[Congressional Record (Bound Edition), Volume 161 (2015), Part 10]
[Senate]
[Pages 14539-14541]
[From the U.S. 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.

[[Page 14540]]

       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. 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

[[Page 14541]]

     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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