The Rhenquist Legacy And American Social Justice

Chief Justice Rehnquist died at the age of eighty years, late Saturday night. Rehnquist was the chief architect of the conservative legal revolution which has over the past thirty years sought to overturn the gains in civil rights, consumer, worker and prisoner rights which were the legacy of the Warren court. Rehnquist was an articulate, literate spokesman for the conservative agenda, a worthy adversary for progressive forces in the United States. His legacy will be with us for many years to come.

I had the dubious experience of having to study dozens of Rhenquist's opinions in law school constitutional law and jurisprudence classes wherein he argued for narrow readings of a wide assortment of constitutional rights as well as a narrow reading of the federal governments powers. He was an excellent legal writer. I fought tooth and nail against the ideas contained in those opinions however. I wrote a paper for a third year seminar entitled "The Jazz Quartet, A Metaphorical Resolution for the Perceived Incompatibility of The Concepts of Liberty And Equality" as a direct attack on the legal philosophy of Rhenquist and his intellectual antecedent Robert Nozick. In the paper I used the relationship between individual expression and group interplay in jazz as a metaphor for a nurturing form of democracy. Rhenquist was an enemy in my mind, a quite formidable one, who acted to retard both racial progress and reconcilliation in America..

The Warren court which implemented a liberal legal, social revolution in the 1950s and 1960s sought first and foremost to enforce fundamental rights which had been placed into the constitution by the 13th 14th and 15th Amendments to the constitution which were passed by the states at the end of the civil war. Conservatives, under the banner of states, rights, were willfully violating the rights of freed slaves thorough both law and practice. The Warren led court, beginning with Brown vs. The School board of Topeka Kansas in 1954, sought to remedy this great evil. The Warren court held that the Plessy vs. Ferguson separate but equal decision of 1896 was wrongly decided and reversed that ruling finding that segregation in schools was inherently not equal. Conservatives opposed this decision as a violation of states rights. The states rights doctrine was based upon the concept of federalism. They argued that the federal government did not have the constitutional power to regulate state policies through the federal court system or the federal legislature.

The Warren Court, in a series of cases began to address the problem of abusive police power. In the Miranda decision the Supreme Court required officers to inform people in their custody of their constitutional rights including the right to remain silent during questioning and in the Gideon decision the court ruled that every individual, facing possible incarceration, had the right to legal council. The Terryi vs. Ohio case stopped police from randomly stopping motorists on roadways without the police first having a reasonable suspicion that a crime had been committed by the vehicles occupants. Other court rulings limited the ability of police to search individuals prior to an arrest. African Americans were suffering police brutality and had suffered such abuse since before the United States became a nation. The Supreme Court, in this series of cases, sought to bring justice to the United States.

As a result of the American human rights movement (we call it the civil rights movement) of the fifties and sixties congress passed legislation which sought to end segregation and the other vestiges of slavery. The Warren court rejected states rights based challenges to these and other pieces of legislation holding that congress had the power to regulate such matters based upon the inherent power given congress under the commerce clause of the U.S. Constitution.

In the later years of the Warren court and during the years of the subsequent Burger court the Supreme Court rejected states rights based challenges to the creation of the Enviromental Protection agency and other congressional consumer protection regulation.

The Warren court in the case of Griswald vs. Conn. found that states could not make birth control illegal because the court found that the constitution, if taken as a whole, held within it a zone of privacy which protected the individual from government intrusion into family matters that were inherenly private. In the case of Loving vs. Virginia the Warren court struck down a Virginia state law which made interracial marriages illegal. Every southern state had similar legislation in their state codes. Finally, in 1973, the Burger court in Roe v. Wade, extending the holding in the Griswald decision, found that a woman had a right to an abortion in the first trimester of her pregnancy. The court held that the rights of a woman trumped the states right to regulate her pregnancy during the first trimester. This is a short list of cases which are the proud legacy of the liberal legal tradition.

The Rhenquist court, following the Burger court, sought to and in fact did limit, criminal rights, narrowing the applicability of the aforementioned decisions. It limited the scope of civil rights protections and remedies as it did in the Baake v. University of California affirmative action case and its progidee which includes the recently decide University of Michigan Law School case of about two years ago. It placed procedural hurdles upon litigants seeking to inforce congressionally mandated workplace anti-discrimination legislation.

African Americans, Native Americans, Hispanics and other poor people who have felt the heel of American oppression perpetrated by conservatives and their ilk see the Rhenquist era as one of retrenchment.

All American have benefited from the liberal legal tradition. Civil rights and the right to privacy benefit us all. I am fearful that a future John Roberts led court will further erode the rights that were won a short few decades ago.

Professor John H. Armwood