A Revolution? Thankfully Not.

Chief Justice William Rehnquist, 80, died Saturday at his home in Arlington, Virginia, following an approximately year-long battle with thyroid cancer. Rehnquist has been credited with leading the Supreme Court through a "conservative revolution." This is overstated. Undoubtedly, a justice may play an instrumental role in shaping Supreme Court jurisprudence. One of the great features of the Supreme Court, however, is that the institution can only set binding precedent through a majority decision. This feature acts as an important check on the power of any single judicial philosophy to take hold. Under Rehnquist's watch, the Court moved decidedly to the right on issues involving federalism, due process, criminal procedure, and public accommodation of religion.

Rehnquist often proved an able leader, managing to create a narrow, working block of conservative-minded justices to turn his lone dissents as an associate justice into binding precedent. But to say that a revolution has occurred, however, oversimplifies what has actually has taken place. For example, Rehnquist's concerted federalist drive to provide states with greater protection from federal interference has been halted, notably in the recent Supreme Court decision holding that federal anti-drug laws trump state laws that legalize the medical use of marijuana. Moreover, he has failed to overturn the federally protected right of abortion when it was at its most perilous state in the 1992 case Planned Parenthood v. Casey, and has failed to impede the furtherance of gay and women's rights. In the past two terms, Rehnquist has increasingly found himself in the dissent.

Why? Remarkably, Rehnquist's conservative views were contained by other Republican-appointed justices, including O'Connor and Kennedy. He is only one vote among nine fiercely independently-minded colleagues.The difficulty in moving the Court so far in either direction is well exemplified by the current situation, where President Bush must fill two vacancies, which represents over 20% of the Court. Rehnquist will most likely be replaced by John Roberts, and O'Connor may be replaced by someone perhaps marginally more conservative than her. Accordingly, given the way our Supreme Court is designed, even after replacing a large percentage of the justices at once, the court will move, at most, marginally to the right. The rumors of a conservative revolution are thus greatly exaggerated.

As to his having dated (schtupped?) O'Connor when they were at Stanford together, we still don't know what to say about that. We will say that when he clerked for Justice Jackson and in the years after, Rehnquist was a well-documented racist (his pet project as a private lawyer was upholding the segregation of Phoenix's public schools and fighting against laws that allowed for integrated public accommodations). Funny how no one brings that up anymore.