The Forgotten Cheesehead

On Inauguration Day 2009, two old Harvard Law Review editors stood up in front of the U.S. Capitol and raised their right hands.  When President-Elect Barack Obama and Chief Justice of the Supreme Court John Roberts attempted to recite the Oath of Office, they both mixed up their words, unintentionally issuing a binding presidential edict that everyone in America was entitled to a free medium fries at Burger King.  (They later re-did the oath the proper way, making Obama officially the President, but leaving Americans fry-less; a questionable trade-off.)

While many constitutional scholars huddled around the issue about whether Roberts and Obama had to re-take the oath, I was more interested in another aspect of their convergence on the podium together: Who has the better job?

When you’re President, there certainly are a lot of perquisites.  You get to fly anywhere you want, host celebrities at the White House, declare pre-emptive wars, create lists of enemies which you can then hassle with the IRS, and for some presidents, it’s a good opening line when you meet chicks.  On the other hand, you don’t really get to make too many laws on your own – you can only sign or veto bills passed by the baboons in Congress.  And you can’t really go anywhere on your own for the rest of your life – you’ll always be tailed by Secret Service and mobbed by people wherever you go.  Plus, you have to go out and beg for your job in four years, and even if you get it back, you’re done four years after that.

On the other hand, Chief Justice of the Supreme Court is a pretty sweet gig.  You have your job for as long as you want it.  If “the public” doesn’t like one of your positions, you can write lengthy, erudite opinions explaining the three-pronged test you applied to determine that they can all kiss your butt.  Sometimes, you actually get to pick the president.  Instead of having to deal with 535 legislative troglodytes concerned only with their own self-interest, you only have to sweet talk eight other justices.  Most importantly, you have unquestioned supremacy over the legislative and executive branches – whatever you say, goes.  And I hear Souter gives good backrubs, so there’s that.

On the whole, give me the Chief Justice job.  It’s the ultimate chance to shape American culture and mores for a longer period of time.  You get to determine the great constitutional questions; when life begins and when it ends; what governmental involvement in religion should look like, what “free speech” actually means, and so on.  Plus, given that Simon Cowell is the only judge Americans can actually name, you can toil in relative anonymity.

As it happens, Wisconsin birthed one of these mystical Chief Justices of the Supreme Court.  In fact, he served on the High Court for 33 years.  You may have heard of him – his name was William Rehnquist, and he was from Shorewood, just north of Milwaukee. He passed away in 2005, and was replaced by Roberts (a nomination that Obama voted against, ironically.)

 If one accepts that being the Chief Justice is the most important job in America, then a Milwaukee native held that job for 19 years.  And yet his memory seems to have all but vanished from our collective consciousness.  Imagine if a Wisconsinite had held the presidency for 19 years (22nd Amendment notwithstanding, of course.)  We’d be holding a ticker-tape parade annually for them.  Just think – if Russ Feingold hadn’t been divorced more than the Gabor sisters, he could very well be president right now.  Fighting Bob LaFollette merely ran for president, and he still retains cult-like status among progressives here.  Half the state is named after Gaylord Nelson, and he never even ran for president.

Yet here we have Rehnquist, during whose tenure the Court’s temperament shifted dramatically.   In a 2006 visit to Milwaukee, Justice Antonin Scalia relected on Rehnquist’s tenure, saying the Rehnquist court's true legacy is a movement toward "neutral, non-substantive and more easily ascertainable" methods of interpreting both laws and the Constitution. In other words, rather than deciding cases based on changing community standards or legislative history, justices are more often using textualism.  During his tenure as Chief Justice, Rehnquist’s court would decide landmark cases dealing with virtually every salient constitutional issue – from the proper exercise of the Commerce Clause, to gay rights, to free speech, to support for school vouchers.

Of course, as in the case of any public official, there were some missteps along the way.  The time and thought Rehnquist put into how many stripes he should have on the robe he wore during President Clinton’s impeachment hearing seemed to be a little over the top.  And he wasn’t exactly the most dynamic public speaker – had he lived longer, you wouldn’t exactly be seeing him selling ShamWow on television.  (Which, as we all know, is the gold standard for public speaking.)  Conservatives may have some gripes about some of the cases his Court refused to overturn (Roe v. Wade, Miranda v. Arizona), although Rehnquist personally dissented in many of the cases upholding those controversial opinions.

Regardless, the fact remains – Rehnquist was perhaps the most powerful man in America for two decades, and we have yet to pay him the proper respect.  The fourth-longest serving Chief Justice in U.S. history is one of our own, yet since his death, the Milwaukee Journal-Sentinel has only been able to muster a handful of stories mentioning his name – mostly in reference to Scalia’s visit in 2006.  While Scalia may be more bombastic and Justice Clarence Thomas more controversial, it is not an overstatement to say that Rehnquist may have been the most consistent conservative voice in American jurisprudence in the past 30 years. One wonders whether Rehnquist would be lionized by the state press had he shifted the Court to a more activist role, in the mold of Chief Justices Warren and Burger before him.

As it stands, it seems Rehnquist has already been cast into the bin of Great Forgotten Wisconsinites.  (In Heaven, he is no doubt commiserating with Donald K. “Deke” Slayton, one of the original seven Mercury Astronauts, who hailed from Sparta.)  This is unfair treatment for a man who even Justice Thurgood Marshall would call "a great Chief Justice."  He deserves better.

-February 9, 2009