Laurence H. Tribe: Why Rehnquist Was "Gentleman of the Court"





... That Chief Justice Rehnquist was unlike both puritanical conservatives like Warren E. Burger and movement conservatives like Antonin Scalia was evident in the character of his questions in the two gay rights cases I argued in the mid-1980's, one about firing teachers for "advocating" homosexual activity and the other about prosecuting consenting adults for same-sex intimacy. In neither case did his questions have the "I'm shocked" tenor of Chief Justice Burger's contribution to the dialogue. Justice Rehnquist simply pressed me appropriately on the absence of evidence that the challenged school board regulation had "ever been applied to a single living soul." And when I argued that consenting adults have a fundamental right to engage privately in the sex acts of their choice, while Chief Justice Burger and Justice Byron R. White could barely contain their disgust, Justice Rehnquist calmly pursued the question of just when and how that "fundamental right" arose.

A dry and gentle wit was among the chief justice's greatest strengths. In a 1991 abortion financing gag order case, I tried to lighten things up by responding, when the chief justice suggested that a State Department press secretary has to toe the government's line, that "some of them don't seem to realize that." Chief Justice Rehnquist let me enjoy the laughter before topping me with a deadpan, "Well, some of them may not realize it, but I think they'll soon learn." In the two cases I argued in which Chief Justice Rehnquist penned a dissent (a freedom of speech case in 1980 and a church-state separation case in 1982), his deliberately playful solo opinions were written with so light a touch that I enjoyed reading them far more than I did the sober 8-to-1 opinions in my favor.

Chief Justice Rehnquist's goal of weakening the checks on presidential power happily met decisive opposition within the court, although I worry that the seeds he planted to that end might yet bear dangerous fruit. No pleasure in argument could overcome my sadness at the Supreme Court's performance in the 2000 election, or my disappointment at how far the chief justice succeeded in his goals of lowering the wall of separation between church and state, shrinking Congress's power and reducing the protections accorded the mostly poor people of color who are suspected or accused of crime.

RECENT events might change the direction of the winds that moved America toward the point Justice Rehnquist comfortably occupied from his earliest days on the court. How the new court will tack with or against those winds will be Topic A at the forthcoming confirmation hearings, as it should be. But Topic B had better be the ability of the new justices to help the court earn the respect of all who take part in its proceedings or are affected by its rulings - which means everybody. Chief Justice Rehnquist was a master at that mission. For that, and for the steadiness of his leadership, I will always remember him with profound gratitude and admiration.




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