14 Years on Court : Rehnquist’s Conservatism Remains Firm

WASHINGTON —  When President Richard M. Nixon appointed William H. Rehnquist to the Supreme Court in 1971, he was looking for a “strict constructionist” who would not use the court to expand the rights of criminal defendants, women, blacks and other beneficiaries of the liberal Earl Warren court.

When Rehnquist took office on Jan. 7, 1972, Nixon got what he was looking for. Unlike so many other court appointees, Rehnquist proved to be just the kind of staunch and consistent conservative that he was advertised as being.

In his early years on the court, Rehnquist so often filed a lone dissent from generally liberal rulings that his law clerks presented him with a “Lone Ranger” doll, which still rests in his office bookcase.

In recent years, Rehnquist’s image has moderated. In contrast to his generally aloof and close-mouthed colleagues, Rehnquist has been affable and open, appearing regularly at public meetings of lawyers and laymen. Earlier this year, he even made a cameo appearance as a wigged solicitor in a local theatrical spoof of Gilbert and Sullivan.

But through 14 years on the bench, his basic judicial philosophy has remained unchanged. The high court, he noted in a recent interview, is a “thoroughly undemocratic” institution. Its members are not elected, and the Constitution does not give them the right to freely substitute their views in place of those of elected legislatures.

“We’re carrying out a constitutional function that is a very delicate one,” he said in a 1985 interview. “Every time we say that a law of Congress is unconstitutional, we are overriding a democratically reached decision. Now, the Constitution requires us to do that, but it requires us to do it only with great caution and circumspection.”

Abortion View

On abortion, Rehnquist has been a steady dissenter from the court majority, which has given women the right to terminate a pregnancy. The Constitution, he has said, does not speak of abortion or even the “right of privacy” that the majority regularly cites. Therefore, he says, the matter should be left to the states.

On busing for school desegregation, Rehnquist has opposed the practice except when a judge finds that a school board has acted with “intent to segregate.” But in most cases, the separation of black and white students results more from housing patterns than school board decisions, and Rehnquist has said busing is not usually a necessary remedy.

Similarly, on affirmative action, Rehnquist believes that extra help for blacks, Latinos and women is justified only when these individuals are actual victims of discrimination--not when other members of their class have suffered from discrimination.

For Death Penalty

In criminal cases, Rehnquist has been the Supreme Court’s steadiest vote in favor of law enforcement officials and against criminal suspects. When the court in 1972 struck down the death penalty as arbitrary and capricious, Rehnquist issued a stinging dissent, noting that framers of the Constitution would have banned capital punishment themselves if they had thought it was wrong.

“The most expansive reading of the leading constitutional cases does not remotely suggest that this court has been granted a roving commission . . . to strike down laws based upon notions of policy or morality suddenly found unacceptable by a majority of the court,” he wrote.

Just two years ago, he wrote a decision allowing a “public safety” exception to the controversial Miranda ruling. He gave police officers the right to move quickly to confiscate suspects’ weapons before reading them their right to remain silent.

Most legal experts said Tuesday that Rehnquist as chief justice would offer more of the same--a clear and consistent voice in behalf of judicial restraint.

“He is much more intellectual, more scholarly than (retiring Chief Justice Warren E.) Burger,” said Walter Berns, a constitutional expert at the American Enterprise Institute in Washington.

“He can present a more formidable intellectual conservative position,” added Gerald Gunther, a Stanford University professor of constitutional law. “I don’t foresee a change on particular votes, but over time he will have an impact by making a more persuasive defense for the conservative position.”

‘Tempering’ Seen

Rehnquist’s hand has also been strengthened in recent years by a “tempering” of his most “far-out” views, Gunther said. “I think he has become more interested in getting a majority for his views, so he’s become a more effective justice,” he said.

Berns added, however, that Rehnquist, if confirmed, will face an awkward situation of leading his longtime colleagues on the court. “One can wonder how Brennan or Marshall or White will accept this. It could give rise to some problems,” Berns said.

William Hubbs Rehnquist, now 61, came to the court from the Nixon Administration’s Justice Department, where he was a highly regarded legal expert as assistant attorney general in charge of the office of legal counsel.

Controversial Memo

His confirmation to the high court drew criticism, however, because of a memo he wrote as a young law clerk in 1952 which suggested that racial segregation in the South was legal under the Constitution. Rehnquist denied that this represented his view and he was confirmed on a 68-26 vote on Dec. 10, 1971.

Born and reared in a Milwaukee suburb, Rehnquist earned a bachelor’s degree from Stanford in 1948 and a master’s degree from Harvard University in 1950 before graduating first in the Stanford Law School class of 1952. A classmate there, Sandra Day O’Connor, joined him on the court in 1981.

He has a chronic back problem and suffered a drug reaction in 1981 that resulted in slurred speech and signs of some mental impairment. But according to a Reagan Administration official, he told President Reagan last week that he recently had a physical and was found to be in good health.