. No longer
was his principal role to expound impassioned individual
views; instead, it was to lead.
Thus, in 1996--his twenty-fifth anniversary as a Justice
and his tenth as Chief--his third and most emblematic gift
came from the clerks: a large ship's captain's wheel, which
was mounted on the wall to commemorate his careful guidance
of the Court over the decades.
The Chief steered the Court, carefully, steadily, over
nineteen years at the helm. One result of that guidance,
widely appreciated by lawyers, scholars, and public
commentators, is that many of those 1970s-era Rehnquist
dissents are now the law of the land. Indeed, there are few
clearer legal arcs than the path from Rehnquist dissent to
Court majority over these three decades.
Hence, the so-called federalist revolution, revitalizing an
important structural safeguard to human liberty through the
preservation of the real authority of sovereign states. ``We
start with first principles,'' the Chief began in United
States v. Lopez. ``The Constitution creates a Federal
Government of enumerated powers,'' ``few and defined,'' in
James Madison's words, which ``ensure[s] [the] protection of
our fundamental liberties.''
Hence, the return to balance in the Court's Establishment
Clause jurisprudence, repudiating the hostility toward
religion manifested by earlier decisions. Thus, in 2002, the
Chief wrote Zelman v. Simmons-Harris, upholding the Cleveland
school-choice program and making clear that the Constitution
does not require the exclusion of religious schools from the
options presented to children in need.
Fittingly, the Chiefs last opinion, handed down as the last
opinion on the last day of the Term, was Van Orden v. Perry.
Texas defended the Ten Commandments monument outside our
State Capitol, and we won, 5-4. In his plurality opinion, the
Chief made clear that nothing in the First Amendment requires
chisels and bulldozers to erase any and all public references
to the Almighty.
[[Page S6804]]
Rather, the Constitution embraces tolerance, not hostility,
toward religion.
And hence the well chronicled retreat from the 1960s- and
70s-era overbroad protections for criminal defendants,
restoring a jurisprudential approach that preserves
constitutional liberties without unnecessarily frustrating
good-faith law enforcement efforts.
That legacy of legal transformation has earned Chief
Justice Rehnquist, in the judgment of President Clinton's
acting Solicitor General Walter Dellinger, a place--along
with John Marshall and Earl Warren--among the three most
influential Chief Justices in history.
Yet even so, the Chief's skill in steering the Court, the
care and diligence with which he achieved that legacy, is not
widely understood. Indeed, many scholars, lawyers, and law
students have misperceived the Chief's jurisprudence--
incorrectly deeming him, for example, significantly less
conservative than Justices Scalia and Thomas--because they
have failed to appreciate the distinct role of the Chief
Justice, guiding the Court.
Take, for example, Dickerson v. United States, reaffirming
Miranda v. Arizona as the law of the land. At the time of his
death, eulogists pointed to Dickerson as an example of how
the Chief had moderated his views, growing over time away
from his Lone Ranger passion and toward an appreciation for
elements of the status quo.
In my judgment, that view seriously misapprehends Chief
Justice Rehnquist. Indeed, a careful examination of Dickerson
can illuminate much of how he served as Chief. At the outset,
Dickerson cannot be understood in isolation; instead, one
must consider the entire course of the Chiefs criminal-law
jurisprudence.
For decades before Dickerson, the Chief had been a vocal
critic of Miranda. Beginning with Michigan v. Tucker in 1974,
the Chief authored or joined dozens of opinions limiting
Miranda's reach. Viewed by many as one of the worst Warren
Court excesses, Miranda combined an activist approach--
mandating specific police warnings found nowhere in the
Constitution--with unsettling outcomes--ensuring, in
conjunction with a robust exclusionary rule, that
demonstrably guilty criminals could go free on the barest of
technicalities.
The predicate for all of the Chief's efforts to cabin in
Miranda was the notion that the specified warnings were not
constitutionally required; rather, they were merely a
``prophylactic'' measure in aid of the broader constitutional
value. Because Miranda was prophylactic--because the
Constitution did not require its application in every
respect--the Chief was able gradually to do much to mitigate
its harmful effects.
Enter 18 U.S.C. Sec. 3501. Passed in the wake of Miranda
and signed into law by President Lyndon B. Johnson,
Sec. 3501, in effect, purported to overrule Miranda and
return to the underlying constitutional standard of
voluntariness for the admission of confessions. Yet, for
three decades, Sec. 3501 lay dormant on the statute books,
all but ignored.
In Dickerson, however, a federal court of appeals for the
first time gave force to the words of the statute, admitting
into evidence a voluntary confession notwithstanding the lack
of properly administered Miranda warnings. Thus, the validity
of Sec. 3501 was squarely presented.
If there was one thing the Chief knew, it was the minds of
his colleagues; he had a remarkable sense for what his
Brethren were and were not willing to do. As a practical
matter, there was no way that Justice O'Connor or Justice
Kennedy would possibly be willing to overrule Miranda. It was
too established, too much a part of the legal firmament, for
either of them to hazard extinguishing it.
If there had been four votes to overrule Miranda, it is
difficult to imagine that, given his decades of principled
opposition, the Chief would not have readily provided the
fifth. But the votes were not there.
In their place was genuine peril. Section 3501 was a
statute passed by Congress and signed into law by the
President; the only way it could be invalidated was for it to
be declared unconstitutional. And, if it were
unconstitutional, that would presumably be because Miranda
was not mere prophylaxis, but itself required by the
Constitution.
Had the Chief voted with the dissenters, the majority
opinion would have been assigned by the senior Justice in the
majority, in this case Justice Stevens. And Justice Stevens,
of course, had a very different view of Miranda than did the
Chief.
It is not difficult to imagine a Justice Stevens Dickerson
majority, recounting the history of Miranda and Sec. 3501 and
then observing something like, ``Although we have often used
the term `prophylactic' to describe Miranda, over time it has
become interwoven into the basic fabric of our criminal law;
thus, today, we make explicit what had been implicit in our
prior decisions: Miranda is required by the U.S.
Constitution. Accordingly, Sec. 3501 is unconstitutional.''
That holding, in turn, would have undermined the foundation
for most if not all of the previous decisions limiting
Miranda, quietly threatening three decades of the Chief's
careful efforts to cabin in that decision appropriately.
Therefore, in my judgment, the Chief acted decisively to
avoid that consequence. He voted with the majority and
assigned the opinion to himself.
With that backdrop, the majority opinion in Dickerson is,
in many respects, amusing to read. Its holding can be
characterized as threefold: First, Miranda is NOT required by
the Constitution; it is merely prophylactic, and its
exceptions remain good law. Second, 18 U.S.C. Sec. 3501 is
not good law. Third, do not ask why, and please, never, ever,
ever cite this opinion for any reason.
Although not what one would describe as the tightest of
logical syllogisms, it was the best that could be gotten from
the current members of the Court. A majority of Justices
agreed with each of the first two propositions, and so
therefore--even though the propositions are in significant
tension with each other--pursuant to Justice Brennan's famed
``rule of five,'' the Court declared both, and nothing more.
That leadership, I would suggest, is a hallmark of a great
Chief Justice. The role of the Chief is unique, and Chief
Justice Rehnquist understood his colleagues well.
Consistently, he achieved the best legal outcome that could
be reached in a given case, in aid of moving inexorably in
the long term toward sound and principled jurisprudential
doctrine.
For those of us who had the privilege of clerking for the
Chief, we came to know a man of enormous intellect,
principle, humor, and modesty.
Blessed with an eidetic memory, he seemed to know all the
law that ever was. He would routinely amaze his clerks by
quizzing them on the exact citation to some case or other;
the clerks would, of course, never know the cite, and--off
the top of his head--the Chief always would. As his son James
observed at the Chief's funeral, he would have said that his
dad had forgotten more history than most of us will ever
know, but he didn't think his dad had ever forgotten
anything.
A Midwesterner, born of modest means, the Chief enlisted in
the Army in 1943 at age eighteen. Law has too long been a
profession of the privileged few, and it is fitting, and
worth noting, that the Chief Justice was an enlisted man,
serving as weather observer in North Africa.
Once a week, the Chief played tennis with his clerks. We
would play on a public court, and no one ever recognized the
older gentlemen playing doubles with three young lawyers. He
would also have us over to his house to play charades. One of
my favorite memories is his lying on his stomach on the
floor, pantomiming firing a rifle and mouthing ``pow, pow,''
as he acted out All Quiet on the Western Front.
He enjoyed simple tastes--his favorite lunch was a
cheeseburger, a ``Miller's Lite,'' and a single cigarette--
and he had little patience for putting on airs. Once, when a
law clerk asked him how he went about choosing law clerks,
the Chief replied, ``Well, I obviously wasn't looking for the
best and the brightest, or I wouldn't have chosen you guys.''
Himself a former law clerk, he had no grand illusions about
the job.
He was a kind and decent man. He knew everybody's name in
the Court, every police officer and every janitor, and he
treated them all with fairness and dignity. For that reason,
the respect he enjoyed from his colleagues was unparalleled.
The Chief was beloved by his family, by his colleagues, by
the thirty-four years' worth of law clerks whom he
befriended, taught, and mentored. His views did not always
prevail, but his steady hand at the helm--his vision,
leadership, and unwavering principles--made this in every
respect the Rehnquist Court.
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