Neither Principled nor Conservative: The Legacy of Chief Justice William H. Rehnquist

Neither Principled nor Conservative: The Legacy of Chief Justice William H. Rehnquist

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No one can doubt Chief Justice William H. Rehnquist's enormous impact on American criminal justice. Across the ideological spectrum, however, many question whether that impact was salutary and whether it was achieved by methods that honor a judge's first commitments—to consistency, intellectual honesty, and fidelity to the Constitution. Miranda v. Arizona will always be the central battlefield in this debate. Rehnquist thought that Miranda was wrongly decided and worked tirelessly to blunt its requirements. Seen through the lens that Rehnquist supplied, Miranda came to appear increasingly implausible and even incoherent. Yet when the opportunity came to overrule it—that is, to follow through on the implications of his own logic and principles—Rehnquist famously balked, provoking the ire of many conservative academics and his most conservative judicial colleagues. Justice Scalia, especially dismayed, charged that Rehnquist, in a display of “judicial arrogance,” had “disclaim[ed] responsibility for reasoned decision making.” It is here that the challenge lies for those who would defend Chief Justice Rehnquist's judicial legacy. He succeeded in rolling back much of the Warren Court's edifice of safeguards for criminal suspects. And he did so in a way that aroused a minimum of public opposition. Stephen Smith finds virtue in the techniques Rehnquist used to achieve these results. And in many contexts, we might be tempted to agree; in a president or a senator, we might well admire the tactical skills that produced these accomplishments. But if the judicial craft is more than just politics by a different name, if judicial power ultimately must rest on candor and a commitment to the reasoned elaboration of principle, then we must hope that present and future Justices, regardless of political or jurisprudential ideology, will not take Chief Justice Rehnquist as a role model or seek to emulate his methods. Of course, no assessment of Rehnquist's tenure can neglect his objectives—the vision of the Constitution that he sought to advance. Indeed, among both admirers and critics, Rehnquist's goals are usually what matter most. Smith acknowledges that the Rehnquist opinions have burdened criminal procedure with a staggering array of exceptions and loopholes. But their ultimate goal, he thinks, gives them legitimacy Like much of the American public, Smith takes it as a given that the Warren Court had a radical agenda and that its holdings were based primarily on social policy preferences divorced from constitutional text and principle. He insists that its “decisions became unmoored from constitutional text,” and that "the Court would impose rules of procedure on the states simply because those rules, in its view, were fairer than the alternatives.” Rehnquist, he says, rejected these “abstract notions of ‘fairness’ and the ever-shifting calibrations of the judicial conscience” and instead made his lodestar “the Constitution itself-what it actually says.” And these assumptions about the Warren Court confer presumptive legitimacy on the Rehnquist project of pushing back, of aiming to reverse the Warren Court precedents, even if the Chief Justice sometimes pushed back in unprincipled ways himself. Reasonable people differ about whether the Warren Court decisions were well grounded in traditional principles of constitutional interpretation. But nearly all constitutional scholars, regardless of ideological or jurisprudential perspective, would acknowledge that Smith's account gets the constitutional history and the respective positions of the Warren and Rehnquist Courts exactly backwards. Whatever its merits (and there was once a lively debate about this), the criterion that measured constitutionality in state criminal procedure by “abstract notions of ‘fairness’ and the ever-shifting calibrations of the judicial conscience” was precisely the approach that the Warren Court opposed. This was the approach that held sway in state criminal cases until the 1960s and included the famous “totality of the circumstances” and “shock the conscience” tests that Justice Black and other voices of the Warren Court forcefully criticized throughout the 1950s. The effort to determine “fundamental fairness” with respect to police interrogation and other aspects of state criminal procedure was the approach that the Warren Court decisions rejected, replacing it with a jurisprudence grounded in the more precise language of the Constitution's Bill of Rights—the first eight amendments to the Constitution. And this “fundamental fairness” approach, which Smith rightly criticizes as elusive and untethered to constitutional text, is precisely the approach that Chief Justice Rehnquist himself expressly advocated and worked hard to revive. Thus, in seeking a return to the jurisprudence that prevailed before Earl Warren, Rehnquist's goal was not to escape subjective assessments of “fairness.” Nor was it to make reliability a preeminent constitutional value in criminal procedure. Rehnquist did place reliability ahead of the rights of suspects. But when reliability concerns clashed with the preferences of law enforcement, Rehnquist gave priority to the latter. Indeed Rehnquist denied—expressly denied—that reliability in criminal procedure was a concern of constitutional dimension. Chief Justice Rehnquist's criminal procedure decisions therefore were not built on an aversion to vague, subjective judgments of fairness, and they were not shaped by a commitment to reliability as a constitutional value. Rather, the constant in the Rehnquist jurisprudence was a steady, predictable, openly acknowledged preference for allowing law enforcement greater leeway. Smith sees that preference as another of Rehnquist's virtues, and he celebrates Rehnquist's success in making law enforcement needs a prominent (sometimes dominant) factor in constitutional interpretation. On this third point Smith's account is quite accurate; it perfectly captures the essence of the Rehnquist judicial philosophy. Perhaps surprisingly, however, that philosophy cannot easily be accepted as a genuinely conservative approach to constitutional interpretation, and from any perspective its place in constitutional decision making is awkward at best. To make clear why so many criminal procedure scholars, regardless of ideological preference, have difficulty admiring the Rehnquist legacy in criminal procedure, I will first trace the evolution of criminal procedure from the pre-Warren to post-Warren eras. I will then examine in more detail the constitutional foundation for the Court's decisions on police interrogation and the Fourth Amendment exclusionary rule—decisions that were based directly on specific constitutional language and conventional principles of constitutional interpretation. Finally, I will discuss some of the broader values that allegedly animated Chief Justice Rehnquist in his effort to roll back these decisions—in particular, accuracy in the adjudication of guilt. The picture that emerges is that of a Justice who could be inconsistent, disingenuous, and disdainful of accuracy as a value worthy of constitutional protection. Rehnquist's top priority was to enhance law enforcement discretion in order to afford maximum possible latitude for prosecutorial authorities and for the police officer on the beat. That agenda, though undoubtedly popular with much of the American public in Rehnquist's day (and ours), cannot be extolled or admired. It is profoundly antithetical to genuinely conservative values and to sound principles of constitutional adjudication.

Source Publication

The Constitutional Legacy of William Rehnquist

Source Editors/Authors

Bradford P. Wilson

Publication Date

2015

Neither Principled nor Conservative: The Legacy of Chief Justice William H. Rehnquist

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