Rehnquist's steady conservatism reshaped the law.

William Rehnquist will be remembered as one of the most important Supreme Court justices in American history, partly for his length of service. His 33-year tenure on the Court, including 19 years as chief justice, is one of the longest in Court history. But more important, Rehnquist profoundly affected constitutional law by pushing it in a more conservative direction.

While a few justices changed ideologically while on the Court, Rehnquist remained a staunch conservative from his days at Stanford Law School until his death on September 3. As a law clerk for Justice Robert Jackson, Rehnquist wrote a now-infamous memo urging Jackson to vote to reaffirm Plessy v. Ferguson and uphold government-mandated racial segregation. (1) Rehnquist was active in Republican politics in Arizona before working for the Nixon Justice Department. He was a conservative when he joined the Court in 1972 and remained one throughout his tenure.

Although he was unable to achieve some key goals on the conservative agenda, such as overruling Roe v. Wade (2) or the decisions prohibiting prayer in public schools, he was remarkably successful in helping to move the Court, and constitutional law, to the right. This was especially true in decisions about federalism, separation of church and state, and equal educational opportunity.

Federalism

In the first three decades of the 20th century, the Supreme Court used concern over states' rights and federalism as the basis for limiting the scope of Congress's commerce power. The Court also held that the Tenth Amendment reserves a zone of activities exclusively for state control. For example, in Hammer v. Dagenhart, the Court struck down a federal law prohibiting child labor on the ground that it violated the Tenth Amendment. (3)

But after 1937, the Court rejected this view. It no longer considered the Tenth Amendment a limit on federal power; instead, it was merely a reminder that Congress could not act without express or implied constitutional authority.

In 1976, the Court appeared to revive federalism as a limit on congressional power. In National League of Cities v. Usery, the Court invalidated a federal law that required state and local governments to pay their employees a minimum wage. In an opinion by then-Justice Rehnquist, the Court held that Congress could not regulate states in areas of "traditional" or "integral" state responsibility. (4)

Just nine years later, in Garcia v. San Antonio Metropolitan Transit Authority, the Court expressly overruled National League of Cities. Rehnquist, in a short dissent, predicted that his view would again triumph. (5)

He was right. The Rehnquist Court revived the Tenth Amendment as a constraint on Congress's authority in New York v. United States. (6) For only the second time in 55 years and the first since National League of Cities, the Court invalidated a federal law, saying it violated the Tenth Amendment.

The federal law at issue in the case, the 1985 Low-Level Radioactive Waste Policy Amendments Act, required states to provide for the safe disposal of radioactive wastes generated within their borders. In an opinion by Justice Sandra Day O'Connor, the Court held that forcing states to accept ownership of radioactive wastes would impermissibly "commandeer" state governments. The Court concluded that it was "clear" that because of the Tenth Amendment, "the federal government may not compel the states to enact or administer a federal regulatory program." (7)

A few years later, in Printz v. United States, the Court applied and extended New York. The Printz case involved a challenge to the federal Brady Handgun Violence Prevention Act, which required that the "chief law enforcement officer" of each local jurisdiction conduct background checks before issuing permits for firearms. The Court, in a 5-4 decision, found that the law violated the Tenth Amendment. (8)

The Rehnquist Court also revived federalism in another way: by restricting the scope of Congress's commerce power. In United States v. Lopez, the Court, in an opinion written by Rehnquist, declared the federal Gun Free School Zone Act unconstitutional. (9) The law made it a crime to have a firearm within 1,000 feet of a school.

The Court followed Lopez in United States v. Morrison, ruling that the civil damages provision of the Violence Against Women Act (VAWA) was unconstitutional. In enacting VAWA, Congress held lengthy hearings and found that violence against women cost the U.S. economy billions of dollars a year. More important, it found that state courts dealt insufficiently with the problem. The Court nonetheless invalidated the law in an opinion by Rehnquist. (10)

Rehnquist also advanced states' rights by expanding the scope of state sovereign immunity. In 1996, he wrote the majority opinion in Seminole Tribe v. Florida, holding that Congress may authorize suits against states only pursuant to laws enacted under [section] 5 of the Fourteenth Amendment, which empowers Congress to adopt statutes to enforce that amendment. (11)

Rehnquist wrote a series of similar opinions: Florida Prepaid v. College Savings Bank, (12) ruling that state governments cannot be sued for patent infringement; Kimel v. Florida Board of Regents, (13) deciding that state governments may not be sued for violating the Age Discrimination in Employment Act; and University of Alabama v. Garrett, (14) ruling that state governments may not be sued for employment discrimination in violation of Title I of the Americans with Disabilities Act. In each case, a five-justice majority concluded that Congress was expanding the scope of rights and that the laws could not be justified as narrowly tailored to prevent or remedy constitutional violations.

Interestingly, the Rehnquist Court's most recent federalism decisions ruled in favor of federal power. In Nevada Department of Human Resources v. Hibbs, the Court allowed suits against states for violations of the family leave provisions of the Family and Medical Leave Act. (15) In Tennessee v. Lane, the Court held that states may be sued under Title II of the Americans with Disabilities Act for denying disabled citizens equal access to the courts. (16) In Gonzales v. Raich, it upheld the constitutionality of a federal law prohibiting cultivation and possession of small amounts of marijuana for medicinal purposes. (17) Rehnquist wrote the opinion in Hibbs but dissented in Lane and Raich.

Overall, the Rehnquist Court's federalism decisions are a dramatic departure from pre-Rehnquist rulings. In every case limiting federal power, the chief justice was in the majority, and in many, he wrote the Court's decision.

Church and state

Rehnquist was tremendously successful in allowing more government aid to religion and a greater religious presence in government.

In 1997, in Agostini v. Felton, the Court reversed a decade-old precedent and held that public school special-education teachers may provide services in parochial schools. (18)

Three years later, in Mitchell v. Helms, the Court reversed precedents and allowed the government to give instructional equipment to parochial schools. (19) Four justices urged a radical change in the law. In an opinion joined by Rehnquist and Justices Antonin Scalia and Anthony Kennedy, Justice Clarence Thomas argued that aid to religion violates the Establishment Clause only if the government favors some religions over others. This approach would allow an unprecedented amount of aid to religious schools.

Next, in Zelman v. Simmons-Harris, the Court upheld a voucher program for Cleveland schools even though 96 percent of the vouchers went to parochial schools. Rehnquist's opinion concluded that the program did not violate the Establishment Clause because all religious schools could receive money from the vouchers and because the government was acting with the permissible purpose of improving education for children. (20)

In Van Orden v. Perry, the case in which Rehnquist wrote his last opinion, the Court upheld the constitutionality of a six-foot-high, three-foot-wide cross that sits between the Texas state capitol and the state supreme court building. According to the ruling, government has a broad power to put religious symbols on government property without violating the First Amendment. (21)

All these decisions mark the Court's shift to the right in church-and-state issues. And in every one of them, Rehnquist was in the majority.

Schools

From the time he clerked for Jackson, Rehnquist was a foe of school desegregation. In his early years on the Court, he cast decisive votes in 5-4 decisions limiting judicial efforts to equalize educational opportunity.

One such case was San Antonio Independent School District v. Rodriguez, where the Court in 1973 held that disparity in school funding does not violate equal protection. (22) Rodriguez involved a challenge to the Texas system of funding public schools largely through local property taxes. This system meant that poor areas had to tax citizens at a high rate but had little to spend on schools, while wealthier areas could tax at low rates and still have more money for education. One poorer district spent $356 per pupil, while a wealthier district spent $594 per student.

The Supreme Court upheld the Texas system and rejected the claim that education is a fundamental right: "Education, of course, is not among the rights afforded explicit protection under our federal Constitution. Nor do we find any basis for saying it is implicitly so protected." (23)

A year later, in Milliken v. Bradley, the Court imposed a substantial limit on lower courts' remedial powers in desegregation cases. A federal district court had imposed a multidistrict, inter-city remedy for de jure segregation in one suburban district. The Supreme Court ruled this impermissible and held that a federal court could include schools from other districts in desegregation efforts only if it could be proven that these districts violated the Constitution. (24)

Milliken had a devastating effect on many jurisdictions' ability to integrate schools. Desegregation obviously requires transferring students between city schools with substantially African-American populations and mostly white suburban schools. There simply are not enough white students in the city, or enough black students in the suburbs, to achieve desegregation without an interdistrict remedy. Milliken and Rodriguez together have meant separate and unequal schools.

Moreover, in more recent cases, the Court has ordered an end to successful desegregation. In Board of Education of Oklahoma City v. Dowell, the issue was whether a desegregation order should continue when its end would mean a resegregation of the public schools. (25) Oklahoma schools had been segregated under a state law mandating separation of the races. It was not until 1971--17 years after Brown v. Board of Education (26)--that desegregation was ordered. A federal court order was successful in desegregating the Oklahoma City public schools.

Evidence at trial proved that ending the desegregation order would result in dramatic resegregation. Nonetheless, the Supreme Court held that once a "unitary" school system had been achieved, a federal court's desegregation order should end, even if it will mean resegregation of the schools.

Missouri v. Jenkins ordered an end to school desegregation for Kansas City schools. Missouri law once required the racial segregation of all public schools; it was not until 1977 that a federal district court ordered desegregation. That order had made a dramatic difference, yet the Court, in an opinion by Rehnquist, put an end to it. (27)

In 2005, urban schools are more separate and more unequal than they have been for decades. Rehnquist was in the majority, and wrote many of the opinions, in cases responsible for making this happen.

These are just three areas among many where Rehnquist played a pivotal role in moving the law in a conservative direction. In 33 years as a justice, William Rehnquist had a profound impact on constitutional law.

Notes

(1.) See RICHARD KLUGER, SIMPLE JUSTICE 605-09 (1975).

(2.) 410 U.S. 113 (1973).

(3.) 247 U.S. 251 (1918).

(4.) 426 U.S. 833 (1976).

(5.) 469 U.S. 528 (1985).

(6.) 505 U.S. 144 (1992).

(7.) Id. at 188.

(8.) 521 U.S. 898 (1997).

(9.) 514 U.S. 549 (1995).

(10.) 529 U.S. 598 (2000).

(11.) 527 U.S. 44 (1996).

(12.) 527 U.S. 627 (1999).

(13.) 528 U.S. 62 (2000).

(14.) 531 U.S. 356 (2001).

(15.) 536 U.S. 721 (2003).

(16.) 541 U.S. 509 (2004).

(17.) 125 S. Ct. 2195 (2005).

(18.) 521 U.S. 203 (1997).

(19.) 530 U.S. 793 (2000).

(20.) 536 U.S. 639 (2002).

(21.) 125 S. Ct. 2584 (2005).

(22.) 411 U.S. 1 (1973).

(23.) Id. at 35.

(24.) 418 U.S. 717 (1974).

(25.) 498 U.S. 237 (1991).

(26.) 347 U.S. 483 (1954).

(27.) 515 U.S. 1139 (1995).

Editors' note: This article reviews the late chief justice's impact on constitutional law in civil matters. Next month's column will focus on criminal procedure.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law at Duke University School of Law.