Chief Justice William H. Rehnquist is often viewed as the ultimate "political" judge. According to Mark Tushnet, for example, "[o]ne could account for perhaps ninety percent of Chief Justice Rehnquist' s bottom-line results by looking, not at anything in the United States Reports, but rather at the platforms of the Republican Party." Nowhere is this attitude more prevalent than with respect to issues of statutory interpretation. When I informed colleagues I was working on an article about Chief Justice Rehnquist's theory of statutory interpretation, the almost universal response was: "What theory?"
Contrary to the common view that Chief Justice Rehnquist is simply a "Republican Chief Justice," especially in statutory construction cases, I will argue here that his judicial performance largely conforms to a coherent theory of law and politics. There is not a perfect fit between theory and practice: it would be more than a little astonishing if there were, given the practical constraints under which Justices labor, including the need to respect (most) prior majority opinions and to compromise ( often) with colleagues in forging new majorities. Still, it is my sense that Chief Justice Rehnquist is far more internally consistent than most Supreme Court Justices, and that the best predictor of his behavior is not the platforms of the Republican Party but an implicit theory of the political system and of the proper role of the judiciary within it.
Judges | Law | Supreme Court of the United States
Thomas W. Merrill,
Chief Justice Rehnquist, Pluralist Theory, and the Interpretation of Statutes,
Rutgers L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3825