Selected Opinions of Chief Justice Rehnquist

CRS Report for Congress
Selected Opinions of
Chief Justice Rehnquist
September 7, 2005
Kenneth R. Thomas and Todd B. Tatelman
Legislative Attorneys
American Law Division

Congressional Research Service ˜ The Library of Congress

Selected Opinions of Chief Justice Rehnquist
William H. Justice Rehnquist, appointed to the Supreme Court by President
Richard M. Nixon, joined the United States Supreme Court as an associate Justice
in 1972. In 1986, President Ronald Reagan nominated him to replace Chief Justice
Warren Burger, a position to which he was confirmed by the Senate by a vote of 65
to 33. When Chief Justice Rehnquist died on September 3, 2005, he had served 33
years on the Court.
William H. Rehnquist had a significant influence over a number of issues during
his years on the Supreme Court. While he is most often associated with the Court’s
renewed interest in federalism, he also made significant contributions in a number
of other areas, including separation of powers, church-state, criminal law, equal
protection and due process. While he was often a lone dissenter early in his career,
his influence grew as the composition of the Court changed, and as he persuaded
other Justices of the merits of his position, many of his views gained ascendancy.

Federalism ...................................................1
Separation of Powers...........................................5
The Right To Privacy...........................................7
Church-State .................................................8
Criminal Law................................................11
Property Rights and Fifth Amendment "Takings"....................13
Affirmative Action............................................14
Fourteenth Amendment........................................15

Selected Opinions of Chief Justice
William H. Justice Rehnquist, appointed to the Supreme Court by President
Richard M. Nixon, joined the United States Supreme Court as an associate Justice
in 1972. In 1986, President Ronald Reagan nominated him to replace Chief Justice
Warren Burger, a position to which he was confirmed by the Senate by a vote of 65
to 33. When Chief Justice Rehnquist died on September 3, 2005, he had served 33
years on the Court.
William H. Rehnquist had a significant influence over a number of issues during
his years on the Supreme Court. While he is most often associated with the Court’s
renewed interest in federalism, he also made significant contributions in a number
of other areas, including of separation of powers, church-state, criminal law, equal
protection and due process. While he was often a lone dissenter early in his career,
his influence grew as the composition of the Court changed, and as he persuaded
other Justices of the merits of his position, many of his views gained ascendancy.
What follows is a discussion of selected opinions authored by Chief Justice
Rehnquist. Given the Chief Justice’s long tenure on the Court, our selection of
opinions covers only a portion of those he authored, including significant dissents.
During Chief Justice Rehnquist's early years on the Court in the 1970s, there
were growing conflicts between state governments and the federal government. The
federal government was expanding in size, while imposing new mandates on states.
Because of these new responsibilities, state governments developed increased
administrative capacities, and were soon arguing for greater control over many of
state/federal programs. However, this was also a time of increasing federal controls
over states.
For instance, the Economic Stabilization Act of 1970 was used by President
Nixon to reduce a raise that had been promised to Ohio state employees. This action
was challenged in the case of Fry v. United States.1 In Fry, the Supreme Court
considered the argument that the states should be immune from federal regulation.
In a brief opinion, the majority reasserted, based on prior case law, that states are not
immune from federal regulation under the Commerce Clause merely because of their
sovereign status.

1 421 U.S. 542 (1975).

Justice Rehnquist, who was then new to the bench, wrote a dissent in this case.2
He argued that, while the Commerce Clause might apply to the states, the states
should also have a positive constitutional defense against such regulation. Under
Justice Rehnquist's reasoning, if the federal government was allowed to impose any
type of regulation on a state, this would eliminate the sovereignty of the state.
Although he did not fully articulate the limits which were suggested by state
sovereignty, he did argue that there had to be a logical limit to how far the federal
government could go. No other Justice, however, joined his dissent.
However, this soon changed. In 1976, the Court decided the case of National
League of Cities v Usery,3 which dealt with the Fair Labor Standards Act and the
question of whether the federal government could impose minimum wage and
overtime requirements for state employees. Justice Rehnquist managed to attract
four more votes to his position by distinguishing the temporary freeze on state
employee wages in Fry from the long-term reordering of the economic priorities of
the states in National League of Cities. Justice Rehnquist's opinion carefully
considered the economic impact of the minimum wage and overtime requirements,
and made the case that the intrusion on the state was far greater than was the case in
The coalition assembled by Chief Justice Rehnquist crumbled, however, when
Justice Blackmun (who in a concurrence in National League of Cities had advocated
a balancing approach to federal-state relations),4 reversed his position. In 1985,
Justice Blackmun authored an opinion in Garcia v. San Antonio Metropolitan Transit
Authority5 which overruled National League of Cities. Garcia concluded that the
National League of Cities test for "integral operations" in areas of traditional
governmental functions had proven impractical, and that federalism disputes were
to be considered political questions.
Consequently, for the next 10 years, Justice Rehnquist had to make his
federalism arguments from dissent. For instance, in Nevada v. Hall,6 the Court
considered whether one state could be sued in the courts of another state. While the
Court allowed such suits, Justice Rehnquist suggested that previous case law
supported the concept that "unconsenting states are not subject to the jurisdiction of
the courts of other States."7 This was the beginning of a line of reasoning that led to
the rebirth of 11th Amendment state sovereign immunity. In Hall, Justice Rehnquist
based his dissent on "the implicit ordering of relationships within the federal system
necessary to make the Constitution a workable governing charter."8

2 421 U.S. at 551-559
3 426 U.S. 833 (1976).
4 426 U.S. at 856.
5 469 U.S. 528 (1985).
6 440 U.S. 410 (1979).
7 440 U.S. at 437.
8 440 U.S. at 433.

By 1995, however, the Court’s configuration that was to last until 2005 was in
place. In that year, Chief Justice Rehnquist authored the Court’s opinion in United
States v. Lopez,9 which brought into question the extent to which Congress can rely
on the Commerce Clause as a basis for federal legislation. Under the Gun-Free
School Zones Act of 1990, Congress made it a federal offense for "any individual
knowingly to possess a firearm at a place that the individual knows, or has reasonable
cause to believe, is a school zone."10 In Lopez, the Court held that, because the act
neither regulated a commercial activity nor contained a requirement that the
possession was connected to interstate commerce, the act exceeded the authority of
Congress under the Commerce Clause. The Lopez case was significant in that it was
the first time since 1937 (with the possible exception of Usery) that the Supreme
Court struck down a federal statute purely based on a finding that the Congress had
exceeded its powers under the Commerce Clause.
The five justices who decided Lopez (Chief Justice Rehnquist, Justices Scalia,
Thomas, Kennedy and O'Connor) became instrumental in a number of other
federalism cases.11 For instance, these four associate Justices joined an opinion
authored by Chief Justice Rehnquist in United States v. Morrison12 which invalidated
a portion of the Violence Against Women Act allowing a party to obtain damages
from a person who commits a gender-motivated crime.13 Applying its holding in
Lopez, the Court concluded that the activity regulated by the act could not be
classified as “economic activity,” and consequently was not amenable to federal
regulation under the Commerce Clause.
Of particular note was that in Morrison, unlike in Lopez, there were numerous
congressional findings as to the effect of gender-motivated crime on commerce.
Again writing for the Court, Chief Justice Rehnquist stressed that although findings
by the legislative branch can serve to illuminate the relationship between the
regulation and interstate commerce, constitutionality is for the Court to decide. In this
case, the Court determined that the legislative findings detailing the effects on
interstate commerce by gender motivated violence were based in large part on the
“costs of crime,” which was nearly identical to reasoning expressly rejected by the

9 514 U.S. 549 (1995).
10 18 U.S.C. §922(q)(1)A).
11 This was the voting configuration for the majority opinions in Seminole Tribe of Florida
v. Florida, 517 U.S. 44 (1996) (Article I powers such as the power to regulate commerce
are insufficient to abrogate Eleventh Amendment immunity); University of Alabama v.
Garrett, 531 U.S. 356 (2000) (no authority to enforce Title I of the Americans with
Disabilities Act against states as no pattern of unconstitutional state discrimination was
established); Alden v. Maine, 527 U.S. 706, 2248 (1999) (sovereign immunity can prevent
Congress from authorizing a state to be sued in its own courts without state’s permission);
Federal Maritime Comm'n v. South Carolina State Ports Authority, 535 U.S. 743 (2002)
(sovereign immunity can prevent Congress from authorizing a state to be sued in an quasi-
judicial proceeding before a federal agency without the state’s permission).
12 United States v. Morrison, 529 U.S. 598 (2000).
13 42 U.S.C. § 13981 (2000).

Court in Lopez.14 This ruling seemed to reaffirm a trend in the Court to show less
deference to Congress in establishing the constitutional basis of legislation.15
However, Chief Justice Rehnquist was also the author of an opinion which
appeared to show the limits of the Court’s emphasis on federalism. Nevada
Department of Human Resources v. Hibbs,16 a 6-3 decision, involved the question of
whether the Family and Medical Leave Act of 1993 (FMLA) could be applied to the
states. In Hibbs, the Court held that Congress could use its enforcement authority
under the 14th Amendment17 to abrogate state sovereign immunity, based on a history
of state discrimination against women in employment.
Previously, the Court had been reluctant to find such an abrogation. For
instance, in Kimel v. Florida Board of Regents,18 which evaluated the application of
the Age Discrimination in Employment Act of 1967 against the states, the Court
noted that age discrimination was evaluated under a rational basis test.
Consequently, it was difficult for the Congress to show a pattern of unconstitutional
age discrimination by the states. Similarly, in the case of Board of Trustees v.
Garrett,19 which dealt with the American with Disabilities Act, the Court found no
pattern of unconstitutional discrimination against the disabled by the states.
In Hibbs, however, the Court held that Congress had the power to abrogate a
state's Eleventh Amendment immunity under the FMLA, so that a state employee
could recover money damages. The difference here is that the Court has found that
legislation which makes gender-based classifications is subject to a higher level of
scrutiny than the classifications made in Kimel and Garrett. Consequently, it was
easier for Congress to show a pattern of state constitutional violations regarding
women and employment, and the Court appeared to be more lenient in the types of
evidence it would consider to establish this. Justice Rehnquist’s opinion found that
Congress had established significant evidence of a long and extensive history of sex
discrimination with respect to the administration of leave benefits by the states, and
that history was sufficient to justify the enactment of the legislation under the 14th
Amendment. Still, by assigning the opinion to himself, Justice Rehnquist may have
sought to limit the scope of the decision.20

14 529 U.S. at 615 (stating that the reasoning of Congress would supply it with the power to
“regulate any crime as long as the nationwide, aggregated impact of that crime has
substantial effects on employment, production, transit or consumption”).
15 But see Gonzales v. Raich, ___ U.S. ___, 125 S. Ct. 2195 (2005) (holding that prohibition
on possession of medicinal marijuana was a “necessary and proper” component of larger
regulatory scheme to contain the flow of controlled substances in interstate commerce).
16 538 U.S. 721 (2003).
17 Section 5 of the 14th Amendment provides that “The Congress shall have power to
enforce, by appropriate legislation, the provisions of this article.”
18 528 U.S. 62 (2000).
19 531 U.S. 356 (2001).
20 But see Tennessee v. Lane, 541 U.S. 509 (2004) (upholding abrogation of state sovereign

Separation of Powers
Chief Justice Rehnquist participated in several major cases in this area, often,
though not exclusively, appearing to align himself with what might be considered a
“formalistic view” of separation of powers.21 Justice Rehnquist joined with the
formalists in Buckley v. Valeo,22 which held that Congress could not appoint officials
to any executive agency; INS v. Chadha,23 which struck down Congress’s use of the
one-house legislative veto; and Bowsher v. Synar,24 which held that Congress had
unconstitutionally usurped executive branch functions by assigning executive duties
to the Comptroller General, a legislative branch officer. Similarly, Justice Rehnquist
had dissented from the Court’s holding Nixon v. Administrator of General Services,25
in which the majority rejected the “‘archaic view of separation of powers as requiring
three airtight compartments of government.’”26
Justice Rehnquist, however, joined the majority’s opinion in Commodities
Futures Trading Commission v. Schor, which held that Congress’s grant of authority
to the CFTC to entertain state law counterclaims in reparation proceedings did not
violate Article III of the Constitution.27 The majority opinion expressly rejected the
formalistic approach to separation of powers in favor of what has been characterized
by some scholars as a more functional or flexible approach.28
In 1988, in the case of Morrison v. Olsen,29 the Court was presented with a
series of constitutional issues surrounding the Independent Counsel provisions of the

20 (...continued)
immunity by Title II of the ADA based on a fundamental right of access to the courts).
21 A “formalist” approach to separation of powers focuses upon the text of the Constitution
in an effort to ascertain to what degree branch powers and functions may be intermingled.
See Peter R. Strauss, Formal and Functional Approaches to Separation of Powers
Questions: A Foolish Inconsistency? 72 CORNELL L. REV. 488, 489 (1987) [hereinafter
Strauss]. The arguable effect of this approach is to ascertain whether the activity in question
is judicial, executive, or legislative in nature and to circumscribe power that extends beyond
the constitutionally assigned functions of a particular branch. See id.
22 424 US 1 (1976).
23 462 US 919 (1983).
24 478 U.S. 714 (1986).
25 433 U.S. 425 (1977).
26 Id. at 443 (quoting Nixon v. Administrator of General Services, 408 F. Supp 321, 342
(D.D.C. 1976)).
27 478 U.S. 833 (1986).
28 “Functionalism,” generally argues that precise definitional boundaries cannot serve as a
basis for the resolution of separation of powers issues. Thus, a functionalist approach
permits the sharing of power between branches, and concerns itself mainly with the
preservation of the core function of a particular branch. See Strauss, supra note 21 at 489.
29 487 U.S. 654 (1988).

Ethics in Government Act.30 Congress provided for the appointment of an
independent counsel, charged with the investigation of government officials
suspected of illegal activity, as well as for their subsequent prosecution. The statute
further provided that the independent counsel “may be removed from office, other
than by impeachment and conviction, only by the personal action of the Attorney
General and only for good cause, physical disability, mental incapacity, or any other
condition that substantially impairs the performance of such independent counsel’s
duties.”31 By the time the case reached the Supreme Court it contained not only
separation of powers questions, but also questions arising under both the
Appointments Clause32 and Article III of the Constitution.
The Court, in a groundbreaking opinion by Chief Justice Rehnquist, again
departed from its previous formalistic approach in favor of a more functional
position, holding that the independent counsel statute was a valid exercise of
Congress’s power. In reaching his conclusions, Chief Justice Rehnquist distinguished
Morrison from previous decisions in both Bowsher v. Synar33 and Myers v. Untied
States34 on the basis that the independent counsel statute before the Court “does not
involve an attempt by Congress itself to gain a role in the removal of executive
officials other than its established powers of impeachment and conviction.”35 The
Court found that removal authority was vested not in the Congress, but rather in the
Attorney General, an executive branch official who answers directly to the President,
subject only to the requirement that “good cause” be shown. The Court could find
no reason why “the President’s need to control the exercise of [the independent
counsel’s] discretion is so central to the functioning of the Executive Branch as to
require as a matter of constitutional law that the counsel be terminable at will by the
P resi d ent . ”36
Chief Justice Rehnquist’s opinion again focused on the fact that Congress did
not attempt to increase its own powers with respect to the removal of officers of the
United States in concluding that “this case simply does not pose a ‘danger of
congressional usurpation of Executive Branch functions.”37 Moreover, the Court
noted that the statute did not impermissibly grant the judiciary powers that could be

30 Ethics in Government Act of 1978, Pub. L. No. 95-521, 92 Stat. 1867 (1978) (codified as
amended at 28 U.S.C. §§ 591-599 (1982 ed., Supp. V)).
31 Morrison, 487 U.S. at 683.
32 U.S. CONST. Art. II, § 2, cl. 2 (stating that “ [the President] shall nominate, and by and
with the advice and consent of the Senate, shall appoint ambassadors, other public ministers
and consuls, judges of the Supreme Court, and all other officers of the United States, whose
appointments are not herein otherwise provided for, and which shall be established by law:
but the Congress may by law vest the appointment of such inferior officers, as they think
proper, in the President alone, in the courts of law, or in the heads of departments”).
33 478 U.S. 714 (1986).
34 272 U.S. 52 (1926).
35 Morrison, 487 U.S. at 686.
36 Id. at 691-92.
37 Id. at 694 (quoting Bowsher v. Synar, 478 U.S. at 727).

considered a usurpation of Executive functions because the judiciary could not have
acted independently of a request from the Attorney General. The extensive role that
the Attorney General, and by extension the President, possesses within the statute’s
framework provided, in the Court’s opinion, “the Executive Branch sufficient control
over the independent counsel to ensure that the President is able to perform his
constitutionally assigned duties.”38
The Right To Privacy
Chief Justice Rehnquist was an early skeptic of cases regarding the
constitutional right to privacy. For instance, he was one of only two dissenters to the
Court’s opinion in Roe v. Wade,39 finding that the right to an abortion did not fit
comfortably into either the text of the Constitution or the kind of “privacy”
protections which had previously been found protected under the Constitution.
Considering the specificity of the decision’s mandate, which divided pregnancy into
trimesters and treated regulation of each stage differently, Justice Rehnquist dissent
questioned whether the Court was undertaking a role more appropriately left to
l egi sl at ures. 40
Justice Rehnquist’s skepticism regarding Roe can be further seen in his opinion,
concurring in part and dissenting in part, in the case of Planned Parenthood v.
Casey.41 In that opinion, joined by Justices White, Scalia and Thomas, the Chief
Justice concluded that Roe v. Wade had been incorrectly decided and that its
subsequent interpretation had been increasingly confused and uncertain. Instead of
the standard adopted by the plurality in Casey, which allowed for restrictions that
were not “unduly burdensome,” the Chief Justice would have upheld restrictions on
abortion where such procedures are rationally related to a legitimate state interest.42
However, Justice Rehnquist also had a part in the recognition of an arguably
new privacy right, the right to terminate medical treatment. In the case of Cruzan v.
Missouri Department of Health,43 the Court considered two legal issues novel to the
Supreme Court: first, whether an incompetent patient had the constitutional right,
even absent legislative approval, to consent to the withdrawal of nutrition and
hydration; second, whether this right could be exercised by a guardian, and what
standard of proof would be required to show that such a course of action was the
intent of the patient. In an opinion by Chief Justice Rehnquist, the Supreme Court
ultimately decided that the state may require clear and convincing evidence of a
patient’s wishes, and if the guardians of the patient did not have sufficient proof,

38 Id. at 696.
39 410 U.S. 113 (1973).
40 Id. at 173.
41 505 U.S. 833 (1992).
42 Id. at 966.
43 497 U.S. 261 (1990).

nutrition and hydration could not be withdrawn.44 Perhaps reluctant to establish a new
constitutional right, Justice Rehnquist declined to explicitly endorse a “right to die,”
instead “presuming” the existence of such a right in order to reach the issue of
standard of proof. Regardless, this case is generally cited as the basis for the
establishment of this right, and has been central to other cases, such as the recent
litigation regarding Theresa Schiavo.45
Since joining the Court in 1971, Chief Justice Rehnquist has played a major role
in developing the Court’s Establishment Clause jurisprudence.46 The three-part test
established by the Court’s 1971 decision in Lemon v Kurtzman47 has, in one form or
another dominated this area. Justice Rehnquist, however, has consistently advocated
a narrow interpretation of the Establishment Clause, one which has found
constitutional many of the more controversial practices to come before the Court in
recent years. Justice Rehnquist’s views are reflected in numerous cases concerning
the establishment of religion. The three cases highlighted here, however – involving
school vouchers, the pledge of allegiance, and public display of the Ten
Commandments – best reflect his overall view of a narrow conception of the
Establishment Clause’s prohibition on recognition of religion by government.48
In the case of Zelman v. Simons-Harris,49 the Court addressed the
constitutionality of the Ohio Pilot Scholarship Program, which was created as a
partial response to a 1995 court decision that directed Ohio to take control of
Cleveland’s failing public schools. The program, which permitted voucher funds to
be used to pay parochial school tuition, was challenged as a violation of the
Establishment Clause. Chief Justice Rehnquist, writing for the Court’s majority,
employed a version of the Lemon test, finding that there was no dispute that the

44 The Court found that it was not constitutionally required that guardians or family be
allowed to effectuate such a decision. Cruzan, 497 U.S. at 284. Rather, the Court
determined that not only could a state require that a patient’s own personal wishes be
examined, but that absent clear and convincing evidence of such wishes, a state could
decline to allow withdrawal of treatment.
45 See CRS Report RL32830 (pdf): “The Schiavo Case: Legal Issues;” CRS Report 97-244
(pdf): “The 'Right to Die': Constitutional and Statutory Analysis.”
46 See U.S. CONST., Amend. 1 (stating that “Congress shall make no law respecting an
establishment of religion...”).
47 403 U.S. 602 (1971) (stating that for a law or practice to be constitutional under the
Establishment Clause it must: (1) have a secular purpose; (2) not have a primary effect of
advancing or inhibiting religion and; (3) not unduly entangle the state with religion).
48 For an academic overview of the Rehnquist Court’s impact on the First Amendment’s
Religion Clauses, see Kent Greenawalt, The Rehnquist Court: Religion and the Rehnquist
Court, 99 NW. U. L. REV. 145 (2004).
49 536 U.S. 639 (2002).

program served the “valid secular purpose of providing educational assistance to poor
children in a demonstrably failing public school system.”50
According to the Chief Justice, however, the central question was not whether
the program had a secular purpose, but rather whether it had an unconstitutional
effect of advancing or inhibiting religion. To determine this, the Chief Justice relied
on three prior cases involving indirect assistance to sectarian schools, namely,
Mueller v. Allen,51 Witters v. Washington Department of Services for the Blind,52 and
Zobrest v. Catalina Foothills School District.53 In each of these cases, the central
question for the Court was whether the aid was distributed on a religion-neutral basis
and whether the beneficiaries had a “true private choice” about whether to use the aid
at religious or secular schools.54
Applying the precedent to the Cleveland program, the Court held that Ohio’s
program provided “educational assistance directly to a broad class of individuals
defined without reference to religion, i.e., any parent of a school-age child who
resides in the Cleveland School District”55 and, therefore, according to the Chief
Justice, was consistent with the previous cases as a program of true private choice.
In Elk Grove Unified School District v. Newdow,56 commonly referred to as the
“Pledge of Allegiance” case, the Court’s majority opinion did not directly address the
merits of the case, choosing instead to focus on Mr. Newdow’s standing to challenge
the school district’s policy in federal court.57 The Chief Justice along with Justices
O’Connor and Thomas, however, concurred in the judgment reversing the Ninth
Circuit’s decision, but did so based upon findings that the phrase “under God” did
not violate the Establishment Clause of the First Amendment.
Relying on historical invocations of God, such as George Washington’s first
inaugural address, President Lincoln’s Gettysburg Address, and Woodrow Wilson’s
declaration of war against Germany, the Chief Justice concluded that “our national

50 Id. at 650.
51 463 U.S. 388 (1983).
52 474 U.S. 481 (1986).
53 509 U.S. 1 (1993).
54 Zelman, 536 U.S. at 652 (stating that “Mueller, Witters, and Zobrest ... make clear that
where a government aid program is neutral with respect to religion, and provides assistance
directly to a broad class of citizens who, in turn, direct government aid to religious schools
wholly as a result of their own genuine and independent private choice, the program is not
readily subject to challenge under the Establishment Clause.”)
55 Id. at 653. The Court rejected as irrelevant the statistics that 96% of scholarship recipients
enrolled in religious schools.
56 542 U.S. 1 (2004).
57 Elk Grove Unified School District v. Newdow, 542 U.S. 1, 124 S. Ct 2301, 2312 (holding
it was “improper for the federal courts to entertain a claim by a plaintiff whose standing to
sue is founded on family law rights that are in dispute when prosecution of the lawsuit may
have an adverse effect on the person who is the source of the plaintiff's claimed standing.”).

culture allows public recognition of our Nation’s religious history and character.”58
Given the long history of public recognition of God, for the Chief Justice the only
remaining question was whether the recitation on the pledge impermissibly coerced
a religious act.59 Important to this point is the fact that under the challenged
California state law the recitation remained voluntary, and therefore, could not be
considered a coercive religious act such as was found in Lee v. Weisman. The Chief
Justice was unwilling to find that the phrase “under God” could be reasonably seen
as a religious act, thus, according to his opinion, it “cannot possibly lead to the
establishment of a religion or anything like it.”60
In Van Orden v. Perry,61 the Court was presented with a monument of the Ten
Commandments displayed on the grounds of the Texas State Capitol. An
Establishment Clause challenge seeking removal of the monument was brought by
an attorney who frequently encountered it as he was traveling to and from the Capitol
grounds. The Chief Justice, writing for himself and three other Justices, began his
analysis, as in Newdow, by citing numerous examples of “official acknowledgment
by all three branches of government of the role of religion in American life,” and
noting that “recognition of the role of God in our Nation’s heritage has also been
reflected in [its] decisions.”62
The Chief Justice’s opinion found that “acknowledgments of the role played by
the Ten Commandments in our Nation’s heritage are common throughout America,”
and cited numerous places where the Commandments can be found on government
buildings throughout Washington, DC.63 While he acknowledged that the Ten
Commandments are and remain inherently religious, the Chief Justice noted that
“[s]imply having religious content or promoting a message consistent with a religious
doctrine does not run afoul of the Establishment Clause.”64
Chief Justice Rehnquist distinguished this case from Stone v. Graham,65 which
struck down a Kentucky statute requiring the posting of a privately purchased copy
of the Ten Commandments on the wall of each public school classroom in the state,
by making a distinction between religious displays in a classroom context and the
“more passive” display of the Commandments at issue on the grounds of the Texas

58 Id. at 2319.
59 See Lee v. Weisman, 505 U.S. 577 (1992).
60 Newdow, 124 S. Ct. at 2320.
61 125 S. Ct. 2854 (2005).
62 Id. at 2861.
63 Id. at 2862-2863 (noting that the Ten Commandments are depicted in the United States
Supreme Court building, the Library of Congress, the National Archives, the Department
of Justice, the Ronald Reagan Building, both the Court of Appeals and the District Court for
the District of Columbia, and the Chamber of the United States House of Representatives.)
64 Id. at 2863.
65 449 U.S. 39 (1980).

State Capitol.66 Noting the absence of the “particular concerns that arise in the
context of public elementary and secondary schools,” coupled with the fact that the
petitioner had walked past the monument for a number of years before bringing the
lawsuit, the Chief Justice determined that the monument in question was different
from the texts that confronted elementary school students every day in Stone.67 Thus
the Chief Justice held that the monument in question had a “dual significance,
partaking of both religion and government,” and, therefore, its inclusion among the
monuments on the Capitol grounds did not violate the Establishment Clause.68
Chief Justice Rehnquist also joined a dissent in the other Ten Commandments
case of his final Term, McCreary County v. ACLU of Kentucky.69 In McCreary, the
Court held that displays of the Ten Commandments in Kentucky county courthouses
violated the Establishment Clause. This dissent, authored by Justice Scalia,70 was a
broad-based attack on the Court’s Establishment Clause jurisprudence, challenging
the principle that government must be neutral between religion and “irreligion,”
asserting that government may favor monotheism in public displays and observances,
and criticizing the Lemon test and its applications.
Criminal Law
One of the mainstays of criminal procedure is the provision of Miranda rights
to criminal defendants. Recognizing that custodial interrogations are inherently
intimidating, the Supreme Court in Miranda v. Arizona71 set constitutional guidelines
for law enforcement agencies to use when conducting custodial interrogations, so as
to protect constitutional rights. These rights, including the Fifth Amendment right to
remain silent and the Sixth Amendment right to an attorney, must be verbally
explained to defendants who are taken into custody, in order to ensure that if such
rights are waived, that it is done voluntarily. This case was decided before Chief
Justice Rehnquist arrived on the Court.
Miranda has been the focus of significant criticisms, and it is not clear that,
absent stare decisis,72 Chief Justice Rehnquist would have supported the original

66 Van Orden, 125 S. Ct. at 2863-2864.
67 Id. at 2864.
68 Id.
69 125 S. Ct. 2722 (2005).
70 125 S. Ct. at 2748.
71 384 U.S. 436 (1966).
72 Stare decisis is the policy of courts to follow case law precedent. The Court is less
reluctant to overrule constitutional decisions than decisions interpreting statutes.
Nonetheless, the Court generally requires strong justification for overruling its earlier
constitutional decisions, looking to such factors as whether the rule of the earlier case has
been found "unworkable" or anachronistic due to other changes in the law, and whether the
rule can be removed "without serious inequity to those who have relied upon it." Planned
Parenthood v. Casey, 505 U.S. 833, 855 (1992).

decision.73 Further, as the verbal requirements of Miranda may not have been
constitutionally required, but were rather a “prophylactic” measure to protect
underlying rights, an argument could be made that Congress had the authority to
amend the requirements. Nonetheless, in Dickerson v United States,74 when the Court
considered the constitutionality of 18 U.S.C. § 3501, a statute which in essence
reversed Miranda and made the admissibility of confessions turn solely on whether
they were made voluntarily, Chief Justice Rehnquist wrote an opinion invalidating
the statute. In the opinion, he noted that despite the invitation of the Court in
Miranda for the legislature to develop other methods of ensuring the voluntariness
of confessions, that the Congress had merely sought to overturn the original ruling,
which was held to be beyond the power of Congress to accomplish.75
Chief Justice Rehnquist also dissented from the Court’s major decisions limiting
application of capital punishment for persons of diminished capacity. The Chief
Justice consistently favored reliance on two categories of objective criteria (“the
work product of legislatures and sentencing jury determinations”)76 to determine what
is “cruel and unusual,” and disfavored reliance on foreign law or the Justices own
views. In Ford v. Wainwright,77 which held that the Eighth Amendment’s
prohibition on cruel and unusual punishment prohibits a state from executing
someone who is insane and that Florida’s procedures authorizing the governor to
make the determination fell short of due process, Justice Rehnquist dissented on the
basis that there was a common law tradition of leaving such issues to executive
clemency.78 A few years later, Chief Justice Rehnquist voted with the majority in
holding that the Eighth Amendment does not prohibit execution of the mentally
retarded,79 and that states likewise are not prohibited from executing persons who
were 16 or 17 years of age at the time they committed their offenses.80

73 Dickerson v. United States, 530 U.S. 428, 443 (2000).
74 530 U.S. 428 (2000).
75 Id. at 440.
76 Atkins v. Virginia, 536 U.S. 304, 324 (2002) (dissenting).
77 477 U.S. 399 (1986).
78 477 U.S. at 431. The Justice pointed out that Florida, like all other states in the Union,
prohibited execution of the insane, and devoted his dissent to arguing that Florida’s
procedures for determining whether a condemned prisoner is insane were also consistent
with common law traditions.
79 Penry v. Lynaugh, 492 U.S. 302 (1989). Chief Justice Rehnquist joined a concurring and
dissenting opinion by Justice Scalia arguing that, because execution of the mentally retarded
was not “unusual” (an insufficient number of states prohibited the practice), there was no
need to consider whether it was in accord “with the theories of penology favored by the
Justices of this Court.” 492 U.S. at 351.
80 Stanford v. Kentucky, 492 U.S. 361 (1989). The Chief Justice joined Justice Scalia’s
opinion, part of which was opinion of the Court and part of which was not, holding that the
pattern of state and federal laws did not establish a national consensus against executing 16
and 17-year-olds , and arguing against reliance on indicia of consensus other than statutes
and the behavior of prosecutors and juries.

When the Court reversed its field, holding in 2002 in Atkins v. Virginia that a
national consensus had developed against execution of the mentally retarded, and
holding in 2005 in Roper v. Simmons that such a consensus had developed against
execution of juveniles under the age of 18, Chief Justice Rehnquist maintained his
position in dissent. Each time he joined broad-based dissents by Justice Scalia
challenging the Court’s “own evaluation of the issue” as well as its finding that a
national consensus had developed,81 and in Atkins he added his own dissent. Writing
separately to object to the Court’s reliance on “foreign laws, the views of professional
and religious organizations, and opinion polls,”82 the Chief Justice explained that
statutes and sentencing jury determinations “are the only objective indicia of
contemporary values firmly supported by our precedents, but “more importantly,”
that these democratic institutions “are better suited than courts to evaluating and
giving effect to the complex societal and moral considerations that inform the
selection of publicly acceptable criminal punishments.”83
Property Rights and Fifth Amendment "Takings"
Chief Justice Rehnquist frequently favored the side of the property owner in the
Fifth Amendment "takings" cases84 decided by the Court, most often joined by
Justices Scalia and Thomas. In the seminal case of First English Evangelical
Lutheran Church v. County of Los Angeles,85 for example, he wrote for the majority
that when the government is found by a court to have taken property through severe
regulation of its use, the government has the option of rescinding the regulation, but
must still pay for the temporary taking while the regulation was in effect. And in
Dolan v. City of Tigard,86 he wrote for the majority that to avoid being a taking, an
exaction condition on a development permit must display a "rough proportionality"
between the burden imposed on the land owner and the impact of the proposed
development on the community.
Most recently, Chief Justice Rehnquist joined a four-person dissent authored by
Justice O'Connor in the high-profile decision in Kelo v. City of New London.87 The
majority opinion held that the city's condemnation of private property, to implement

81 Justice Scalia’s dissent in Atkins objected to the “arrogance” he viewed as underlying the
Court’s assertion that “in the end our own judgment will be brought to bear on the question
of the acceptability of the death penalty.” 536 U.S. at 348. Justice Scalia was again
vehement on the subject in Simmons: “the real driving force” of the decision is the Court’s
“own judgment”; if the Court is going to rely on “evolving standards of decency,” it should
not “prescribe” those standards but instead should “discern them from the practices of our
people”. 125 S. Ct. at 1221, 1222.
82 536 U.S. at 322.
83 536 U.S. at 324.
84 The Takings Clause of the Fifth Amendment states: "[N]or shall private property be taken
for public use, without just compensation."
85 482 U.S. 304 (1987).
86 512 U.S. 374 (1994).
87 125 S. Ct. 2655 (2005).

its area redevelopment plan aimed at invigorating a depressed economy, was a
"public use" satisfying the Takings Clause – even though the property might be
turned over to private developers. The majority opinion was based on a century of
Supreme Court decisions holding that the term "public use" in the Takings Clause
must be read broadly to mean "for a public purpose" – in this instance, revitalization
of the local economy. The dissenters, however, argued that even a broad reading of
"public use" does not extend to private-to-private transfers solely to improve the tax
base and create jobs. In strong language, Justice O'Connor, joined by Rehnquist and
others, declared that "[u]nder the banner of economic development," the majority
opinion makes "all private property ... vulnerable to being taken and transferred to
another private owner, so long as it might be upgraded." The Kelo decision has
triggered legislative proposals in most of the state legislatures and in Congress aimed
at discouraging or prohibiting the use of condemnation solely for economic
Affirmative Action
One of the most contentious areas of affirmative action has been in the area of
preference in admissions of educational institutions. Over a quarter century ago, the
Supreme Court issued an opinion in the case of Regents of the University of
California v. Bakke.88 A controlling concurrence by Justice Powell in that case
concluded that the attainment of a diverse student body is "a constitutionally
permissible goal for an institution of higher education," noting that "[t]he atmosphere
of 'speculation, experiment, and creation' so essential to the quality of higher
education is widely believed to be promoted by a diverse student body.”89
Subsequently, many colleges and universities established affirmative action policies.
In Grutter v. Bollinger,90 a five Justice majority of the Justices held that the
University of Michigan Law School had a "compelling" interest in the "educational
benefits that flow from a diverse student body," which justified its consideration of
race in admissions to assemble a "critical mass" of "underrepresented" minority
However, in the companion case of Gratz v. Bollinger,91 authored by Chief
Justice Rehnquist, six Justices decided that the University's policy of awarding "racial
bonus points" to minority applicants was not "narrowly tailored" enough to pass
constitutional scrutiny. Chief Justice Rehnquist noted that Justice Powell's opinion
called for evaluating an individual's ability to contribute to a student body in the
unique setting of higher education. Chief Justice Rehnquist interpreted this to mean
that individualized consideration of diverse characteristics was permissible, but that
automatic assignment of points to members of an "underrepresented minority" group
was not. Of particular concern was that the number of points assigned would ensure
that virtually every minimally qualified minority applicant would be admitted.

88 University of California Regents v. Bakke, 438 U.S. 265 (1978).
89 438 U.S. at 311.
90 539 U.S. 306 (2003).
91 539 U.S. 244 (2003).

Ultimately, the Court concluded that there were limits on what procedures a
university could employ to achieve its desired goal of diversity.
Fourteenth Amendment
Over the years, the Supreme Court has recognized increased responsibilities of
the state governments to protect certain of their citizens. For instance, in Youngberg
v. Romeo,92 the Supreme Court held that an individual who was involuntarily
committed to a state institution for the mentally retarded had a constitutionally
protected liberty interest in safety, freedom of movement, and training within the
institution, and that the state was, within limits, required to protect such rights.
Similarly, the Court has noted that a prisoner has a liberty interest in receiving
medical care, since it is the only entity in a position to provide those services.93
In the case of Deshaney v. Winnebago County Department of Social Service,94
a child who had been the subject of numerous investigations by a local Department
of Social Service because of suspicions that he had been abused was severely beaten
by his father. A suit was brought against the Department alleging that since the state
had undertaken to protect Joshua from this danger, the state acquired an affirmative
"duty," enforceable through the Due Process Clause. The argument was made that,
based on this “special relationship,”failure to discharge this duty was actionable.
The Supreme Court took the case to resolve a split in the circuits. Chief Justice
Rehnquist wrote an opinion noting that previous findings of “special relationships”
had been based on the state having confined or otherwise restricted the actions of an
individual. However, the harm suffered by this child occurred not while he was in the
state's custody, but while he was in the custody of his natural father. The state played
no part in the creation of the danger, nor did it do anything to render the child more
vulnerable to them. Consequently, Chief Justice Rehnquist found that the state had
no constitutional duty to protect Joshua.95

92 457 U.S. 307 (1982).
93 Estelle v Gamble, 429 U.S. 97, 103 (1976).
94 489 U.S. 189 (1989).
95 This cases is now settled law, as illustrated by the Court’s opinion in Town of Castle Rock
v. Gonzales, 125 S. Ct. 2796 (2005).