Has William Rehnquist Lost Control?

Although it has been 10 years since its membership last changed, the Supreme Court that concluded its term last week was, surprisingly and in important ways, a new court.

It is too soon to say for sure, but it is possible that the 2003-04 term may go down in history as the one when Chief Justice William H. Rehnquist lost his court.

The cases decided in the term's closing days on the rights of the detainees labeled"enemy combatants" by the Bush administration provided striking evidence for this appraisal. The court ruled that foreigners imprisoned at Guantánamo Bay, Cuba, as well as American citizens held in the United States are entitled to contest their classification before an impartial judge.

The surprise lay not in the outcome: it was scarcely a great shock, except perhaps to the administration, that a court preoccupied in recent years with preserving judicial authority would reject the bold claim of unreviewable executive power at the core of the administration's legal arguments. Rather, what was most unexpected about the outcome of the cases was the invisibility of Chief Justice Rehnquist.

It is a remarkable development. Since his promotion to chief justice 18 years ago, his tenure has been notable for the sure hand with which he has led the court, marshaling fractious colleagues not only to advance his own agenda but also to protect the court's institutional prerogatives.

Four years ago, for example, the court reviewed a law by which Congress had purported to overrule the Miranda decision, a precedent Chief Justice Rehnquist disliked and had criticized for years. But in the face of Congress's defiance, he wrote a cryptic opinion for a 7-to-2 majority that said no more than necessary about Miranda itself but found common ground in making clear that it was the court, not Congress, that has the last word on what the Constitution means.

This year, there was every reason to suppose the chief justice would want to shape the court's response to the war on terrorism. His 1998 book on the history of civil liberties in wartime reflected his extensive knowledge and evident fascination with the subject by which the term, if not his entire tenure, was likely to be known. If there was a message to be delivered from one branch of government to another, Chief Justice Rehnquist figured to be the one to deliver it.

Yet the Guantánamo case found him silently joining Justice Antonin Scalia's dissenting opinion as Justice John Paul Stevens explained for the 6-to-3 majority why the federal courts have jurisdiction to review the status of the hundreds of foreigners detained there....