Notre Dame law professor Rick Garnett offers some thoughts on Chief Justice William Rehnquist's legacy. An excerpt:
Rehnquist has significantly reshaped and reformed our constitutional law. Take, for example, the area of religious freedom. Throughout the 1970s, the court's interpretation of the Establishment Clause, which was designed to protect religious liberty by limiting government power, tended instead to be almost faith-phobic. In cases involving state aid to children in religious schools, several of the justices were often distracted by a suspicion of parochial education and by what Rehnquist correctly called "Jefferson's misleading metaphor" of a "wall of separation" between church and state. Yet over the years Rehnquist has guided the court toward a more balanced position that calls for government neutrality, not hostility, toward religious choices, institutions, and activities. These efforts paid off in Zelman v. Simmons-Harris, the 2002 decision in which a majority led by Rehnquist upheld Cleveland's school voucher program, which includes religious schools. As Rehnquist recognized, Cleveland's experiment is an evenhanded effort to expand opportunities for low-income kids, not a first step toward theocracy.
To understand Rehnquist's impact more generally requires recognizing that even the so-called swing justices invoke principles and think in terms that Rehnquist revived. He has dramatically "shifted the center of the discussion," as Duke law professor Jefferson Powell put it. According to Powell, Rehnquist "took the long view, and he has won." Time and again?for example, in cases involving the Fourth Amendment's ban on unreasonable searches and seizures, or the appropriate balance between local control and federal power?seeds that Rehnquist planted decades ago in solitary and provocative dissents have taken root and flowered. As Walter Dellinger observed, Rehnquist's achievement is to have pushed into the mainstream once idiosyncratic views of state sovereignty and limited federal power. (Link)
As the say, go read the whole thing.
