Path to the Supreme Court
One piece of paper followed William Rehnquist through both of his confirmations, fifteen years apart. In 1952, as a twenty-eight-year-old law clerk to Justice Robert H. Jackson (§82), he wrote a memorandum for the pending school segregation cases titled 'A Random Thought on the Segregation Cases,' and signed it WHR. 'I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues,' it read, 'but I think Plessy v. Ferguson was right and should be reaffirmed.' When the memo surfaced during his 1971 confirmation, Rehnquist swore that it had been 'prepared by me at Justice Jackson's request,' as 'a rough draft of a statement of his views,' and that its position 'did not then and does not now reflect my view.' Jackson's longtime secretary, Elsie Douglas, called that account 'a smear of a great man,' insisting that 'Justice Jackson did not ask law clerks to express his views. He expressed his own and they expressed theirs.' The dispute was never settled; it was renewed in 1986 and has been argued by historians ever since. The Senate weighed the same page twice, and both times found it lighter than the man: 68 to 26 in 1971, 65 to 33 in 1986.
Rehnquist was born in Milwaukee on October 1, 1924, and raised in suburban Shorewood, the son of a wholesale paper salesman, in a household devoted to Republican politics. He served in the Army Air Forces from 1943 to 1946 as a weather observer, reaching North Africa near the war's end, and came home a sergeant and collected degrees at speed: a bachelor's and a master's at Stanford in 1948, Phi Beta Kappa, a second master's at Harvard, and Stanford Law School, class of 1952. The standard telling, printed in Stanford's own alumni magazine within weeks of his 1971 nomination, is that he graduated first in the class that included Sandra Day O'Connor (§102), with a professor calling him 'the outstanding student of his law school generation'; the school's later historians add that no official ranking has ever been found, so the claim rests on the telling. What is documented is the Order of the Coif for them both, and a proposal of marriage he made to his classmate, which she declined, a detail the world learned only in 2019, from her biographer's work in her papers.
The Jackson clerkship brought him to Washington and the segregation memo; Phoenix brought him everything else. He married Natalie Cornell in August 1953, opened a law practice, and rose through Arizona's Goldwater-era Republican circles as a lawyer of acknowledged brilliance and very settled views. In 1964 he wrote to the Arizona Republic opposing Phoenix's new public-accommodations ordinance: 'The ordinance summarily does away with the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers.' At his hearings he would say he had come to think the ordinance had worked well and that he had underestimated what recognition meant to those it protected. Harder allegations followed him from those years: witnesses told the Senate, in 1971 and again in 1986, that as a Republican poll watcher he had challenged minority voters in south Phoenix precincts. Rehnquist denied it under oath, allowing only that it was 'conceivable' he had once challenged a voter while denying any harassment. Here too the chapter records the contest; the record does not close it.
In 1969 he joined the Nixon Justice Department as Assistant Attorney General for the Office of Legal Counsel, the executive branch's own legal adviser, and when Hugo Black (§76) and the second Justice Harlan (§89) left the Court within days of each other in September 1971, Nixon's search for their successors ended at his own Justice Department. Rehnquist was nominated that October alongside Lewis F. Powell Jr. (§99), confirmed 68 to 26 on December 10, 1971, and sworn in with Powell on January 7, 1972. He was forty-seven, the youngest member of the Court he joined.
On the Supreme Court
The early years made the reputation the numbers still show. On a Court that was consolidating the Warren era's work, Rehnquist dissented alone so often that his clerks presented him with a Lone Ranger doll, and the nickname stuck. He dissented from Roe v. Wade in 1973, writing that 'the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.' In National League of Cities v. Usery (1976) he assembled five votes for the proposition that the states retain 'attributes of sovereignty' that Congress may not impair, a Tenth Amendment landmark; when Garcia overruled it in 1985 he declined to argue at length, resting instead on a principle 'that will, I am confident, in time again command the support of a majority of this Court.' Few judicial predictions have been redeemed so exactly, and by the predictor himself. That same year, dissenting in Wallace v. Jaffree, he attacked Jefferson's wall between church and state as 'a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.'
Warren Burger (§97) retired in June 1986, and Ronald Reagan announced in the same breath his intention to nominate Rehnquist as Chief Justice and Antonin Scalia (§103) for the seat he would vacate. The confirmation was the associate years relitigated: the Jackson memo again, the Phoenix polling places again, and a newly discovered restrictive covenant in the deed to a Vermont vacation property. Edward Kennedy pronounced him 'too extreme on race, too extreme on women's rights, too extreme on freedom of speech, too extreme on separation of church and state, too extreme to be chief justice.' The Senate confirmed him anyway, 65 to 33, on September 17, 1986, and he was sworn in on September 26 as the sixteenth Chief Justice of the United States.
The surprise of the Chief years was how little of the Lone Ranger survived the promotion. Colleagues across the spectrum praised the way he ran the place: conferences ran to time, opinions came out on schedule, and the disapproving look he aimed at a colleague who ran long acquired its own name. 'Chief Justice William H. Rehnquist was the fairest, most efficient boss I have ever had,' Ruth Bader Ginsburg (§107) said at his death; John Paul Stevens (§101), his ideological opposite and senior colleague, called him 'truly the first among equals in discharging his judicial duties in a prompt, scholarly and fair manner.' The man himself stayed plain: betting pools on elections and playoff games, poker, charades, Gilbert and Sullivan. In 1995, taken with the Lord Chancellor's costume in a production of Iolanthe, he added gold stripes to the sleeves of his robe, and wore them while presiding, mostly in silence, over the 1999 impeachment trial of President Clinton. Of that episode he liked to say, borrowing from the same operetta, that he did nothing in particular and did it very well.
The doctrine, meanwhile, arrived on schedule. In United States v. Lopez (1995) he wrote the first decision since the New Deal to strike a federal statute as beyond the commerce power: 'We start with first principles. The Constitution creates a Federal Government of enumerated powers.' United States v. Morrison (2000) followed ('Gender-motivated crimes of violence are not, in any sense of the phrase, economic activity'), and Seminole Tribe (1996) restored the states' immunity from suit. The Garcia prophecy had come true, majority and all. Yet the Chief could still startle. In Hustler Magazine v. Falwell (1988) he wrote for a unanimous Court protecting the most scurrilous parody in the case reports, warning that 'outrageousness' as a legal standard 'would allow a jury to impose liability on the basis of the jurors' tastes or views'; a year later he dissented from the flag-burning decision, insisting the flag 'is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas.' In Dickerson (2000) he saved the Miranda warnings he had spent a career doubting, because they had 'become part of our national culture.' And in Hibbs (2003) the architect of state immunity upheld the Family and Medical Leave Act against the states, writing about the persistence of 'stereotype-based beliefs about the allocation of family duties.' He dissented in part from Casey (1992), where Roe now stood, in his words, 'as a sort of judicial Potemkin Village, which may be pointed out to passers by as a monument to the importance of adhering to precedent,' and he concurred in Bush v. Gore (2000), insisting that in a presidential election the state legislature's text 'takes on independent significance.'
The Supreme Court Database gives the whole career one shape. Across 4,300 coded votes his liberal share was 30.0 percent against a docket baseline of 50.4, the lowest share of the thirty-three justices of the modern era, and his 20.4-point conservative gap is exceeded only by the second Justice Harlan's. His closest ally in divided cases was Warren Burger, at 80.3 percent across 1,498 of them; his furthest colleague was William O. Douglas (§79), at 12.7. And the drift series answers the question his obituaries argued about. His gap narrowed from 24.6 points in the early terms to 15.9 in the last ones, which looks like mellowing; the decomposition says otherwise. His own movement, 2.4 points, fails statistical significance, while the shift of the bench around him, 6.4 points toward him, is real. On the sixth pass through this program's oldest question, the answer inverts the Stevens chapter (§101): Stevens moved on a Court that held still, and Rehnquist held still while the Court moved to where he had been standing alone. The Lone Ranger did not ride toward the posse. The posse arrived.
The last years were endured in public. His dependence on a prescribed sedative for chronic back pain, and the hospitalization that ended it over the winter of 1981–82, had been reported at the time and was documented in detail when his FBI file opened decades later. Nan Rehnquist died of cancer in 1991. In October 2004 the Court announced that the Chief Justice had thyroid cancer, and the country watched him fight it: the tracheotomy, the January 2005 inauguration where he administered the oath to President Bush in a scarf and a raspy voice, the July statement issued to still the rumors: 'I want to put to rest the speculation and unfounded rumors of my imminent retirement. I am not about to announce my retirement. I will continue to perform my duties as chief justice as long as my health permits.' His final year-end report answered the impeachment talk then aimed at federal judges: extending impeachment to decisions from the bench, he wrote, 'would destroy judicial independence.' He worked until days before the end. He died at home in Arlington on September 3, 2005, at eighty, 'surrounded by his three children,' the first member of the Court to die in office since Robert Jackson, the justice for whom he had clerked. He lay in repose in the Great Hall, and among those who mourned him was the former clerk the President now named to his chair: John Roberts (§109), confirmed that month as the seventeenth Chief Justice. He is buried at Arlington National Cemetery.
He wrote four books of Court history in the margins of the job, and left the argument about the memo, the polling places, and the man exactly where he found it: unresolved, and overtaken. The associate who dissented alone became the Chief whose majority assembled around him, on a Court that moved to him rather than he to it. Whatever else the two seats of William Rehnquist prove, they prove that patience is a judicial philosophy.
The Voting Record
How Rehnquist voted in the 4,437 cases the Supreme Court Database records from the 1971 term through the 2004 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Rehnquist voted with Burger more than with anyone else — the same side of the judgment in 80.3% of their 1,498 divided cases — and with Douglas least, at 12.7%. See the matrices →Compared against the 16 colleagues Rehnquist shared at least 300 divided cases with.
And Rehnquist ended 8.8 points more liberal relative to those colleagues than at the start — the eleventh-largest shift of the 27 justices with a long enough record to measure. See who changed →
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
United States v. Lopez
1995 · 5–4Holding · Congress exceeded its commerce power in banning guns near schools; the Commerce Clause has judicially enforceable limits.
Role · Rehnquist wrote for the Court.
The first decision since 1937 to strike a federal statute as beyond the commerce power — the keystone of the modern federalism revival.
Read the opinion →Dickerson v. United States
2000 · 7–2Holding · Miranda v. Arizona is a constitutional rule that Congress cannot legislatively overrule.
Role · Rehnquist, a longtime Miranda skeptic, wrote for the Court.
A striking instance of institutional stewardship overriding a Chief Justice's own doctrinal instincts.
Read the opinion →Washington v. Glucksberg
1997 · 9–0Holding · There is no constitutional right to physician-assisted suicide; substantive due process protects only rights deeply rooted in the nation's history and tradition.
Role · Rehnquist wrote for the Court.
A landmark limiting the expansion of unenumerated rights, central to modern due-process debates including Dobbs (§110).
Read the opinion →Go Deeper
William Rehnquist spent thirty-three years on the Supreme Court — the last nineteen as Chief Justice — and did more than anyone to turn the conservative legal movement from dissent into doctrine. He arrived in 1972 as a Nixon appointee so far to the right that he dissented alone often enough to be nicknamed the 'Lone Ranger'; he left in 2005, having built majorities that revived federalism, narrowed the reach of Congress, and reshaped criminal procedure and church-state law. In United States v. Lopez he wrote the first decision since the New Deal to strike down a federal statute as exceeding the commerce power; he presided over the impeachment trial of President Clinton and over Bush v. Gore; and, to the surprise of many, he wrote Dickerson v. United States upholding Miranda. The fullest biography, John Jenkins's The Partisan, is pointedly critical and no admirer's portrait — there is still no definitive sympathetic life — so read it alongside the opinions and the scholarship. Begin with Jenkins for the life, then read Lopez to see the federalism revolution he led.
The Bookshelf
The fullest single-volume life, and the natural starting point — but a critical one, and readers should know it. Jenkins, a longtime legal journalist who interviewed Rehnquist, portrays a brilliant, affable, and deeply ideological man who bent the Court to a conservative program with unusual skill. Admirers have faulted the book as one-sided, and no comparably thorough sympathetic biography yet exists, so it is best read as a provocative, well-reported account to be weighed against the opinions and the scholarly literature rather than as the last word. PublicAffairs.
The first serious study of Rehnquist's constitutional philosophy — Sue Davis on the consistent conservatism behind the early solo dissents, written when he was still the Court's right flank rather than its Chief. Princeton University Press.
The standard study of the Court Rehnquist led — Tinsley Yarbrough on the federalism revival, the retreat on rights, and the consolidation of a conservative majority across two decades. Oxford University Press.
A scholarly assessment of the whole tenure, gathered just after his death — essays on federalism, criminal procedure, religion, and judicial administration that take the measure of a Chief who moved the law steadily rightward and ran the building with quiet efficiency. Cambridge University Press.
An affectionate memoir by a friend of Rehnquist's later years — the private man of poker, painting, bad ties, and dry wit behind the austere public Chief. Threshold Editions.
Rehnquist's own accessible history of the institution he led — part narrative, part memoir, revised and expanded from his 1987 original. He recounts the Court's great episodes (the Chase impeachment, the court-packing fight, the Steel Seizure case) with the relish of a man who loved its lore, and offers a revealing window into how he understood the Court's role and his own place in its story. Genial and readable, it is the best entry to Rehnquist in his own voice, and a useful complement to the more critical outside accounts. Alfred A. Knopf / Vintage.
Rehnquist the historian — his readable account of the two great early American impeachment trials, of Justice Samuel Chase (§9) and President Andrew Johnson, and what they settled about the reach of the impeachment power. Written, as it happened, a generation before he would preside over a third. William Morrow.
Rehnquist on civil liberties under the pressure of war — from Lincoln's suspension of habeas corpus to the Japanese-American internment — arguing that the Constitution's protections have always bent, and perhaps should, in wartime. A revealing statement of the Chief's own convictions. Alfred A. Knopf.
His last book — a study of the Hayes–Tilden deadlock of 1876 and the electoral commission that broke it, written by the Chief Justice who had just presided over Bush v. Gore. History with an unmistakable contemporary echo. Alfred A. Knopf.
The keystone of the Rehnquist Court's federalism revival. Striking down the Gun-Free School Zones Act, Rehnquist held for a five-to-four Court that Congress's commerce power, though vast, has outer limits — the first such holding since 1937 — because carrying a gun near a school is not economic activity that Congress may regulate. Lopez launched a line of cases (Morrison, the Boerne line, the state-sovereignty decisions) that reasserted the states against national power and revived a debate many had thought closed by the New Deal. Read it as the clearest statement of the constitutional vision Rehnquist spent a career building toward.
The opinion that confounded Rehnquist's critics and admirers alike. A longtime skeptic of Miranda v. Arizona, he might have been expected to seize the chance to overturn it when Congress tried to legislate it away; instead, writing for a seven-to-two Court, he held that Miranda was a constitutional rule Congress could not override, and that its warnings had 'become embedded in routine police practice to the point where [they] have become part of our national culture.' Read it as a study in how institutional stewardship and respect for settled expectations can override a Chief Justice's own doctrinal instincts.
Nixon's own White House counsel, working from the Nixon tapes, reconstructs the accidental, cynical, and finally fateful process that put Rehnquist on the Court in 1971 — 'Renchburg,' as Nixon kept calling him. The appointment-politics account no biography on this shelf covers this deeply. Free Press.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.Jenkins, The Partisan — for the fullest life — read critically, as no sympathetic equal exists
- 2.United States v. Lopez — for the federalism revolution he led, in his own hand
- 3.Dickerson v. United States — for the surprise that shows the steward over the ideologue
- 4.Rehnquist, The Supreme Court — for the institution and himself in his own voice
- 5.Yarbrough, The Rehnquist Court — for the Court he remade over two decades
Where the Papers Are Kept
Rehnquist's papers were donated to the Hoover Institution Library and Archives at Stanford, his home state's great research collection, where portions covering his pre-Court career and early years have been opened to researchers in stages under access restrictions. As more of the collection becomes available it will be the essential archive for his three decades on the Court and the conservative legal movement he helped lead. His judicial files are supplemented by materials in other justices' papers at the Library of Congress. Visit →
Ideas for Further Research
- From Lone Ranger to Chief. Rehnquist began as a near-solitary dissenter and ended as the architect of a durable conservative majority. Trace how a justice moves from the margin to the center of the Court's power — through longevity, collegiality, opinion assignment, and the shifting membership around him — and ask what the arc reveals about how legal movements capture institutions over time.
- The federalism revival — and its limits. Lopez and Morrison announced that the commerce power had judicially enforceable limits for the first time since 1937, yet the revolution proved partial: in Gonzales v. Raich (2005) the Court upheld federal drug law against a federalism challenge, and the Affordable Care Act cases later tested the doctrine again. Map how far the Rehnquist Court actually shifted the balance between nation and states, and how much survived him.
- The Jackson memo and the question of candor. As a young clerk to Justice Robert Jackson, Rehnquist wrote a memorandum defending Plessy v. Ferguson's 'separate but equal' during the Court's deliberations over Brown; at his confirmations he said it reflected Jackson's views, not his own — an account many historians dispute. Study the controversy as a case in the ethics of clerkship, the reliability of confirmation testimony, and how a justice's early record shadows a long career. Seat lineage: John Marshall Harlan II §89 → William Rehnquist → Antonin Scalia §103 (his associate seat; he was elevated to Chief Justice in 1986, succeeding Warren Burger §97).