- 1 hour ago
Category
📚
LearningTranscript
00:00A president sweeps into power.
00:03Richard Nixon has four appointments in less than two years.
00:07But among the new justices here points, one man will leave his mark.
00:11If people agreed with him, well and good. If they didn't, that was alright too.
00:17The overwhelming characteristic of the Rehnquist Court is confidence that we, the Court, are able to resolve all the most
00:23contested questions of national life.
00:25It's the Rehnquist Revolution, this time on the Supreme Court.
00:55Time to pick up the gun. Revolution has come.
01:04Time to pick up the gun. Revolution has come.
01:20Tonight it's time for some honest talk about the problem of order of the United States.
01:27I, in a sense, am in the ring tonight and I think this is the time and this is the
01:31place to take off the gloves and sock it to them.
01:34Time to pick up the gun.
01:41Ladies and gentlemen, the President of the United States.
01:48Richard Nixon rides into town and says, we will give you order. We will give you peace. We will give
01:55you what you want, which is security.
01:57So Nixon's promise is to end the chaos, to end the disorder. And part of that was, from his perspective,
02:06a function of the Court.
02:08Nixon's committed to appointing justices who will repudiate much of what the Warren Court's done.
02:17Nixon gets his chance and it's an extraordinary chance. This is something that no president since Roosevelt had had.
02:24He has four appointments in less than two years. There are nine people on the Court. That's almost half the
02:32Court.
02:32You wipe out almost half of the Warren Court in one fell swoop. So the stage is set.
02:49Nixon knew what sort of man he wanted. Strong conservatives who believed in law and order.
02:55Nominees from the South. And with judicial experience. And young enough to serve some decades on the Court.
03:02He wanted judges who would stick to the letter of the Constitution. And where it was fuzzy, let the government
03:08do what it liked.
03:09He called them strict constructionists. And to find them, a bright young man searched the rosters.
03:16The Assistant Attorney General, William H. Rehnquist.
03:20Strict constructionists became the code word for not people like those on the Court.
03:26Strict constructionists was going to favor government and law enforcement against individual liberties.
03:33And certainly those of criminal suspects.
03:38Ladies and gentlemen, I'm very proud tonight to nominate as the 15th Chief Justice of the United States, Judge Warren
03:47Berger.
03:54It wasn't all easy. Two Southern nominees, Clement Hainsworth and G. Harold Carswell, were rejected by the Senate.
04:03Nixon settled for Berger's childhood friend from Minnesota, the little-known Federal Appeals Court Judge Harry Blackman.
04:10And finally, he got one man from the South. Lewis Powell, a Virginian.
04:17But by then he'd burned through every name the Justice Department had collected.
04:27What about that Rehnquist fellow? Only 47. Perfect. Strong on law and order.
04:34Critic of the Warren Court since the early 50s. A former clerk for Justice Robert Jackson.
04:40Not that Nixon knew all that.
04:42Wrenchberg? Nixon asked.
04:45Is he Jewish?
04:47Nixon doesn't know him other than visually.
04:52And Rehnquist is something of a flamboyant dresser.
04:56He favored pink shirts.
04:59Richard Nixon was not a pink shirt kind of guy.
05:02Rehnquist had long hair.
05:03He wore it over his ears and he had long mutton-chop sideburns.
05:07He had been number one in his class at Stanford Law School.
05:11He had clerked for Justice Robert Jackson.
05:15He had written an article decrying the influence of liberal law clerks making the court too liberal.
05:22I remember him telling me a story that he won a lot of money in a betting pool because he
05:27was the only one who thought Eisenhower would beat Stevenson among the clerks for the presidency that year.
05:33So he always was by himself sort of politically in some ways.
05:38He was very, very smart.
05:41Very, very conservative.
05:43He thought the Warren Court stood for a court that was much too overly solicitous of criminal suspect rights and
05:51communist sympathizers.
05:56Rehnquist was the most active in the Nixon Justice Department in monitoring the work of anti-war groups who were
06:04thought to be a bit unpatriotic.
06:08Rehnquist's hard opposition to the anti-war groups rang the alarm bells in the Senate.
06:14And then there was an allegation that, back in Phoenix, he'd served as a GOP poll watcher trying to keep
06:20blacks from voting.
06:23It was certainly fact that he wrote in opposition to a public accommodations law, contending that all the law in
06:29the world wouldn't make whites like colored folk.
06:32So what was the point?
06:34In the Judiciary Committee, Lewis Powell sailed through by unanimous vote.
06:40Rehnquist got by the same day, but with noise, contention, and a solid block of Democrats against him.
06:56Between the Judiciary Committee voting him out and the full Senate considering his nomination,
07:01one of the magazines published a memo that he had written to Justice Robert Jackson about the court's landmark decision
07:09in Brown versus the Board of Education.
07:12And this memo made the argument that the court should not try to overturn racial segregation in the South.
07:20In the mid-60s, when this whole nation was pouring out its heart to those who had been discriminated against
07:25for a hundred years,
07:26the man who is now one step away from the Supreme Court was saying black people can't even go to
07:31drug stores to get an aspirin in Phoenix, Arizona.
07:34The white people of this country simply don't have the decency, for the most part, to recognize that a man
07:43who kicks Negroes in the teeth is unfit to sit on the Supreme Court of the United States.
07:51Let me tell you something. We've got much more right now on Rehnquist than we had on Carswell or Hainsworth
08:00when you fellows were saying you haven't got a chance.
08:04It was the personal attacks out of his earlier years in Arizona that I think were unexpected to him.
08:13And I know those affected him deeply and took him by surprise.
08:25I want to express my thanks to the Senate for having confirmed me, and again to the President for having
08:32shown the confidence in me that he did by nominating me,
08:35and to the many people in and out of government without whose loyal support the outcome might have been quite
08:40different. Thank you.
08:43Can you answer some questions?
08:45No, I'd rather not. Thanks.
08:52I'll give you only one last word of advice, because you're going to be independent, actually.
08:56And that is, don't let the fact that you were under heat change any of your abuse.
09:01I'll remember them, so just be as mean and rough as I said you were. Okay?
09:05Thanks, Mr. Penn. All right.
09:07Good luck.
09:08Bye.
09:10Mean and rough were about law and order, but that wasn't what he would run into.
09:16Before he could even take the oath, his fellow justices were hearing a little-known case that would push them
09:22onto new terrain,
09:23ground they weren't eager to traverse.
09:34You have a case coming from Texas, begun by a woman who, on paper at least, is named Jane Roe.
09:40She was 21 years old, she was pregnant, and she didn't want to have this baby.
09:45The Texas law was one of the strictest in the nation.
09:48It allowed abortion only in cases to save the life of the mother.
09:52So even if you had a situation where a young woman had been raped or the victim of incest, she
09:57still could not get an abortion in Texas.
10:01Equal pay for equal work! Join our crowd! Equal pay for equal work! Join our crowd!
10:08Women were by definition, by nature intended, many people believed, to take care of homes and children.
10:14And to say, that's not true, but that women have a right to be lawyers and doctors and police officers,
10:20that was radical.
10:23You have the Equal Rights Amendment moving through the Senate and the House.
10:27You have Ms. Magazine being started by Gloria Steinem.
10:31You have the American Civil Liberties Union starting a women's rights project.
10:35There's a lot of agitation in America over women's rights.
10:42There was an assumption that if you had a baby, if you were a mother, you were no longer entitled
10:47to pursue a career.
10:49Abortion rights meant, symbolically, that women did have choices. Women could say, not now, later, or not at all.
10:55I think the justices believed that the women's rights movement was so clearly the wave of the future that was
11:03just about to happen, that everybody's for abortion because everybody's for women's rights.
11:13In fact, in conference, there was an easy majority for striking down the Texas law.
11:19Warren Burger gives the opinion to his friend, Harry Blackman.
11:24Harry Blackman and Warren Burger had been childhood chums in Minnesota.
11:28Warren Burger, I think, believes that he could have more control over the opinion.
11:32Blackman didn't know why Burger assigned the opinion to him.
11:36Maybe because he'd been counseled to the Mayo Clinic back in Minnesota.
11:40But what would his doctor friends think about this case?
11:43Blackman was in turmoil.
11:46At home, his three grown daughters happened to be visiting.
11:49So at supper, Blackman put the question, what are your views on abortion?
11:54By the time his wife and three daughters sounded off on him, Blackman announced, I think I'll go lie down.
12:00I'm getting a headache.
12:03Justice Blackman was a very green justice at this point in his career.
12:07The workload is very tough.
12:08It's very much of a burden within the marble walls.
12:12From CBS News headquarters in New York, this is the CBS Evening News with Walter Cronkite.
12:20Good evening.
12:21In a landmark ruling, the Supreme Court today legalized abortions.
12:25The majority in cases from Texas and Georgia said that the decision to end a pregnancy during the first three
12:31months belongs to the woman and her doctor, not the government.
12:35Thus, the anti-abortion laws of 46 states were rendered unconstitutional.
12:42How in the world did such a conservative justice write this incredibly activist liberal opinion in Roe?
12:48Well, if you go back and read the opinion, it doesn't read as some sort of charter of feminist rights.
12:53It reads as a charter of doctors' rights.
12:56He actually researched the history of abortion, and his visceral response was,
13:02the state ought not to be telling doctors how to regulate pregnancy.
13:09Whether you like abortion or dislike abortion, you can't like Justice Blackmun's majority opinion.
13:17It tells you a lot about the history of abortion, but what the history of abortion has to do with
13:25the United States Constitution is a tie that Justice Blackmun was not able to make.
13:31This is an opinion that has a result, but without reason.
13:35He's looking at it in terms of a decision that should be left between a physician and a woman.
13:40But, of course, this is a test of what the Constitution holds.
13:44And what he ends up doing, in his opinion, is grounding it in a right of privacy.
13:50William Rehnquist was in the Justice Department and helped screen Blackmun.
13:54And here he sees this man writing this very expansive opinion in Roe vs. Wade.
14:00Lewis Powell is joining it. Warren Burger is joining it.
14:03And Rehnquist is by himself among the Nixon appointees at that time.
14:09Bill Rehnquist saw the Constitution very narrowly protecting individual rights.
14:15So he never could have envisioned a right of privacy to be found in the Constitution.
14:20Bill Rehnquist is arguing that the court has no business deciding it.
14:24There's no constitutional hook.
14:26Because you can't pretend that the text of the Constitution says anything about abortion.
14:32You can't pretend that the legislative history of the 14th Amendment says anything about abortion.
14:38You can't find a precedent in the Supreme Court that says anything about abortion.
14:43This one's out of the blue.
14:45Bill Rehnquist felt that the states should have primary authority in those matters that were most affecting people in their
14:52day-to-day lives.
14:53They knew how to handle their own lives and they didn't need a lot of supervision from the court.
15:00Less than ten years after the epic fight to end segregation, the idea that states could be trusted to be
15:06fair was not a widely held view on the court.
15:10Rehnquist ended up on the short end of so many eight-to-one votes, the clerk started calling him the
15:15Lone Ranger.
15:17It got to the point that a group of his early law clerks gave him a little Lone Ranger doll
15:21that he proudly displayed on the mantle in his chambers.
15:26But Justice Rehnquist came to the court with a well-defined legal philosophy and he was going to articulate it.
15:34Justice Rehnquist did have confidence that people can generally be trusted to do the right thing, at least in the
15:40long run.
15:41And I think that does color, to some extent, his view about the role of the Supreme Court.
15:46If you think people are basically pretty good, then you don't need a bunch of platonic guardians sitting in a
15:52marble hall in Washington, D.C., ordering them to do this or that.
15:57He stood by himself. It didn't seem to trouble him.
16:00Even though he was the only dissenter, he wasn't going to change his views and say,
16:04OK, you got me. I'm by myself.
16:07This is not an angry man. This is a man who is simply not winning at this point in time.
16:14He was not a self-doubter, nor did he think he had to impose his views on the rest of
16:21the world.
16:21He just set out what he believed and he thought it was persuasive.
16:26And if people agreed with him, well and good. If they didn't, that was all right, too.
16:32The court pecked at the borders of the Warren Court's work.
16:35Put a couple of dents in the hated Miranda warnings.
16:38But suspects still had the right to remain silent.
16:41They still had lawyers.
16:43And Rehnquist was still the Lone Ranger.
16:46Nixon's appointees didn't turn out to be a majority of their own.
16:50They joined the existing court majority.
16:52That was under the influence of one of the most liberal justices in history,
16:56William J. Brennan.
16:59Bill Brennan, over the 30-year period of his tenure on the court,
17:03had greater influence on domestic social policy than any president had had,
17:10and for that matter, than any other single individual had had.
17:13Justice Brennan was active in using the Constitution to reshape American law and politics.
17:18He had real empathy for people who were weak or powerless, who life had treated badly.
17:26And he believed that people should do what they could to help those people wherever they were.
17:32What was the Constitution for?
17:33What good was it if it didn't actually help to make the lives of the citizens of the United States
17:38better?
17:39Brennan's approach to law was that to have any impact on the law, you have to win the case.
17:45It takes five votes to win. That's the first thing he always told his critics.
17:49You can't do anything here without five votes.
17:52Brennan was adroit at doing what Warren did, which was walk the halls, work the justices, find out what could
18:01bring them to his position.
18:03He'd write memos.
18:04I don't think we're very far apart here.
18:06If I were to do this, could you see clear to sign the opinion?
18:10This is the Brennan style.
18:12It was like there was this magnetic field within five feet of him.
18:17And I always felt that when I got that close to him, I guess I could remember vaguely that there
18:23were some decisions of his that I disagreed with.
18:25But I couldn't really remember which ones or why I would possibly have thought such a thing.
18:30He just had such a powerful warmth to him.
18:35He was oftentimes able to reach in and win the case.
18:39Much to the consternation of Berger who had no strategic skills whatsoever.
18:46Warren Berger was a conservative.
18:48Fond of quoting a 19th century British historian who complained about the U.S. Constitution,
18:54it's all sail and no anchor.
18:59He was even fonder of traveling to London and living like a lord.
19:04But try as he might, Chief Justice Berger was not equipped to build a conservative majority on the court.
19:10He was never going to lead the counter-revolution.
19:15The job of leadership would fall to a man who cared for no perquisites.
19:20Comfy wallabies on his big feet and a cheeseburger for lunch.
19:24Bill Rehnquist.
19:26It was he who would take on Brennan and one of Brennan's most cherished decisions, Faye versus Neue, from back
19:33in 1963.
19:35The high-water mark of Warren Court activism.
19:42The criminal law jurisprudence of the Warren Court is just thoroughly tied up with the race issue.
19:47And it's very much undoing a deeply ingrained long-standing system that involved mistreating blacks in the south.
19:55Justice Brennan believes the federal courts were going to have to do something to push that system and make it
19:59change.
20:00And that's only going to happen if the Supreme Court can expand the authority of the federal courts so that
20:05the federal courts can begin to push the state courts.
20:07And that's what they did in Faye v. Neue.
20:10He didn't wish, and other justices on the court didn't wish, people to be languishing in jail because their convictions
20:18were obtained through violation of constitutional rights.
20:23It just doesn't seem fair.
20:25Faye v. Neue was Justice Brennan's magnum opus.
20:29It's a rhapsody.
20:30It's poetry.
20:31It's song.
20:32It's his ode to individual rights and to individual liberties.
20:37To Rehnquist, this ode looked like disrespect for the states and chaos in the federal courts.
20:43Brennan's opinion in Faye meant any convict could petition to overturn what the state had done.
20:49And thousands did.
20:51Federal courts were swamped.
20:53In 1977, in Wainwright v. Sykes, Rehnquist saw his chance to restore some order.
21:01This was the ground where the Nixon justices could make their stand, criminal procedure.
21:07And it was a states' rights issue where Rehnquist's long years as the Lone Ranger might pay off.
21:14Sykes had been convicted of third-degree murder based on confessions he had made to his wife and to the
21:21police.
21:22He called his wife and told her that he had killed somebody.
21:25His wife called the police.
21:26The police came to his trailer, found him there, found a dead body.
21:30He told the police what he had done.
21:32He was read his Miranda warnings.
21:34He was eventually convicted of the crime.
21:38But five years later, the case arrived at the Supreme Court.
21:42With Sykes's lawyers claiming that the state had violated his constitutional rights.
21:47Because he'd never understood he had a right to remain silent.
21:51Sure, he never mentioned this in Florida courts, in any of his trials.
21:55But now, his confession, his conviction, it should all be thrown out.
22:00Rehnquist thinks of the defense lawyer as this shifty, ingenious person who's sandbagging his arguments
22:07because he wants to keep them away from the state court
22:10and go straight to a sympathetic, lefty federal judge if he can get one, right?
22:15Whereas Brennan is thinking of these mistakes as arising from the fact that most defendants in state courts
22:20don't have very good lawyers.
22:21So these are just honest mistakes being made.
22:25From Justice Rehnquist's point of view, Sykes had his day in court.
22:29He didn't say anything.
22:30Then he had a chance to appeal the issue, and he still didn't say anything.
22:33You get a reasonable number of bites at the apple, and that's the end of it.
22:38That's what finality means.
22:40And he would say that's doubly true when it's a federal court that's being used in this way
22:45to re-litigate issues that have already been litigated fully and completely in the state court.
22:52Rehnquist says, and this is the law is a cold but clear arbiter, if you're going to make that argument,
22:58you have to make it in state courts because state courts deserve respect.
23:02To somebody like Rehnquist, the law is about rules.
23:06Rules must be followed.
23:08The law's job is to order.
23:11It is not to foster progress.
23:15I think Justice Rehnquist's persuasive explication of his views in some of his early opinions gradually took hold.
23:21People read them, thought about them, and gradually said, well, wait a minute, there might be something to this point
23:26of view.
23:28Intellectually, Rehnquist is clearly the leader there.
23:30He has the clearest vision and the best skills to produce the outcomes.
23:35Certainly, none of the other conservative justices could have done that anywhere near as well as he did.
23:42The vote in Sykes is 7 to 2.
23:46All the Nixon appointees, Byron White, Potter Stewart, and John Paul Stevens, the new Ford appointee,
23:53in the majority, with Rehnquist writing for the majority, protecting the autonomy of state criminal systems,
23:59with Brennan and Marshall, the two holdovers from the Warren Court, in dissent.
24:04And Rehnquist, Nixon, got it right.
24:12You place your left hand on the Bible and raise your right hand and repeat after me,
24:18I, Ronald Reagan, do solemnly swear.
24:20I, Ronald Reagan, do solemnly swear.
24:23The kind of vision that Rehnquist stood for, which was so unusual in the 1970s,
24:30becomes much more possible when you have this much more conservative president preparing to make appointments to the court.
24:37Ronald Reagan had a very strong feeling about the importance of states having the ability to truly represent their people
24:44in determining policy.
24:46He felt that that was true, particularly as a matter of what the court should be doing.
24:51Richard Nixon's strict constructionists had failed to change the court's direction.
24:56Now the buzzword wasn't law and order, but something more ambitious.
25:03The Reagan right didn't just want to untie the hands of police.
25:07They wanted to crack down on obscenity and godlessness,
25:10put a stop to affirmative action and abortion rights,
25:13the agenda that would come to be known as family values.
25:20The social issues just had not been on anybody's mind when Nixon made his nominations to the court.
25:25Those emerged in the 1970s, and those are the major issues as the court moves into the 1980s.
25:33And the pressures on a president are to appoint justices who are going to now undo, ironically, decisions of the
25:39burger court.
25:41The Reagan Justice Department didn't want to make Nixon's mistake.
25:45They looked back and said, look, he put four people on the court and nothing changed.
25:50They gave us Roe versus Wade and all these other opinions.
25:53We're going to do it differently.
25:55We're just two, three months into President Reagan's term,
25:58and Potter Stewart privately reveals that he wants to step down in June of 1981.
26:04And remember, Ronald Reagan had said during his campaign that if elected,
26:09he would appoint the first woman to the Supreme Court.
26:13Who do you appoint? Where do you find this woman?
26:16Jimmy Carter appointed more women to the federal courts than all other presidents combined before him.
26:22So you have women in the federal courts, but they're all Carter appointees, liberal Democrats.
26:28Ronald Reagan's not in the business of putting liberal Democrats in life-tenured positions.
26:33So you have to look outside the usual pool where you fish.
26:38And he cast his line to Arizona.
26:41These people standing on the stepladders are not fruit pickers.
26:44They are the White House press waiting for President Reagan and Judge Sandra O'Connor to stroll casually into view.
26:50Sandra Day O'Connor really wasn't well known in legal circles, but she had deep political connections.
26:57Every step she had made before this point had brought her more into the sphere of national politics.
27:05She was a good friend of Barry Goldwater's, the conservative senator from Arizona,
27:09who was actually the precursor of the conservatism that Ronald Reagan brought to Washington in 1981.
27:16Through serendipity, she had met Chief Justice Warren Burger in 1979 on a houseboat vacation on Lake Powell in Utah.
27:25So even though it seemed like a lightning bolt out of the blue, a lot of groundwork had been laid,
27:30and some by herself.
27:31Good morning. Good morning.
27:34Well, I hope so.
27:36She knew the burden she was carrying as the first woman to be in that exalted a position in our
27:42government,
27:43and that people were going to see this as an experiment.
27:46I didn't know if I had the experience that would enable me to do a good job on the court.
27:53It's wonderful to be the first to be asked to do something, but I didn't want to be the last.
27:59And for me to take that job and not perform it well enough could have been a disaster for women.
28:06It was my husband who said,
28:09Sandra, you have to do it. Of course she'll do fine. Of course she will.
28:17In the hubbub about the first woman on the court, it was little remarked that Sandra Day O'Connor was
28:23also an old friend of Bill Rehnquist.
28:25They'd met when she was just 16. They were law school classmates and even dated.
28:31They were both lawyers in Phoenix, comrades in arms in the Goldwater Crusade.
28:36The expectation, at least in the White House, was that Rehnquist at last would have a sure ally on the
28:42court.
28:45The hope is that she's a vote against Roe v. Wade.
28:49The hope is that she's a vote against kicking God out of the public schools.
28:54The hope is that she's a vote against affirmative action.
29:05In 1986, Chief Justice Berger came to the President very privately
29:09and told him that he would like to retire from the court.
29:14In this case, the President kept it very quiet.
29:20We're all in chambers one day just working on stuff and somebody comes down and says,
29:24oh quick, come down to the conference room, which had never happened.
29:28All of the clerks are there and all of the justices are there too, except for Berger and Rehnquist.
29:32And they'd set up a TV.
29:35Reagan called a press conference at one o'clock in the afternoon
29:38and the members of the news media had no idea why this was called.
29:42Speak strongly urged the networks to carry it, which obviously means they think it's some sort of dramatic news.
29:49Ladies and gentlemen, the President of the United States.
29:55When President Reagan walked in with Chief Justice Berger as well as Justice Rehnquist
30:00and Court of Appeals Judge and Antonin Scalia, it took the press totally by surprise.
30:06It was one of the few instances in eight years that there was absolutely no leak in advance of what
30:12was happening.
30:13Today, I received with regret Chief Justice Berger's letter formally notifying me of his retirement.
30:20And I'm pleased to announce my intention to nominate William H. Rehnquist as the new Chief Justice of the United
30:26States.
30:27Upon Justice Rehnquist confirmation, I intend to nominate Antonin Scalia,
30:32currently a judge of the United States Court of Appeals for the District of Columbia Circuit.
30:40You, sir, have had a reputation more as a thinker and writer on the court than as an administrator.
30:47Do you consider it the culmination of a dream to be Chief Justice?
30:51I wouldn't call it the culmination of a dream, but it's not every day when you're 61 years old
30:55that you get a chance to have a new job.
30:59You take on some things you don't like along with a lot of things that you do like.
31:03In that perspective, there's a perfect...
31:05The reactions in the room were kind of like a mixed, like, wow.
31:08And then those few of us who knew something about Scalia, it was a kind of, uh-oh.
31:13You know, because he is out there.
31:17Antonin Scalia was the real thing.
31:19He believed in state power. He believed in government power.
31:21He took a narrower view of individual rights.
31:24He was conservative on law and order.
31:27To have the two of them come on the court together at the same time,
31:31that's a very powerful package on the court.
31:36Antonin Scalia charmed the Senate and sailed through 98 to zip.
31:41Rehnquist was confirmed by the Senate,
31:43but not without breaking his own record for the greatest number of no votes.
31:48The Senate was voting on supposed ideology.
31:52Inside the court, ideology wasn't the big issue.
31:56Rehnquist would do the Chief's job happily and well.
31:58He had to be an improvement.
32:00Sir, what will you miss most about being Chief Justice?
32:04I don't know.
32:05Really nothing.
32:10Berger was a ham-handed Chief Justice.
32:14He wasn't particularly competent in his opinion writing.
32:18It's good to see him go.
32:21And no one ever looked back.
32:24When Rehnquist came in as the new Chief Justice,
32:26actually it was a relief to his colleagues,
32:28no matter what their ideology was, because he ran the court well.
32:32And while we think of the role of the court in the country,
32:35the other justices think of it as their job.
32:37Rehnquist had the respect of the other justices.
32:41He had a certain intellectual rigor that they appreciated.
32:46Secondly, he was quite fair-minded.
32:49He was never a believer in the self-importance of the job.
32:53Very self-deprecating.
32:55If people saw him walking, they would never imagine that this man
32:58was the member of the greatest judicial body in America.
33:01They might think he just came out of a bowling alley or a corner pub
33:05or something like that.
33:08Rehnquist didn't care for ceremony.
33:10Meetings were quick.
33:12He liked to joke.
33:13He'd bet you on anything.
33:15The amount of snow that would fall that day on Capitol Hill,
33:18as measured by the Chief Justice of the United States.
33:22But the Reagan White House didn't make him chief because he was well-liked.
33:26They looked to him as the man who could pull the court to the right.
33:30Their revolution could last for 20 years.
33:33If they could somehow supply their new chief,
33:36enough votes for a working majority.
33:39In 1990, William Brennan retires.
33:41The following year, Thurgood Marshall steps down,
33:44and this closes off an era.
33:46Both of them represented the real liberalism of the Earl War in time.
33:53The retirements represented the possibility of a genuine change in the court's jurisprudence.
34:00Because it was a seismic event, to say the least.
34:06Anthony Kennedy in 1988.
34:10David Souter in 1990.
34:13Clarence Thomas in 1991.
34:18Now there was a clear majority appointed by Presidents Reagan and Bush.
34:24And with this remade court, Rehnquist would lead a revolution.
34:29Just not the one people expected.
34:35The emotional display outside the Supreme Court with pro-choice and pro-life activists facing off with their familiar props
34:42and chants and placards,
34:44and other spectators so determined to get in to hear the oral arguments they camped out all night in the
34:49rain.
34:50The display was a sharp contrast to the remarkable lack of emotion inside.
34:56The abortion issue had been very difficult for the court ever since the decision in the 1970s in Roe against
35:06Wade.
35:07There are a great many in the country who never accepted its holding.
35:12And Casey put the court right back in the middle of the issue.
35:18The belief was in early 92 that the decision in Roe versus Wade might be overturned.
35:25That there might finally be a majority on the court of Republican appointees who are ready to overturn the court's
35:30precedent in Roe versus Wade.
35:32By the time Casey comes to the court, the question is, are they going to do what they were put
35:37there to do?
35:39I think there are votes on this court that would take away a fundamental constitutional right.
35:44We believe that's an extraordinarily radical step for the Supreme Court of the United States to bestow a fundamental right
35:50and then take it away from the millions of Americans that rely on that right.
35:58Justice O'Connor becomes a figure of great interest and curiosity because she was one of the justices in the
36:041980s who began to argue against certain elements of the Roe versus Wade opinion.
36:09Her argument had been that as long as there was no undue burden on the woman, that you could regulate
36:16the abortion decision.
36:18You have the remaining liberals, you've got these new conservatives really digging in on the right, and she's able to
36:24negotiate at the center, which gives her power.
36:27She would stand in this pastel suit with her white handbag dangling from her arm, seeming so non-threatening.
36:33She took advantage of that behind the scenes. She never bullied justices to her position. She sort of coaxed them
36:39over.
36:41Well, one always hopes in crafting an opinion for the court that it will settle the issue for a time
36:48at least.
36:49Basically, we ended up with a joint opinion written by me and Justice Kennedy and Justice Souter.
36:57I think a reader of the opinion will find that we did not accept the trimester rigid framework of Roe
37:07against Wade,
37:08but basically did not vote to just overturn it outright, impose what we thought or we hoped would be reasonable
37:18limitations on the doctrine.
37:20And it was very difficult.
37:23It's clearly an effort in an act of judicial statesmanship.
37:27The heart of the opinion is whatever we think about Roe versus Wade, we can't be seen as overturning an
37:33opinion because of political pressure.
37:36Prior opinions of the court become part and parcel of the law, just as much as if Congress had passed
37:43a law.
37:44And we're bound by that precedent unless a later court determines that some prior holding must be overturned.
37:53It's not something that the court does lightly.
37:57And that, of course, precedent was a very big issue in the Casey decision.
38:05Rehnquist had lost another abortion case, a dissenter again.
38:10Justice Kennedy came to apologize for changing his vote.
38:14Rehnquist shrugged it off.
38:16Just get your opinion out in expedient fashion.
38:20Win or lose, this was Rehnquist's court.
38:23He didn't want it to fall behind.
38:25It's very interesting to compare Rehnquist and Scalia's dissents in the Casey case.
38:30Rehnquist is very laconic.
38:32He essentially says, the majority's got to decide, but I'm not that personally invested in which way it decides.
38:37By contrast, Scalia is angry and apocalyptic.
38:41The dissent is almost a judicial primal scream from Scalia in that you can see the conservative tide cresting just
38:51short of the beach, right?
38:53They're one vote short of where they wanted to go.
38:57And as it goes back out to sea, you get this very, very angry opinion.
39:03The imperial judiciary lives, Scalia wrote.
39:07It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges, leading a Volk who will be
39:15tested by following,
39:16with a somewhat more modest role envisioned for these lawyers by the founders.
39:21There's truth to Scalia's statement, except it's applicable to Scalia as well, who is no different than any of the
39:26others in this.
39:27He just has a different set of issues unto which he's willing to speak as the imperial judiciary.
39:33They aren't, in general, a deferring bunch.
39:36The trademark of the Rehnquist Court beginning in Casey is that we are supreme in constitutional interpretation.
39:47It isn't, as the Warren Court said, we make the rules of the game.
39:52The Rehnquist Court thought, we are the game.
39:57The chief himself knew which way the wind was blowing.
40:01Power for a Rehnquist Court could bring back power to the states.
40:06For 22 years, Rehnquist had been fighting federal mandates, civil rights orders, minimum wage laws, racial quotas,
40:14as Congress extended its reach into every cranny of the country.
40:20Rehnquist disliked that. He said, no, the Congress's commerce power can't be endless.
40:25There has to be some limit to it in the interest of federalism and local competence.
40:31Since the New Deal, the scope of Congress's powers had been pretty much resolved in Supreme Court decision making.
40:38The justices had said for 50 years that under the Congress's authority to regulate commerce,
40:44if it wants to regulate things, then it's up to Congress to decide how broad that authority should be.
40:52In 1994, Rehnquist got a case where he could finally draw the line.
40:58United States versus Lopez was a challenge to Congress's power to make a federal law against bringing a gun near
41:04a school.
41:05There was already a state law in place.
41:08More to the point, what did keeping guns away from schools have to do with interstate commerce?
41:15The theory on which Congress could regulate it is this.
41:19If you have guns in schools, it's bad for education.
41:22And if kids are badly educated, they're going to do poorly in the workforce.
41:26The national economy is going to suffer.
41:28Therefore, commerce generally among the states will suffer.
41:32That's the theory on which Congress passes it.
41:35What the court does in Lopez is say by a vote of five to four that Congress doesn't have the
41:42authority under the Constitution to regulate schools in this way.
41:48If this is to be regulated, it is to be regulated by states.
41:52This was the first time in 60 years that the court had limited Congress's commerce power.
41:59I had taught generations of law students that they would never live to see the day when the court said
42:05Congress has any limit to its commerce power.
42:08Well, they did.
42:08It was one of the great and important constitutional revolutions since the New Deal, and it was led by Chief
42:15Justice Rehnquist.
42:20But this didn't look like the revolution the right had intended.
42:24So far, the Rehnquist court hadn't outlawed abortion, hadn't attacked obscenity, or put prayer back into the public schools.
42:31They hadn't even rolled back one of the most reviled of the Warren court decisions, the Miranda warnings, the very
42:38notion of telling cops what to say.
42:41The Rehnquist court had a chance to wipe out Miranda in the year 2000, in Dickerson versus United States.
42:48Congress itself had enacted legislation that seemed to overrule the Miranda decision.
42:53The Supreme Court could simply uphold the legislation.
43:08William Rehnquist hated Miranda, hated the Miranda rights, thought the court had no business imposing those rules on the police.
43:17If one reads Miranda, it's not clear whether it comes out of the Constitution or whether it's simply something which
43:24the court has created as a court-made remedy.
43:28Rehnquist, throughout the 70s, in his Lone Ranger days, was more than happy to say Miranda is not a constitutional
43:36decision.
43:36It should be reversed.
43:38So Dickerson comes to the court, Miranda's got to go.
43:42The logic would be.
43:43I do think there's a special responsibility that comes with being the Chief to look out for the institutional stability
43:52and security and prerogatives of the court.
43:55And I'd be surprised if Justice Rehnquist's view on a number of areas didn't change when he moved from an
44:04associate justice to being the Chief Justice.
44:07I suppose that perhaps the clearest example of that was his opinion in the Dickerson case.
44:13Miranda stays by a vote of 7-2, and it stays with one-time critic William Rehnquist writing the majority
44:20opinion and saying not only is Miranda sound precedent, but Miranda is correct.
44:27The Constitution requires police to read criminal suspects their rights.
44:34Maybe Miranda should be overturned, but if it's to be overturned, it's got to be us and not Congress.
44:39So actually the opinion he writes is one about judicial supremacy, which is Congress has no business telling us what
44:46the Constitution should be interpreted to mean, and so this law can't do it.
44:50This was the full flower of the Rehnquist court.
44:54It wasn't a social counter-revolution.
44:56It was a revolution in the power of the court itself.
44:59The overwhelming characteristic of the Rehnquist court is confidence, self-confidence that we the court are able and ready to
45:08resolve all the most contested questions of national life.
45:12The Rehnquist court drew the line on abortion, on affirmative action, on criminal procedure, and on the power of Congress.
45:21Most important, on the subject of what the Constitution allowed, this court made sure no one else could draw the
45:27line.
45:30And for the most part, the nation approved.
45:33In the year 2000, 85% of the U.S. public expressed confidence in the Supreme Court.
45:40Rehnquist and his court would put that public confidence on the line.
45:45Florida today began an official vote recount.
45:48Bush leads Gore in the state by just a minuscule percentage, now down to about 1,400 votes total.
45:56Whoever wins Florida will pick up 25 electoral votes, topping the 270 needed to be elected president.
46:13The shouting may have subsided now after the most contentious, some say most suspect presidential election in history, but the
46:20battle goes on.
46:21We vote, we vote, we vote, we vote.
46:23Thousands of people in Palm Beach are asking for another chance to vote in this election.
46:28You voted, you're lost, give it up.
46:30At issue, the ballot.
46:31We think of presidential elections as kind of national elections, but actually each presidential election is an election made in
46:38each individual state about how that state is going to choose its presidential electors.
46:43And the assumption was that this is a matter for state law.
46:47They make the final decision.
46:55Everybody has a different impression of what's about.
46:57One says it's a dimple, one says it's a pimple, one says it's pregnant, one says it's a hanging door.
47:02So the Chad, as it's become known, is probably the most misunderstood terminology in America.
47:09The justices took a look at what was happening and said, you know, this is awful.
47:13This is a mess.
47:14Somebody has to clean this up.
47:16Who better than us?
47:18People trust us.
47:20We can bring this to a halt.
47:23Given the institutional authority of the court and the generally high regard with which it is held,
47:29Franklin's perception is the court can do this.
47:33It's a short, sharp shock.
47:36You go in knowing that this is going to be a one of a kind experience and you end the
47:41trauma.
47:42And that may have been the logic of it.
47:44But notice that's not a legal logic.
47:46It's a political logic.
47:49In fact, when the Rehnquist court accepted the petition for review,
47:53it ripped the case right out of the hands of the Supreme Court of Florida.
47:59We'll hear argument now in number 00949, George W. Bush and Richard Cheney versus Albert Gore et al.
48:07The people who usually argue for states' rights, Rehnquist, Scalia, O'Connor, Kennedy, and Thomas,
48:15are in the majority imposing on the state of Florida.
48:20Bush v. Gore said to the Florida Supreme Court,
48:23Court, you have changed the counting standard in the middle of the election.
48:28Therefore, the manual recount has to stop.
48:33Notwithstanding their usual view that state courts have competency to read state constitutions,
48:40so they stepped in, they slapped down the Florida Supreme Court.
48:44Now, there's an act of self-confidence.
48:48There's a court that believes it knows where it's at,
48:51knows who's got the final answer, and is willing to tell the country as much.
49:01It is an extraordinary statement of the esteem in which the Supreme Court has held,
49:06that the court could decide a very disputed presidential election in a very disputed way.
49:11And yet, a few months later, the court's reputation is as strong,
49:15and the esteem in which it's held is as high as it ever was.
49:18When polls were taken, the question was put,
49:21do you think the court was being partisan?
49:24The majority of people said yes.
49:26But interestingly enough, people trust the court,
49:30so there's an ability of people to entertain two conflicting views.
49:34Bush v. Gore is partisan, but we trust the Supreme Court.
49:41Rehnquist gave most of his life to the court.
49:44In almost two decades as its chief, he was its protector,
49:47as had been all the great chief justices.
49:50Back to John Marshall.
49:53When Rehnquist died as chief in 2005,
49:57people talked about him as an unassuming man.
50:01Friends recalled his addition of gold stripes to his robe as a whimsy inspired by light opera.
50:07He eschewed real drama.
50:09He didn't seek the limelight.
50:11But he left the court with an authority that it didn't have when he came.
50:17Isn't that interesting that here's William Rehnquist, who comes to the Supreme Court,
50:22in 1972, appearing to represent a point of view that wishes to curb and curtail judicial power,
50:29who then, many years later, is among those who joins the majority in Bush v. Gore,
50:34which may well be as activist opinion as the modern Supreme Court has handed down.
50:40I'm not sure the Warren Court would have taken Bush v. Gore.
50:44I think we're going to look back on the Rehnquist Court as having been one of those truly historic, discernible
50:51chapters in the court's history.
50:54He would have loved to have seen Roe v. Wade overturned.
50:57He would have loved to have seen prayer in school.
51:00He would have wanted to see more movement in terms of social issues to reverse the legacy of Earl Warren.
51:06He didn't get that. But he did get other things.
51:10William Rehnquist will go down as one of the most influential chief justices in history,
51:15and really for two reasons.
51:17He brought back the states as central players in American constitutionalism,
51:22and required Congress to defer to them.
51:25And he was quick to assert judicial supremacy,
51:27and was quite confident in having the court decide contested constitutional issues,
51:33even if that meant setting aside a large number of acts of Congress,
51:36or acts of state legislatures, or actions taken by the president.
51:39His was a strong, muscular view of the role of the Supreme Court.
51:52We've come a long way since Marbury v. Madison,
51:55when Justice Marshall very gingerly tried to suggest that the Jefferson administration wasn't doing the right job.
52:02It's a court that has developed enormous power and enormous prestige in the political system.
52:08The Supreme Court of the United States is the most powerful judicial tribunal in the world.
52:13It tells us what the relationship of the co-equal branches of the federal government are,
52:19and what the relationship of the federal government to the states are,
52:22and what the relationship of government is to individual rights and liberties.
52:27Well, that's a very broad mandate.
52:30The court is no longer timid.
52:32Both the left and the right on the court are activists.
52:35If by that you mean judges who see their essential role as deciding the hard questions that are facing American
52:43society,
52:43I don't see any tendency to hold back.
52:46Today, the court stands as a huge institution at the center of American politics,
52:53and whether that's a good or a bad thing is a question that people really ought to think about.
52:59The legitimacy and the acceptance of what the court does depends upon how people view the institution.
53:06The court is always vulnerable and has been throughout its history.
53:10And I think justices, myself and others, should view ourselves as trustees of an extremely valuable institution
53:17that has built up over the centuries and has served the country very well in ensuring the rule of law,
53:22and has the ability to reach unpopular decisions that will nonetheless be followed.
53:35For more on landmark cases, the personalities behind the robes,
53:40and significant moments in Supreme Court history, visit pbs.org.
53:50The Supreme Court series is available on DVD for $79.99.
53:54A companion book is available for $25 plus shipping.
53:58To order, call 1-800-336-1917 or write to the address on your screen.
54:04Thank you very much for your attention.
Comments