The 2006 Stanford Law Review Symposium, "Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor," explores the ways in which two of the Law Review's most distinguished alumni left their mark on the Supreme Court and considers how the Court might continue to evolve in the coming years. By focusing on three general themes - judicial philosophy, federalism, and individual rights - we endeavored to provide a forum for one of the first substantive discussions on the jurisprudence of Chief Justice William H. [...]
Thank you for the invitation to be here to honor Sandra O'Connor and the memory of the late William Rehnquist. We meet at Stanford, the place that did so much to shape their lives and careers. The years at Stanford gave them their skills as scholars and professionals. Those years, too, helped them find their self-definition, their sense of identity. At Stanford, they continued to shape their ethical frameworks and their beliefs that the individual can, and must, contribute to the progress of a free society. [...]
It is not fair to have to follow a speaker as eloquent as Justice Kennedy. And I am not going to try to bend your ears for long. I am very touched by his comments. It was wonderful that you had a chance to hear him talk about our former colleague, William Rehnquist, as well as some remarks about me. [...]
Over the past 230 years, the United States has had forty-three Presidents but just seventeen Chief Justices. For thirty-three years, fourteen years as an Associate Justice and nineteen as Chief Justice, William Hubbs Rehnquist changed the landscape of American law. As Chief, he was the leader of a Court majority that often adopted positions that he had staked out in dissenting opinions as an Associate Justice. [...]
By the summer of 1992, I had interviewed with numerous prospective employers, including partners in law firms, career prosecutors, and federal appellate judges. Each interview generally included a moment when the interviewer would ask something along the lines of "What do you want to do in your legal career?" I occasionally stumbled over my response as I sought to tailor my answer to what I assumed would impress the potential job-giver. [...]
I interviewed for a clerkship with the Chief during the summer after I graduated from law school in 1992, and by that time I was pretty sure I wanted to become a law professor. I was still a bit shy about saying so, not because I thought it a bad job, but because I wasn't sure I was good enough for the job. The Chief asked me during the interview what I wanted to do with my life, and I told him, ready to supplement my response with caveats about not being certain I would get hired or would be any good at it. [...]
Halfway through my clerkship with the Chief Justice, I committed a significant blunder. In an opinion for the Court authored by the Chief and for which I had prepared a draft of the section on procedural history, I had made an error. In describing the lower court's holding (on a matter not at issue when it arrived at the Court), I had described the appellate court as having reversed, when, in fact, it had affirmed the trial court. [...]
Which two Civil War battles were fought west of the Mississippi River? Chief Justice William Rehnquist knew the answer, as he knew a myriad of often obscure (but never unimportant) historical and geographical facts, salting many of them into his Supreme Court opinions and books and using others in informal wagers with friends, family, and law clerks. The answer, found in the Chief's opinion in Leo Sheep Co. v. [...]
Sandra Day O'Connor has often said that, as "a cowgirl from Eastern Arizona," she was as surprised as anyone when President Ronald Reagan nominated her in 1981 as the first woman to serve on the Supreme Court of the United States. Her surprise reflects her unassuming, down-to-earth manner. But O'Connor's experiences as a cowgirl from Arizona and from serving in each branch of its state government - along with her ties to Stanford - were critical factors in her appointment. [...]
"Thank you very much for coming," Justice O'Connor said as I entered her chambers to interview for a clerkship. "I'm so sorry to have asked you to make the trip all the way out here from Stanford."
Apparently Justice O'Connor didn't realize that this was the most exciting moment of my life, one for which I would have gladly traveled anywhere. "But it is very important that I meet potential clerks in person, because each of my clerks becomes part of my family." She then asked me as many questions about my family and hobbies as she did about my legal views...
It is 1985. Ronald Reagan is battling the Evil Empire. Joe Gibbs has just taken the Washington Redskins to two Super Bowls. Michael Jackson, resculpted but not yet freakish, leads a huge chorus in "We Are the World." Sandra Day O'Connor has been the First Woman on the U.S. Supreme Court for four years and, in the Washington social milieu of the time, still probably resides on the A-list ahead of any of the aforementioned men. [...]
Justice O'Connor doesn't like footnotes in her opinions. That was a bracing lesson for a young lawyer fresh from a law review where a legion of footnotes, packed with authorities and afterthoughts, marched halfway up almost every page. Holding my first memo, she started right in on teaching: "If you have something to say, just say it. [...]
William Rehnquist's tenure on the Supreme Court presents a Sphinx-like riddle for students of the separation of powers: "What animal is that which in the morning goes on four, at noon on two, and in the evening on three feet?" One might well answer: "Rehnquist's separation of powers jurisprudence, as it is a difficult creature to characterize, arguably evolving over time." In adolescence, it appeared an originalist on all fours, in manhood it walked erect, a Byron White functionalist, and in old age ... well, perhaps the Sphinx might just devour one after all! [...]
When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, the Supreme Court has limited the scope of Congress's powers and has greatly expanded the protection of state sovereign immunity. In 1995, for the first time in sixty years, the Supreme Court declared a federal law unconstitutional as exceeding the scope of Congress's Commerce Clause power. [...]
In many ways the basic structure of constitutional law circa 2006 - which features a strong national government of unlimited authority and weak protection of economic liberties and property rights - derives from the New Deal synthesis circa 1937. That synthesis insists that an extensive national role in the regulation of economic affairs is an indispensable tool for social progress. For the better part of fifty years that synthesis dominated both judicial and academic writing on American federalism. [...]
William Rehnquist had so long and effectively played the role of fair-minded Chief Justice - his ideological opposite William Brennan calling him "the best chief under whom [he] served" - that sometimes his substantive legacy is overlooked. It should not be. Coming to the Court in 1972 from the Office of Legal Counsel, he began as a lone dissenter, but by the time of his death in 2005, he had brought at least a slim majority of the Court around to his own thinking. [...]
Over the years I have written more in criticism of Chief Justice Rehnquist's Fourteenth Amendment opinions than in praise of them. This Article marks a departure. It offers an appreciation of Rehnquist's last sex discrimination opinion, Nevada Department of Human Resources v. Hibbs. In titling the Article "You've Come a Long Way, Baby," I refer not to the big beat album, nor to the cigarette advertising slogan, but instead to a frequent refrain of the 1970s women's movement. [...]
Much of Justice Sandra Day O'Connor's work on the Supreme Court embodies a commitment to judicial minimalism, understood as a preference for narrow rulings, closely attuned to particular facts. In many contexts, however, that commitment is hard to justify, simply because it imposes severe decisionmaking burdens on others and may well create more, rather than fewer, errors. For this reason, a general preference for minimalism is no more defensible than a general preference for rules. [...]
The government provides vast subsidies to expressive associations. Universities and cities let groups use government property. Universities fund student groups' meetings and publications. The federal and state governments provide tax exemptions, which are tantamount to a matching grant. Many of these programs are available to a broad range of groups that meet certain objective criteria (e.g., student groups, nonprofit groups, and veterans' groups). [...]
The departures of Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor from the Supreme Court constitute an event of singular importance for that institution. Rehnquist and O'Connor were by any reckoning highly consequential Justices. Although differing in important respects, each Justice was a public servant of the highest integrity and dedication; each was a patriot to the core; and each at the end reflected credit on the Court, the profession, and, it should be acknowledged, on Stanford Law School. Some of the criticism in this Article is pointed. [...]
We often experience disappointment upon reaching the conclusion of a treatise on political philosophy. Too frequently the vigorous, forthright style and logic which an author employs during the first chapters in criticizing the "fatal errors" of preceding doctrines on his subject give way in the conclusion of the book to exactly the same type of errors when he attempts to build, however eclectically, a theory of his own. [...]
