Chief Justice William Rehnquist and corrections law.

At his death in September 2005, Chief Justice William Rehnquist (1924-2005) left a legacy of significant influence over developments in federal law, including corrections law. Serving for 33 years, Rehnquist was one of only 15 justices in history to serve more than 30 years on the U.S. Supreme Court. He was an associate justice from 1971 through 1986, before being appointed by President Ronald Reagan to serve as chief justice, the position he held at his death. The reach of Rehnquist's influence over corrections law is explained both by a historical development and the authority he wielded on the nation's highest court. First, Rehnquist's service on the Supreme Court coincided with the period in which corrections law experienced its most active and significant development, making him a participant in nearly all of the Supreme Court's decisions that affected the current definitions of inmates' rights and corrections officials' authority. Second, as chief justice of the United States from 1986 to 2005, Rehnquist had opportunities to influence the development of the law in ways that were unavailable to other justices.

Corrections Law Before Rehnquist

Prior to Rehnquist's appointment as associate justice in 1971, the Supreme Court decided relatively few cases that shaped inmates' rights and the authority of corrections officials. The high court's decisions in Ex parte Hull (1941), Cooper v. Pate (1964) and Johnson v. Avery (1969) played an important role in giving inmates access to the court, but they did not define the contours of specific constitutional rights possessed by convicted offenders.

Beginning in the 1960s, federal judges in the lower courts began to decide specific cases, giving definition to rights concerning religion, use of force and additional aspects of the First Amendment, Eighth Amendment, and other rights granting provisions of the U.S. Constitution (Feeley and Rubin, 1998). Such cases included Jackson v. Bishop (1968), an 8th Circuit U.S. Court of Appeals decision prohibiting corporal punishment in prisons, and Fulwood v. Clemmer (1962), a federal district court decision from the District of Columbia acknowledging religious rights for Muslim inmates. Specific rights were being defined by these lower courts, but more important the courts provided a stream of corrections law decisions that were eligible for subsequent review by the Supreme Court. The Supreme Court did not agree to review many of these early decisions. However, the nation's highest court began to accept corrections law cases in the 1970s, when Rehnquist was an associate justice. The court increasingly addressed such issues in subsequent decades while Rehnquist served as chief justice.

Rehnquist's Earlier Influence

Scholars who study judicial decision-making have identified themes in Rehnquist's opinions. These themes were often evident in his votes and opinions in correctional law cases. Prof. Sue Davis from the University of Delaware identified several key themes in Rehnquist's judicial philosophy. She saw Rehnquist as emphasizing democratic processes and majority rule while "deemphasizing the notion that the Constitution protects certain individual rights regardless of the will of the majority" (Davis, 1991). Based on this viewpoint, Rehnquist argued that judges should restrain themselves from impeding the decisions of elected officials (Whittington, 2003). Under Rehnquist's judicial philosophy, judges should not recognize specific rights unless those rights are evident in the Constitution's specific words (Davis, 1991). In addition, Rehnquist's approach to federalism led him to defend states' authority to handle many public policy matters without interference from either Congress or the federal courts (Davis, 1991). In the context of corrections law, these elements of Rehnquist's judicial philosophy led him to recognize few rights for inmates and to define those rights in limited ways. Moreover, Rehnquist advocated deference to corrections officials in determining which policies, procedures and regulations were necessary for maintaining order and security in correctional institutions.

An examination of Supreme Court cases reveals that Rehnquist supported the recognition of rights for convicted offenders only when those rights were limited. For most of his career on the Supreme Court, when Rehnquist supported an opinion endorsing inmates' rights, the justices who disagreed with the majority sought broader rights for inmates. In cases seeking to expand previously recognized rights, Rehnquist often objected to expanding rights. Only when justices Antonin Scalia and Clarence Thomas joined the Supreme Court in 1986 and 1991, respectively, did cases arise in which Rehnquist endorsed a right for convicted offenders while facing criticism by colleagues who believed that the right should not exist. Prior to the arrival of these two justices, known for holding a more restrictive view of inmates' rights, Rehnquist was the justice most likely to object to the expansion of rights for convicted offenders.

In several of Rehnquist's earliest corrections cases, he joined eight-member majorities in recognizing limited rights for convicted offenders. In Morrissey v. Brewer (1972) and Gagnon v. Scarpelli (1973), he endorsed opinions defining limited due process rights in cases of parole and probation revocations. However, these majority opinions rejected more extensive procedural rights, including the automatic provision of a right to counsel. In Estelle v. Gamble (1976), the Supreme Court's first case identifying a specific right for incarcerated offenders under the Eighth Amendment's cruel and unusual punishment clause, Rehnquist was part of the eight-member majority that announced a limited right to medical care. Although the decision imposed a specific obligation and associated expenses upon correctional departments, the Supreme Court simultaneously provided a measure of protection for corrections officials. The decision imposed upon the inmates the requirement of proving "deliberate indifference" by corrections officials in order to win a lawsuit for a violation of this right (Smith, 2001). In each of these cases, the dissenting justice argued for broader rights for convicted offenders.

Similarly, in other cases in which there were greater divisions within the court, Rehnquist supported the recognition of limited rights, while several of his colleagues argued for even broader rights for convicted offenders. For example, in Wolff v. McDonnell (1974), Rehnquist endorsed limited due process rights in prison disciplinary proceedings, and in Procunier v. Martinez (1974), he recognized limits on prison officials' authority to censor mail between inmates and correspondents outside the prison.

Justice Rehnquist was also a member of majorities that rejected efforts to recognize the existence of rights, such as in Pell v. Procunier (1974), when the court declined to recognize a First Amendment right for journalists to meet with and interview incarcerated offenders. In Meachum v. Fano (1976), Rehnquist supported the majority's rejection of a right to a hearing prior to transfer between correctional institutions, while three justices--John Paul Stevens, William Brennan and Thurgood Marshall--dissented.

When Chief Justice Warren Burger selected Rehnquist to write opinions for the court, those opinions typically limited the expansion of rights for convicted offenders and often preserved the decision-making authority of justice system officials. Rehnquist's majority opinion in Ross v. Moffitt (1974) halted the expansion of the right to counsel that had continued to develop from Gideon v. Wainwright (1963), indigents entitled to trial counsel when facing serious criminal charges, and Douglas v. California (1963), indigents entitled to counsel for first appeal of right, through Argersinger v. Hamlin (1972), indigents entitled to trial counsel whenever facing the prospect of incarceration. Rehnquist's opinion in Ross emphasized that there is no constitutional right to appeal a conviction, and, therefore, the majority of justices declined to expand any right to representation for discretionary appeals, such as those taken to a state supreme court.

Rehnquist emphasized that "this court has repeatedly recognized the need for major restrictions on prisoners' rights" in his majority opinion in Jones v. North Carolina Prisoners' Union (1977). His opinion rejected the inmates' First Amendment claims concerning restrictions on their organizing activities related to an inmates' union that was tolerated by corrections officials. Rehnquist's statement about the limited nature of inmates' rights reflected the theme of his opinions in several of the court's most important corrections law cases of the Burger Court era (1969-1986).

Justice Rehnquist's majority opinion in Bell v. Wolfish (1979) was particularly important for its strong statement endorsing corrections officials' policy-making authority and reiterating the need to limit rights for incarcerated individuals. In addition, the Bell opinion is widely regarded as one of the key statements from the Supreme Court warning the lower federal courts to limit any inclination to expand constitutional rights in the corrections context (Robbins, 1980). Rehnquist's opinion rejected challenges to various policies and procedures at a federal jail. The opinion effectively emphasized deference to corrections officials in approving policies concerning such matters as double-bunking, body-cavity inspections and restrictions on items that detainees could receive. Of particular significance was Rehnquist's statement that unnconvicted pretrial detainees are subject to restrictions on rights in a manner similar to that of convicted offenders in prison when those claimed rights collide with policies and procedures that corrections officials assert are necessary for institutional safety and security. According to Rehnquist, "The fact of confinement as well as the legitimate goals and policies of the penal institution limits ... retained constitutional rights.... This principle applies equally to pretrial detainees and convicted prisoners."

Consistent with the important themes of his judicial philosophy, Rehnquist also forthrightly instructed lower court judges to show greater deference to correctional administrators: "[J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the legislative and executive branches of our government, not the judicial."

During the Burger Court era, Rehnquist also asserted himself by dissenting against two of the Supreme Court's most important rights-endorsing decisions. Bounds v. Smith (1997) was a Supreme Court decision with broad impact, including attendant financial burdens for state departments of corrections, because it mandated the provision of prison law libraries unless alternative means of legal assistance for inmates were provided by corrections officials. In dissenting against the court's decision, Rehnquist strongly objected to the majority's reasoning and conclusions concerning inmates' right of access to the courts. According to Rehnquist, "There is nothing in the United States Constitution which requires that a convict serving a term of imprisonment in a state penal institution pursuant to a Final judgment of a court of competent jurisdiction have a 'right of access' to the federal courts in order to attack his sentence." Rehnquist saw the right of access as merely meaning that corrections officials could not stop inmates from filing petitions in court. However, he would have imposed no affirmative obligation on prison officials to supply resources that would enable inmates to file those petitions.

Hutto v. Finney (1978) is generally regarded as the case in which the Supreme Court endorsed the authority of lower court judges to order extensive remedies for conditions of confinement found to violate the Eighth Amendment's cruel and unusual punishment clause (Smith, 2000). The case concerned crowding, sanitation and nutrition in punishment cells in an Arkansas prison. In Hutto, Rehnquist asserted himself in dissent by arguing that due to the descriptions of the awful conditions in the punishment cells, "the court has allowed itself to be moved beyond the well-established bounds limiting the exercise of remedial authority by the federal district courts." He claimed that the district judge should not be permitted to include within the remedial order any injunctions against conditions that have not been shown to violate the Constitution. In effect, Rehnquist was opposing the kinds of broad remedial orders through which federal judges impacted myriad conditions of confinement, including those that were not necessarily the focus of the litigation. Consistent with Rehnquist's philosophy of judicial deference, he argued that the majority's decision in Hutto was "a totally unnecessary intrusion upon the state's conduct of its own affairs" and that "neither this court nor any other federal court is entrusted with ... a [prison] management role under the Constitution."

In retrospect, Rehnquist's strong stand against the Supreme Court's Hutto decision raises questions about his thematic priorities with respect to constitutional rights. It appears that Rehnquist's commitments to federalism and judicial deference to elected officials were often higher priorities than ensuring that constitutional rights were rigorously protected. According to Tushnet (2005), Rehnquist effectively described himself as "the stern non-humanitarian committed to the true interpretation of the Constitution no matter what the political implications." In Tushnet's critical view, "At each point that civil rights entered Rehnquist's work, he responded with indifference resting on his judgment that advocates of civil rights were exaggerating the importance and underestimating the costs that advancing civil rights would impose on other values he thought important." In prison reform litigation, Rehnquist's concerns about "costs" may have been both practical and quantifiable because, contrary to his preference for elected officials making policy choices, judicially ordered remedies could actually require states to spend substantial amounts of money on new facilities and personnel in addition to reformulating policies and practices (Taggart, 1989).

During the Burger Court era, it is difficult to identify cases other than Estelle v. Gamble (1976), concerning the limited right to medical care, in which Rehnquist joined a Supreme Court opinion endorsing inmates' rights under the Eighth Amendment. Instead, he appeared to see his primary responsibility as guarding against any judicial interventions unless such interventions were both absolutely necessary and exceedingly narrow in scope.

Rehnquist made his position most clear in Bell v. Wolfish (1979) when, after acknowledging the existence of unconstitutional conditions of confinement in some correctional settings, he immediately emphasized what he seemed to regard as his highest priority in such cases: judicial deference. According to Rehnquist: "[M]any of these same courts have, in the name of the Constitution, become increasingly enmeshed in the minutiae of prison operations. Judges, after all, are human. They, no less than others in our society, have a natural tendency to believe that their individual solutions to often intractable problems are better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. ... This does not mean that constitutional rights are not to be scrupulously observed ... [but] the inquiry of federal courts into prison management must be limited to the issue of whether a particular system violates any prohibition of the Constitution. ... The wide range of "judgment calls" that meet constitutional and statutory requirements are confided to officials outside of the judicial branch of government."

Rehnquist's Decisions As Chief Justice

While serving as the chief justice of the United States, Rehnquist was in a special position to influence the development of law. As scholars have long observed, "the chief justice has a special role in maintaining certain rules and routines, in scheduling and coordinating conferences [for the justices to discuss cases], and in assigning and announcing opinions" (O'Brien, 1993). Because Rehnquist was usually among the members of the majority for the court's decisions during his tenure as chief justice, he could influence the tone and direction of the court's authoritative statements of law through his choice of the particular justice to write the opinion on behalf of the court. According to Baum (1992), "the assignment power is an important source of real power ... [because] chief justices favor themselves and their ideological allies in assigning opinions in important cases." Several of the justices appointed to the Supreme Court during Rehnquist's tenure as chief justice shared many of his values. These justices included Scalia, Anthony Kennedy and Thomas. Thus, Baum (1992) predicted early in Rehnquist's tenure as chief justice that these appointments could perhaps allow him "to become the primary architect of a fundamental change in the court's direction."

Rehnquist used his appointment power to steer specific opinions to justices whose philosophies and approaches to crafting opinions ultimately advanced the chief justice's apparent objective of ensuring limited definitions of rights for inmates. In particular, Rehnquist's selection of Scalia as the author of the court's opinions in Wilson v. Seiter (1991) and Lewis v. Casey (1996) served to hinder significantly any possibility that lower court judges would further expand rights related to, respectively, general conditions of confinement and access to the courts.

In Wilson v. Seiter (1991), Scalia's opinion made it significantly more difficult for inmates to prevail in Eighth Amendment conditions of confinement cases by applying the "deliberate indifference" standard from medical care cases to all conditions of confinement claims (Smith, 1997). To establish this new standard, Scalia selectively focused only on precedents concerning specific Eighth Amendment issues in which officials' subjective intent was considered essential (medical care: Estelle v. Gamble, 1976; use of force in quelling a disturbance: Whitley v. Albers, 1986). In Lewis v. Casey (1996), Scalia's opinion used the jurisprudential concept of "standing" in a manner that appeared to make it difficult for inmates to seek remedial judicial orders granting them specific forms of legal assistance to enable them to gain access to the courts as pro se litigants (Filter, 2001). Rehnquist did not write these important opinions, but he influenced their development and their concomitant impact on corrections law through his selection of Scalia as the author for these issues.

As chief justice, Rehnquist could also assign important majority opinions to himself. One such case of particular importance was Sandin v. Conner (1995). Prior to Sandin, the Supreme Court's decisions had effectively invited inmates to identify and use "state-created liberty interests" by asserting the existence of legal rights established through the language of a state's statutes and regulations. Rehnquist's majority opinion in Sandin curtailed inmates' opportunities to use that concept and shielded states from a variety of lawsuits by redefining the concept of state-created liberty interests more narrowly. After Sandin, inmates could seek to enforce such legal rights only when corrections officials' actions "impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life."

Rehnquist's other majority opinions typically rejected claims of right by convicted offenders and conveyed messages to the lower courts about limiting the scope of recognized rights in the corrections context. Of particular importance was O'Lone v. Estate of Shabazz (1987), a case that concerned inmates' claims regarding First Amendment free exercise of religion. In rejecting Muslim inmates' claims concerning their inability to return from work assignments in order to attend a weekly religious service, Rehnquist applied the deferential four-part test from Turner v. Safley (1987). The Supreme Court had announced the Turner test only eight days earlier in a case concerning inmates' asserted rights to marry and to send and receive correspondence. A previous precedent had indicated that regulations affecting inmates' correspondence should be examined under a "strict scrutiny" standard (Procunier v. Martinez, 1974). The Turner decision indicated that such First Amendment issues should be evaluated using a "reasonableness test" that was more deferential to corrections officials. The importance of Rehnquist's majority opinion in O'Lone was not only in its demonstration that the Supreme Court would subordinate inmates' free exercise of religion claims to reasonable regulations advancing institutional safety and security, but also in its indication that the deferential Turner test would have broader applicability across a range of rights beyond those considered in the original Turner case.

The End of an Era

With Rehnquist's death, the Supreme Court lost a key figure who had historical importance for the development of corrections law. Because his career coincided with the period of the Supreme Court's most active involvement in corrections law issues, Rehnquist had the opportunity to influence the definition of inmates' rights and the establishment of legal standards to assess the appropriate authority of corrections officials. Rehnquist supported several decisions that recognized limited rights for convicted offenders. However, his most important work in corrections law came from his role as an advocate of judicial restraint and deference to elected officials and corrections authorities. In his judicial opinions and his assignment of opinions to other justices, Rehnquist helped to place limits on the development of inmates' rights and thereby preserve significant authority for corrections officials. Although Rehnquist sought to limit the scope of inmates' rights and restrain judges from intervening in prison administration, he never advocated an elimination of inmates" rights.

Rehnquist also sought to strike a balance between recognizing clearly established legal rights and deferring to corrections officials' judgments about necessary policies and procedures for institutional safety and security. The balance that Rehnquist struck inevitably weighed heavily in favor of corrections officials and, thereby, endorsed the existence of only limited constitutional rights for convicted offenders.

If one views the development of corrections law in the second half of the 20th century as a rapid rise in the judicial recognition of convicted offenders' rights during the 1960s and 1970s, followed by litigation-influenced reforms of correctional institutions in the 1970s and 1980s, Rehnquist can be seen as a key figure in the Supreme Court's role in limiting the expansion of those trends. By the late 1980s and continuing thereafter through today, the arguments about judicial deference and limited rights that Rehnquist originally put forth in Bell v. Wolfish (1979) reflected the Supreme Court's primary analytical approach to corrections law issues.

REFERENCE

Argersinger v. Hamlin, 407 U.S. 25 (1972).

Baum, L. 1992. The Supreme Court, fourth edition. Washington, D.C.: CQ Press.

Bell v. Wolfish, 441 U.S. 520 (1979).

Bounds v. Smith, 430 U.S. 817 (1977).

Cooper v. Pate, 378 U.S. 546 (1964).

Davis, S. 1991. Justice William H. Rehnquist: Right-wing ideologue or majoritarian democrat? In The Burger Court." Political and judicial profiles, eds. C.M. Lamb and S.C. Halpern, 315-342. Urban& Ill.: University of Illinois Press.

Douglas v. California, 372 U.S. 353 (1963).

Exparte Hull, 312 U.S. 546 (1941).

Estelle v. Gamble, 429 U.S. 97 (1976).

Feeley, M M. and E.L. Rubin. 1998. Judicial policy making and the modern state: How the courts reformed America's prisons. New York: Cambridge University Press.

Filter, J.A. 2001. Prisoners' rights: The Supreme Court and evolving standards of decency. Westport, Conn.: Greenwood Press.

Fulwood v. Clemmer, 206 F. Supp. 370 (D.D.C. 1962).

Gagnon v. Scarpelli, 411 U.S. 778 (1973).

Gideon v. Wainwright, 372 U.S. 335 (1963).

Hutto v. Finney, 437 U.S. 678 (1978).

Jackson v. Bishop, 404 F.2d 371 (8th Cir. 1968).

Johnson v. Avery, 393 U.S. 483 (1969).

Jones v. North Carolina Prisoners' Union, 433 U.S. 119 (1977).

Lewis v. Casey, 518 U.S. 343 (1996).

Meachum v. Fano, 427 U.S. 215 (1976).

Morrissey v. Brewer, 408 U.S. 471 (1972).

O'Brien, D.M. 1993. Storm center: The Supreme Court in American politics, third edition. New York: W.W. Norton.

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

Pell v. Procunier, 417 U.S. 817 (1974).

Procunier v. Martinez, 416 U.S. 396 (1974).

Robbins, I. 1980. The cry of Wolfish in the federal courts: The future of federal judicial intervention in prison administration. Journal of Criminal Law and Criminology 71(2):211-225.

Ross v. Moffitt, 417 U.S. 600 (1974).

Sandin v. Conner, 515 U.S. 472 (1995).

Smith, C.E. 1997. The Rehnquist Court and criminal punishment. New York: Garland Publishing.

Smith, C.E. 2000. Law and contemporary corrections. Belmont, Calif.: Wadsworth Publishing.

Smith, C.E. 2001. The malleability of constitutional doctrine and its ironic impact on prisoners' rights. Boston University Public Interest Law Journal, 11(1):73-96.

Taggart, W. 1989. Redefining the power of the federal judiciary: The impact of court-ordered reform on state expenditures for corrections. Law and Society Review, 23(2):241-271.

Turner v. Safley, 482 U.S. 78 (1987).

Tushnet, M. 2005. A court divided. New York: W.W. Norton.

Whittington, K.E. 2003. William H. Rehnquist: Nixon's strict constructionist, Reagan's chief justice. In Rehnquist justice: Understanding the court dynamic, ed. E.M. Maltz, 8-33. Lawrence, Kan.: University Press of Kansas.

Whitley v. Albers, 475 U.S. 312 (1986).

Wilson v. Seiter, 501 U.S. 294 (1991).

Wolff v. McDonnell, 418 U.S. 539 (1974).

Christopher E. Smith, JD, Ph.D., is a professor of criminal justice at Michigan State University.