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The Supreme Court -- Transcript

The Rehnquist Revolution

PROTESTORS (Singing)
The revolution has come (off the pigs)...time to pick up the gun (off the pigs)...the revolution has come (off the pigs)...time to pick up the gun (off the pigs)...the revolution has come (off the pigs)...time to pick up the gun (off the pigs)....the revolution has come.....

RICHARD M. NIXON
Tonight it's time for some honest talk about the problem of order of the United States. I in a sense am in the ring tonight, and I think this is the time and this is the place to take off the gloves and sock it to them.

KOBYLKA
Richard Nixon rides into town and says, 'We will give you order. We will give you peace. We will give you what you want, which is security.' And so Nixon's promise is to end the chaos, to end the disorder, and part of that was, from his perspective, a function of the court.

KLARMAN
Nixon's committed to appointing justices who will repudiate much of what the Warren Court's done.

KOBYLKA
Nixon gets his chance, and it's an extraordinary chance. This is something that no President since Roosevelt had had. He has four appointments in less than two years. There are nine people on the Court. That's almost half the Court. You wipe out almost half of the Warren court in one fell swoop. So the stage is set for the 'Nixon Revolution.'

NARRATOR
Nixon knew what sort of man he wanted: strong conservatives who believed in law and order, nominees from the South and with judicial experience-and young enough to serve some decades on the Court. He wanted judges who would stick to the letter of the Constitution, and where it was fuzzy, let the government do what it liked. He called them strict constructionists. And to find them, a bright young man searched the rosters, the assistant attorney general, William H. Rehnquist.

POWE
'Strict constructionists' became the code word for 'not people like those on the Court.'

SIMON
'Strict constructionists' was gonna favor government and law enforcement against individual liberties and certainly those of criminal suspects.

RICHARD M. NIXON
Ladies and Gentlemen, I am very proud tonight to nominate as the 15th Chief Justice of the Unites States, Judge Warren Burger.

NARRATOR
It wasn't all easy. Two Southern nominees-Clement Haynesworth and G. Harold Carswell-were rejected by the Senate.

Nixon settled for Burger's childhood friend from Minnesota, the little-known Federal Appeals Court judge Harry Blackmun.

And finally, he got one man from the South: Lewis Powell, a Virginian. But by then he'd burned through every name the Justice Department had collected.

What about that Rehnquist fellow? Only 47-perfect! Strong on law and order, critic of the Warren Court since the early fifties, a former clerk for Justice Robert Jackson. Not that Nixon knew all that. 'Renchburg?' Nixon asked. 'Is he Jewish?'

KOBYLKA
Nixon doesn't know him other than visually, and Rehnquist is something of a flamboyant dresser. He favored pink shirts. Richard Nixon was not a pink shirt kind of guy. Rehnquist had long hair. He wore it over his ears, and he had long mutton chop sideburns.

DELLINGER
He had been number one in his class at Stanford Law School. He had clerked for Justice Robert Jackson. He had written an article decrying the influence of liberal law clerks, making the Court too liberal.

BISKUPIC
I remember him telling me a story that he'd won a lot of money in a betting pool because he was the only who thought Eisenhower would beat Stevenson among the clerks for the presidency that year. So he always was by himself sort of politically in some ways.

SIMON
He was very, very smart; very, very conservative. He thought the Warren Court stood for a Court that was much too overly solicitous of criminal suspect rights and communist sympathizers.

HOWARD
Rehnquist was the most active in the Nixon Justice Department in monitoring the work of anti-war groups, who were thought to be a bit unpatriotic.

NARRATOR
Rehnquist's hard opposition to the anti-war groups rang the alarm bells in the Senate. And then there was an allegation that, back in Phoenix, he'd served as a GOP poll watcher, trying to keep blacks from voting. It was certainly fact that he wrote in opposition to a public accommodations law, contending that all the law in the world wouldn't make whites like colored folk, so what was the point?

In the Judiciary Committee, Lewis Powell sailed through by unanimous vote. Rehnquist got by the same day-but with noise, contention, and a solid bloc of Democrats against him.

DELLINGER
Between the judiciary committee voting him out and the full senate considering his nomination, one of the magazines published a memo that he had written to Justice Robert Jackson about the Court's landmark decision in Brown versus the Board of Education. And this memo made the argument that the Court should not try to overturn racial segregation in the South.

SENATOR
In the mid-60's, when this whole nation was pouring out his heart to those who had been discriminated against for a hundred years, the man who is now one step away from the Supreme Court was saying black people can't even go to drugstores to get an aspirin in Phoenix, Arizona.

SENATOR
The white people of this country simply don't have the decency, for the most part, to recognize that a man who kicks Negroes in the teeth is unfit to sit on the Supreme Court of the United States.

SENATOR
Let me tell ya something, we've got much more right now on Rehnquist that we had on Carswell or Haynesworth when you felllas were saying you haven't got a chance.

COOPER
It was the personal attacks on his earlier years in Arizona that I think were unexpected to him. I know those affected him deeply and took him by surprise.

REPORTER
Could you wait one minute sir....

WILLIAM H. REHNQUIST
I want to express my thanks to the Senate for having confirmed me, and again to the President for showing the confidence in me that he did by nominating me, and to the many people in and out of government without whose loyal support, the outcome might have been quite different. Thank you.

REPORTER
Could you answer a few questions?

WILLIAM H. REHNQUIST
No, I'd rather not. Thanks.

NIXON (audio)
I will give you only one last bit of advice because you're going to be independent, naturally. And that is: Don't let the fact that you're under heat change any of your views

WILLIAM H. REHNQUIST (audio)
I'll remember that.

NIXON (audio)
So just be as mean and rough as they said you were. Okay?

WILLIAM H. REHNQUIST (audio)
Thanks Mr. President

NIXON (audio)
Alright. Good luck. Bye.

WILLIAM H. REHNQUIST (audio)
Thanks a lot. Goodbye.

NARRATOR
'Mean and rough' were about law and order. That wasn't what he'd run into. Before he could even take the oath, his fellow justices were hearing a little-known case that would push them into new terrain-ground they weren't eager to traverse.

BISKUPIC
You have a case coming from Texas begun by a woman who, on paper at least, is named Jane Roe. She was 21 years old, she was pregnant and she didn't wanna have this baby.

The Texas law was one of the strictest in the nation. It allowed abortion only in cases to save the life of the mother. So even if you had a situation where a young woman had been raped or the victim of incest, she still could not get an abortion in Texas.

PROTESTORS
Equal pay for equal work. Join our crowd.

ALLEN
Women were, by definition, by nature intended, many people believed, to take care of homes and children. And to say that's not true but that women have a right to be lawyers and doctors and police officers, that was radical.

BISKUPIC
You have the Equal Rights Amendment moving through the Senate and the House. You have Ms. Magazine being started by Gloria Steinem. You have the American Civil Liberties Union starting a woman's rights project. There's a lot of agitation in America over women's rights.

PROTESTORS
Abortion is our right...you can't deny...abortion is our right...

ALLEN
In those days there was an assumption that if you had a baby, if you were a mother, you were no longer entitled to pursue a career. Abortion rights meant, symbolically, that women did have choice. Women could say not now, later-or not at all.

POWE
I think the justices believed that the women's rights movement was so clearly the wave of the future that was just about to happen that everybody's for abortion, because everybody's for women's rights.

PROTESTORS
...What do we want...

NARRATOR
In fact, in conference, there was an easy majority for striking down the Texas law.

BISKUPIC
Warren Burger gives the opinion to his friend, Harry Blackmun. Harry Blackmun and Warren Burger had been childhood chums in Minnesota. Warren Burger, I think, believes that he could have more control over the opinion.

NARRATOR
Blackmun didn't know why Burger assigned the opinion to him. Maybe because he'd been counsel to the Mayo Clinic back in Minnesota. But what would his doctor friends think about this case? Blackmun was in turmoil.

At home, his three grown daughters happened to be visiting, so at supper Blackmun put the question: "What are your views on abortion?" By the time his wife and three daughters sounded off on him, Blackmun announced, "I think I'll go lie down. I'm getting a headache."

BISKUPIC
Justice Blackmun was a, very green justice at this point in his career. The workload is very tough for him. This is a very hard case. It's very much of a burden within the marble walls.

CBS ANNOUNCER
From CBS News headquarters in New York, this is the CBS evening news with Walter Cronkite.

WALTER CRONKITE
Good evening. In a landmark ruling, the Supreme Court today legalized abortions. The majority in cases from Texas and Georgia said that the decision to end the pregnancy during first three months belongs to the woman and her doctor, not the government. Thus the anti-abortion laws of 46 states were rendered unconstitutional.

KLARMAN
How in the world did such a conservative justice write this incredibly activist, liberal opinion in Roe? Well if you go back and read the opinion, it doesn't read as some sort of charter of feminist rights; it reads as a charter of doctors' rights. He actually researched the history of abortion, and his visceral response was, "The state ought not to be telling doctors how to regulate pregnancy."

POWE
Whether you like abortion or dislike abortion, you can't like Justice Blackmun's majority opinion. It tells you a lot about the history of abortion, but what the history of abortion has to do with United States Constitution is a tie that Justice Blackman was not able to make. This is an opinion that has a result, but without reason.

BISKUPIC
He's looking at it in terms of a decision that should be left between a physician and a woman. But, of course, this is a test of what the Constitution holds. And what he ends up doing in his opinion is grounding it in a right of privacy.

William Rehnquist was in the Justice Department and helped screen Harry Blackmun. And here he sees this man writing this very expansive opinion in Roe versus Wade. Lewis Powell is joining it. Warren Burger is joining it. Rehnquist is by himself among the Nixon appointees at that time.

Bill Rehnquist saw the Constitution very narrowly protecting individual rights. So he never could have envisioned a right of privacy to be found in the Constitution.

POWE
Rehnquist is arguing that the Court has no business deciding it. There's no constitutional hook. Because you can't pretend that the text of the Constitution says anything about abortion. You can't pretend that the legislative history of the 14th amendment says anything about abortion. You can't find a precedent in the Supreme Court that says anything about abortion. This one's out of the blue.

MEESE
Bill Rehnquist felt that the states should have primary authority in those matters that were most affecting people in their day-to-day lives. They knew how to handle their own lives and they didn't need a lot of supervision from the Court.

NARRATOR
Less than ten years after the epic fight to end segregation, the idea that states could be trusted to be fair was not a widely held view on the court. Rehnquist ended up on the short end of so many 8 to 1 votes the clerks started calling him the Lone Ranger.

ROBERTS
Got to the point that a group of his early law clerks gave him a little Lone Ranger doll that he proudly displayed on the mantle in his, in his chambers. But Justice Rehnquist came to the Court with a well-defined legal philosophy. And he was gonna articulate it.

HOFFMANN
Justice Rehnquist did have confidence that people can generally be trusted to do the right thing, at least in the long run. And I think that does color, to some extent, his view about the role of the Supreme Court. If you think people are basically pretty good, then you don't need a bunch of platonic guardians sitting in a marble hall in Washington, D.C. ordering them to do this or that.

HOWARD
He stood by himself. It didn't seem to trouble him. Even though he was the only dissenter. He wasn't gonna change his views and say, 'Okay, you've got me, I'm by myself.'

KOBYLKA
This is not an angry man. This is a man who is simply not winning at this point in time.

O'CONNOR
He was not a self-doubter, nor did he think he had to impose his views on the rest of the world. He just set out what he believed, and he thought it was persuasive, and if people agreed with him, well and good; if they didn't, that was all right, too.

NARRATOR
The court pecked at the borders of the Warren Court's work - put a couple of dents in the hated Miranda warnings. But suspects still had the right to remain silent. They still had lawyers. And Rehnquist was still the Lone Ranger. Nixon's appointees didn't turn out to be a majority of their own. They joined the existing court majority that was under the influence of one of the most liberal justices in history, William J. Brennan.

COOPER
Bill Brennan over the thirty-year period of his tenure on the Court had greater influence on domestic social policy than any president had had and for that matter any other single individual had had.

KRAMER
Justice Brennan was active in using the Constitution to reshape American law and politics. He had real empathy for people who were weak or powerless, who life had treated badly. And he believed that people should do what they could to help those people wherever they were. What was the Constitution for? What good was it if it didn't actually help to make the lives of the citizens of the United States better?

KOBYLKA
Brennan's approach to law was that, to have any impact on the law, you have to win the case. It takes five votes to win, that's the first thing he always told his clerks, 'You can't do anything here without five votes.' So Brennan was adroit at doing what Warren did, which was walk the halls, work the justices, find out what could bring them to his position. He'd write memos, 'I don't think we're very far apart here. If I were to do this, could you see clear to sign the opinion?' This is the Brennan style.

YOUNG
It was like there was this magnetic field within five feet of him, and I always felt that when I got that close to him, I guess I could remember vaguely that there were some decisions of his that I disagreed with, but I couldn't really remember which ones or why I would possibly have thought such a thing. He just had such a powerful warmth to him.

KOBYLKA
He was oftentimes able to reach in, and win the case, much to the consternation of Burger, who had no strategic skills whatsoever.

NARRATOR
Warren Burger was a conservative, fond of quoting a 19th Century British historian, who complained about the U.S. Constitution: "It's all sail and no anchor!"

He was even fonder of traveling to London and living like a Lord. But try as he might, Chief Justice Burger was not equipped to build a conservative majority on the Court. He was never going to lead the count to revolution.

The job of leadership would fall to a man who cared for no perquisites-comfy Wallabies on his big feet and a cheeseburger for lunch-Bill Rehnquist. It was he who would take on Brennan and one of Brennan's most cherished decisions, Fay versus Noia, from back in 1963, the high-water mark of the Warren Court activism.

KRAMER
The criminal law jurisprudence of the Warren Court is just thoroughly tied up with the race issue. And is very much undoing a deeply ingrained long-standing system that involved mistreating blacks in the South. Justice Brennan believed the federal courts were gonna have to do something to push that system and make a change. And that's only gonna happen if the Supreme Court can expand the authority of the federal courts so that the federal courts can begin to push the state courts. And that's what they did in Faye v. Noia.

POWE
He didn't wish, and other justices on the Court didn't wish, people to be languishing in jail because their convictions were obtained through violation of constitutional rights. It just doesn't seem fair.

HOFFMANN
Faye v. Noia was Justice Brennan's magnum opus. It's a rhapsody. It's poetry. It's song. It's, it's his ode to individual rights and to individual liberties.

NARRATOR
To Rehnquist, this ode looked like disrespect for the states and chaos in the federal courts. Brennen's opinion in Faye meant any convict could petition to overturn what the state had done. And thousands did. Federal courts were swamped.

In 1977, in Wainwright versus Sykes, Rehnquist saw his chance to restore some order. This was the ground where the Nixon justices could make their stand: criminal procedure. And it was a state's rights issue, where Rehnquist's long years as the Lone Ranger might pay off.
HOFFMANN

Sykes had been convicted of third degree murder based on confessions he had made to his wife and to the police. He called his wife and told her that, that he had killed somebody. His wife called the police. The police came to his trailer. Found him there, found the dead body. He told the police what he had done. He was read his Miranda warnings. He was eventually convicted of the crime.

NARRATOR
But five years later the case arrived at the Supreme Court, with Sykes's lawyers claiming that the state had violated his constitutional rights because he'd never understood he had a right to remain silent. Sure he never mentioned this in Florida courts, in any of his trials. But now his confession, his conviction, it should all be thrown out.

YOUNG
Rehnquist thinks of the defense lawyer as this shifty ingenious person who's sandbagging his arguments because he wants to keep them away from the state court and go straight to a sympathetic lefty federal judge, if he can get one, right? Whereas Brennan is thinking of these mistakes as arising from the fact that most defendants in state courts don't have very good lawyers, so these are just honest mistakes being made.

HOFFMANN
From Justice Rehnquist's point of view, Sykes had his day in court, he didn't say anything. Then he had a chance to appeal the issue and he still didn't say anything. You get a reasonable number of bites at the apple and that's the end of it. That's what finality means. And he would say that's doubly true when it's a federal court that's being used in this way to re-litigate issues that have already been litigated fully and completely in the state court.

KOBYLKA
Rehnquist says,--and this is the law is a cold but clear arbiter-"If you're going to make that argument, you have to make it in state courts, because state courts deserve respect." To somebody like Rehnquist, the law is about rules. Rules must be followed. The law's job is to order. It is not to foster progress.

HOFFMANN
I think Justice Rehnquist's persuasive explication of his views in some of his early opinions gradually took hold. People read them, thought about them, and gradually said, "Well, wait a minute, there might be something to this, this point of view."

KRAMER
Intellectually, Rehnquist is clearly the leader there. He has the clearest vision and the best skills to produce the outcomes. Certainly none, none of the other conservative justices could have done that anywhere near as well as, as he did.

KOBYLKA
The vote in Sykes is 7 to 2. All the Nixon appointees, Byron White, Potter Stewart, and John Paul Stevens, the new Ford appointee, in the majority, with Rehnquist writing for the majority, protecting the autonomy of state criminal systems with Brennan and Marshall, the two holdovers from The Warren Court, in dissent. On Rehnquist, Nixon got it right.

CHIEF JUSTCIE BURGER
Place your left hand on the bible and raise your left hand and repeat after me. I, Ronald Reagan, do solemnly swear.

RONALD W. REAGAN
I, Ronald Reagan, do solemnly swear.

GILLMAN
The kind of vision that Rehnquist stood for, which was so unusual in the 1970s, becomes much more possible when you have this much more conservative President preparing to make appointments to the Court.

MEESE
Ronald Reagan had a very strong feeling about the importance of states having the ability to truly represent their people in determining policy. He felt that that was true particularly as a matter of what the Court should be doing.

NARRATOR
Richard Nixon's 'strict constructionists' had failed to change the Court's direction. Now, the buzzword wasn't 'law and order' but something more ambitious.

The 'Reagan Right' didn't just want to untie the hands of police. They wanted to crack down on obscenity and Godlessness, put a stop to affirmative action and abortion rights-the agenda that would come to be known as 'family values.'

KRAMER
The social issues just had not been on anybody's mind when Nixon made his nominations for the Court. Those emerge in the 1970s and those are the major issues as, as the Court moves into the 1980s. And the pressures on a President are to appoint justices who are gonna now undo, ironically, decisions of the Burger Court.

HOWARD
The Reagan Justice department didn't want to make Nixon's mistake. They looked back and said, "Look: he put four people on the court and nothing changed. They gave us Roe vs. Wade and all these other opinions. We're gonna do it differently."

BISKUPIC
We're just two, three months into President Reagan's term, and Potter Stewart privately reveals that he wants to step down in June of 1981. And remember, Ronald Reagan had said during his campaign that if elected he would appoint the first woman to the Supreme Court.

KOBYLKA
Who do you appoint? Where do you find this woman? Jimmy Carter appointed more women to the federal courts than all other presidents combined before him. So you have women in the federal courts, but they're all Carter appointees, liberal democrats. Ronald Reagan's not in the business of putting liberal democrats in life-tenured positions. So you have to look outside the usual pool where you fish, and he cast his line to Arizona.

REPORTER
These people standing on the stepladders are not fruit pickers. They are the White House press waiting for President Ronald Reagan and Judge Sandra O'Connor to stroll casually into view.

BISKUPIC
Sandra Day O'Connor really wasn't well known in legal circles, but she had deep political connections. Every step she had made before this point had brought her more into the sphere of national politics. She was a good friend of Barry Goldwater's, the conservative Senator from Arizona who was actually the precursor of the conservatism that Ronald Reagan brought to Washington in 1981.

Through serendipity she had met Chief Justice Warren Burger in 1979 on a houseboat vacation on Lake Powell in Utah. So even though it seemed like a lightening bolt out of the blue, a lot of groundwork had been laid-and some by herself.

REPORTER
Morning

SANDRA DAY' OCONNOR
Morning...Well I hope so.

DELLINGER
She knew the burden she was carrying as the first woman to be in that exalted a position in our government and that people were gonna see this as an experiment.

O'CONNOR
I didn't know if I had the experience that would enable me to do a good job on the Court. It's wonderful to be the first to be asked to do something, but I didn't want to be the last. And for me to take that job and not perform it well enough could have been a disaster for women. It was my husband who said, "Sandra, you have to do it. Of course you'll do fine. Of course you will."

NARRATOR
In the hubbub about the first woman on the Court, it was little remarked that Sandra Day O'Connor was also an old friend of Bill Rehnquist. They'd met when she was just sixteen. They were law school classmates, and even dated. They were both lawyers in Phoenix, comrades-in-arms in the Goldwater crusade. The expectation, at least in the White House, was that Rehnquist at last would have a sure ally on the Court.

KOBYLKA
The hope is that she's a vote against Roe vs. Wade. The hope is that she's a vote against kicking God out of the public schools. The hope is she's a vote against affirmative action.

MEESE
In 1986 Chief Justice Burger came to the President very privately and told him that he would like to retire from the Court. In this case the President kept it very quiet.

KRAMER
We're all in chambers one day just working on stuff and somebody comes down, and says, "Oh quick come down to the conference room," which had never happened. All of the clerks are there and all of the justices are there too except for Berger and Rehnquist. And they'd set up a TV.

REPORTER
Peter, I think this is something that came up. It's not something that they've been working on for a week.

MEESE
Reagan called a press conference for one o'clock in the afternoon. And the members of the news media had no idea why this was called.

REPORTER
'Speak strongly' urged the networks to carry it, which obviously means they think it's some sort of dramatic news.

ANNOUNCEER
Ladies and Gentleman (Warren Burger is here) the President of the United States.

MEESE
When President Reagan walked in with Chief Justice Berger, as well as Justice Rehnquist and Court of Appeals Judge Antonin Scalia and it took the press totally by surprise. It was one of the few instances in eight years that there was absolutely no leak in advance of what was happening.

RONALD W. REAGAN
Today, I receive with regret, Chief Justice Burgers' letter formally notifying me of his retirement, and I am pleased to announce my intention to nominate William H. Rehnquist as the new Chief Justice of the United States. Upon Justice Rehnquist confirmation, I intend to nominate Antonin Scalia, currently a judge of the United States Court of Appeals, for the District of Columbia Circuit.

REPORTER
You sir, have had the reputation more as a thinker and writer on the Court than as an administrator. Do you consider it the culmination of a dream to be Chief Justice?

WILLIAM H. REHENQUIST
I wouldn't call it the culmination of a dream, but it's not everyday when you're 61 years old that you get a change to have a new job. And you take on some things you don't like along with a lot of things you do like.

KRAMER
The reactions in the room were kind of like a mix-like, like, "Wow." And then those few of us who knew something about Scalia, there was a kind of "Oh-oh," you know, 'cause, he is out there!

DELLINGER
Antonin Scalia was the real thing. He believed in state power. He believed in government power. He took a narrower view of individual rights. He was conservative on law and order. To have the two of them come on the Court together at the same time-that's a very powerful package on the Court.

NARRATOR
Antonin Scalia charmed the Senate and sailed through 98 to zip.

Rehnquist was confirmed by the Senate-but not without breaking his own record for the greatest number of "no" votes.

The senate was voting on supposed ideology. Inside the Court, ideology wasn't the big issue. Rehnquist would do the Chief's job happily and well. He had to be an improvement.
REPORTER
Sir, what will you miss most about being Chief Justice?

WARREN E. BURGER
Really nothing.

POWE
Burger was a ham-handed Chief Justice. He wasn't particularly competent in his opinion writing. It's good to see him go. And no one ever looked back.

DELLINGER
When Rehnquist came in as the new Chief Justice, actually, it was a relief to his colleagues no matter what their ideology was because he ran the Court well. And while we think of the role of the Court in the country, the other justices think of it as their job.

SIMON
Rehnquist had the respect of the other justices. He had a certain intellectual rigor that they appreciated. Secondly, he was quite fair-minded.

HOFFMANN
He was never a believer in the self-importance of the job, very self-deprecating. If people saw him walking they would never imagine that this man was a member of the greatest judicial body in America. They might think he just came out of a bowling alley or a corner pub or something like that.

NARRATOR
Rehnquist didn't care for ceremony. Meetings were quick. He liked a joke. He'd bet you on anything-the amount of snow that would fall that day on Capitol Hill, as measured by the Chief Justice of the United States.

But the Reagan White House didn't make him Chief because he was well liked. They looked to him as the man who could pull the Court to the right. Their revolution could last for twenty years if they could somehow supply their new Chief enough votes for a working majority.

BISKUPIC
In 1990 William Brennan retires. The following year Thurgood Marshall steps down. And this closes off an era. Both of them represented the real liberalism of the Earl Warren time.

COOPER
The retirements represented the possibility of a genuine and potentially sweeping change in the Court's jurisprudence. It was a seismic event to say the least.

NARRATOR
Anthony Kennedy in 1988. David Souter in 1990. Clarence Thomas in 1991. Now there was a clear majority appointed by Presidents Reagan and Bush. The majority the right had been praying for since the sixties. And with this remade court, Rehnquist would lead a revolution . . . just not the one people expected.

REPORTER
The emotional display outside the Supreme Court with pro-choice and pro-life activists facing off with their familiar props and chants and placards, and other spectators so determined to get in to hear the oral arguments they camped out all night in the rain, the display was a sharp contrast to the remarkable lack of emotion inside.

O'CONNOR
The abortion issue had been very difficult for the Court ever since the decision in the 1970s in Roe against Wade. There are a great many in the country who never accepted its holding and Casey put the court right back in the middle of the issue.

PROTESTORS
Choice is life...choice is life....

GILLMAN
The belief was in early '92, that the decision in Roe versus Wade might be overturned. That there might finally be a majority on the Court of Republican appointees who are ready to overturn the Court's precedent in Roe versus Wade.

YOUNG
By the time Casey comes to Court, the question is: Are they going to do what they were put there to do?

LAWYER
I think there are votes on this Court that would take away a fundamental constitutional right. We believe that's an extraordinarily radical step, for the Supreme Court of the United States to bestow a fundamental right and then take it away from the millions of Americans that rely on that right.

GILLMAN
Justice O'Connor becomes a figure of great interest and curiosity because she was one of the justices in the 1980s who began to argue against certain elements of the Roe versus Wade opinion. Her argument had been that as long as there was no undue burden on the woman that you could regulate the abortion decision.

BISKUPIC
You have the remaining liberals. You've got these new conservatives really digging in on the right. And she's able to negotiate at the center which gives her power. She would stand in this pastel suit with her white handbag dangling from her arm seeming so non-threatening. She took advantage of that behind the scenes. She never bullied justices to her position. She sort coaxed them over.

O'CONNOR
Well, one always hopes in crafting opinion for the Court that it will settle the issue for a time at least. Basically, we ended up with a joint opinion, written by me and Justice Kennedy and Justice Souter. I think a reader of the opinion will find that we did not accept the trimester rigid framework of Roe against Wade but basically did not vote to just overturn it outright. Impose we thought or we hoped would be reasonable limitations on the doctrine. And it was very difficult.

KRAMER
It's clearly an effort and an act of judicial statesmanship. The heart of the opinion is, whatever we think about Roe versus Wade, we can't be seen as overturning an option because of political pressure.

O'CONNOR
Prior opinions of the Court become part and parcel of the law, just as much as if Congress had passed a law. And we're bound by that precedent unless a later court determines, based on good reason, that some prior holding must be overturned. It's not something that the Court does lightly and that of course precedent was a very big issue in the Casey decision.

NARRATOR
Rehnquist had lost another abortion case - a dissenter again. Justice Kennedy came to apologize for changing his vote. Rehnquist shrugged it off-"Just get your opinion out in expedient fashion." Win or lose, this was Rehnquist's court. He didn't want it to fall behind.

ROSEN
It's very interesting to compare Rehnquist and Scalia's dissents in the Casey case. Rehnquist is very laconic. He essentially says the majority's gotta decide but I'm not that personally invested in which way it decides. By contrast, Scalia is angry and apocalyptic.

YOUNG
The dissent is almost a judicial primal scream from Scalia, in that you can see the conservative tide cresting just short of the beach. Right, they're one vote short of where they wanted to go, and as it goes back out to sea you get this very, very angry opinion.

NARRATOR
"The Imperial Judiciary lives," Scalia wrote. "It is instructive to compare this Nietzschean vision of us unelected, life-tenured judges-leading a volk who will be 'tested by following,' . . . with the somewhat more modest role envisioned for these lawyers by the Founders."

KRAMER
There's truth to Scalia's statement except it's applicable to Scalia as well, who is no different than any of the others in this. He just has a different set of issues unto which he's willing to speak as the Imperial Judiciary.

POWE
They aren't, in general, a deferring bunch. The trademark of the Rehnquist Court, beginning in Casey, is that 'We are supreme in Constitutional interpretation.' It isn't, as the Warren Court said, 'We make the rules of the game.' The Rehnquist Court thought, 'We are the game.'

NARRATOR
The Chief himself knew which way the wind was blowing-power for a Rehnquist Court could bring back power to the states.

For 22 years, Rehnquist had been fighting federal mandates-civil rights orders, minimum wage laws, racial quotas-as Congress extended its reach into every cranny of the country.

HOWARD
Rehnquist disliked that. He said, "No, the Congress' commerce, power can't be endless, there has to be some limit to it in the interest of federalism and local competence."

GILLMAN
Since the New Deal, the scope of Congress' powers had been pretty much resolved in Supreme Court decision making. The justices had said for fifty years that under the Congress' authority to regulate commerce, if it wants to regulate things, then it's up to Congress to decide how broad that authority should be.

NARRATOR
In 1994, Rehnquist got a case where he could finally draw the line. United States v. Lopez was a challenge to Congress's power to make a federal law against bringing a gun near a school. There was already a state law in place. More to the point-what did keeping guns away from schools have to do with Interstate Commerce?

DELLINGER
The theory on which Congress could regulate it is this: if you have guns in school, it's bad for education. And if kids are badly educated, they're gonna do poorly in the work force, the national economy is gonna suffer-therefore, commerce generally among the states will suffer. That's the theory on which Congress passes it.

KOBYLKA
What the Court does in Lopez is say, by a vote of 5-4, that Congress doesn't have the authority under the Constitution to regulate schools in this way. If this is to be regulated, it is to be regulated by states.

HOWARD
This was the first time in sixty years that the Court had limited Congress's commerce power. I had taught generations of law students that they would never live to see the day when the Court said Congress has any limit to its commerce power. Well they did. Very embarrassing to me because I had to go tell my students, "I lied to you. They did what I told you they would never do."

GILLMAN
It was one of the great and important constitutional revolutions since the New Deal, and it was led by Chief Justice Rehnquist.

NARRATOR
But this didn't look like the Revolution the Right had intended. So far, the Rehnquist Court hadn't outlawed abortion, hadn't attacked obscenity or put prayer back into the public schools. They hadn't even rolled back one of the most reviled of the Warren Court decisions: the Miranda warnings-the very notion of telling cops what to say.

The Rehnquist Court had a chance to wipe out Miranda in the year 2000, in Dickerson versus United States. Congress itself had enacted legislation that seemed to overrule the Miranda decision. The Supreme Court could simply uphold the legislation.

REPORTER
Police have been reading criminals suspects their Miranda rights since 1966. But today, the Supreme Court considered a case that might make reading those rights an option, not a requirement.

DELLINGER
William Rehnquist hated Miranda, hated the Miranda rights, thought the Court had no business imposing those rules on the police.

HOWARD
If one reads Miranda, it's not clear whether it comes out of the Constitution, or whether it's simply something which the Court has created as a Court-made remedy.

KOBYLKA
Rehnquist, throughout the 70s in his Lone Ranger days, was more than happy to say Miranda is not a Constitutional decision. It should be reversed. So Dickerson comes to the Court, Miranda's gotta go, the logic would be.

ROBERTS
I do think there's a special responsibility that comes with being the Chief to look out for the institutional stability, security and prerogatives of the Court. And I'd be surprised if Justice Rehnquist's view on a number of areas didn't change when he moved from as associate justice to being the Chief Justice. I suppose that perhaps the clearest example of that was his opinion in the in the Dickerson case.

KOBYLKA
Miranda stays by a vote of 7-2, and it stays with one -time critic, William Rehnquist, writing the majority opinion, in saying, "Not only is Miranda sound precedent, but Miranda is correct. The Constitution requires police to read criminal suspects their rights."

KRAMER
Maybe Miranda should be overturned, but if it's to be overturned it's gotta be us and not Congress. So actually, the opinion he writes is one about judicial supremacy, which is, "Congress has no business telling us what the Constitution should be interpreted to mean, and so this law can't do it."

NARRATOR
This was the full flower of the Rehnquist Court. It wasn't a social counterrevolution. It was a revolution in the power of the Court itself.

ROSEN
The overwhelming characteristic of the Rehnquist Court is confidence-self-confidence that we the Court are able and ready to resolve all the most contested questions of national life.

NARRATOR
The Rehnquist Court drew the line on abortion, on affirmative action, on criminal procedure, and on the power of Congress. Most important, on the subject of what the Constitution allowed, this Court made sure no one else could draw the line.

And for the most part, the nation approved. In the year 2000, eighty-five percent of the U.S. public expressed confidence in the Supreme Court.

Rehnquist and his Court would put that public confidence on the line.

DAN RATHER
Florida today began an official vote recount. Bush leads Gore in the state by just a minuscule percentage, now down to about 1,400 votes total. Whoever wins Florida will pick up 25 electoral votes, topping the 270 needed to be elected President.

REPORTER
The shouting may have subsided now, after the most contentious, some say, most suspect presidential election in history, but the battle goes on.

CROWD
Revote...Revote...Revote....

REPORTER
Thousands of people in Palm Beach are asking for another chance to vote in this election.

BYSTANDER
If you voted, you lost. Give it up.

REPORTER
At issue - the ballot.

GILLMAN
We think of presidential elections as kind of national elections but actually each presidential election is an election made in each individual state about how that state is gonna choose its presidential electors. And the assumption was that this is a matter for state law. They make the final decision.

YOUNG
The one prediction that I was willing to make to my students at the time was that the Supreme Court will never take this case -- never touch it in a million years. And boy was I wrong about that.

MARK FOLEY
Everybody has a different impression of what's a vote. One says it's a dimple, one says it's a pimple, one says its a pregnant, one says it's a hanging door. So the chad, as it's become known, is probably the most misunderstood terminology in America.

HOWARD
The justices took a look at what was happening and said, "You know, this is awful. This is a mess. Somebody has to clean this up. Who better than us? The people trust us. We could bring this to a halt.'"

KOBYLKA
Given the institutional authority of the Court, and the generally high regard with which is held, Rehnquist's perception is, "The Court can do this-it's a short, sharp shock. You go in knowing that this is gonna be a one-of-a-kind experience, and you end the trauma." And that may have been the logic of it. But notice that's not a legal logic; it's a political logic.

NARRATOR
In fact, when the Rehnquist Court accepted the petition for review, it ripped the case right out of the hands of the Supreme Court of Florida.

FLORIDA COURT JUDGE
We'll here argument now on number OO949, George W. Bush and Richard Chaney versus Albert Gore et al.

KOBYLKA
The people who usually argue for states' right-Rehnquist, Scalia, O'Connor, Kennedy, and Thomas-are in the majority imposing on the State of Florida.

ROSEN
Bush v. Gore said to the Florida Supreme Court, "Court, you have changed the counting standard in the middle of the election. Therefore, a manual recount has to stop."

HOWARD
Notwithstanding their usual view that state courts had competency to read state constitutions, so they stepped in, they slapped down the Florida Supreme Court. Now there's an act of self-confidence. There's a Court that believes it knows where it's at, it knows who's got the final answer, and is willing to tell the country as much.

DELLINGER
It is an extraordinary statement of the of the esteem in which the Supreme Court is held that the Court could decide a very disputed presidential election in a very disputed way and yet a few months later the Court's reputation is as strong and the esteem in which its held is as high as it ever was.

HOWARD
When polls were taken, the question was put, "Do you think the Court was being partisan?" The majority of people said yes. But interestingly enough, people trust the court. So there's an ability of people to entertain two conflicting views: Bush vs. Gore is partisan, but we trust the Supreme Court.

NARRATOR
Rehnquist gave most of his life to the Court. In almost two decades as its Chief, he was its protector, as had been all the great Chief Justices, back to John Marshall.

When Rehnquist died as Chief in 2005, people talked about him as an unassuming man. Friends recalled his addition of gold stripes to his robe as a whimsy inspired by light opera. He eschewed real drama. He didn't seek the limelight. But he left the Court with an authority that it didn't have when he came.

HOWARD
Isn't that interesting that here's William Rehnquist, who comes to the Supreme Court in 1972, appearing to represent a point of view that wishes to curb and curtail judicial power, who then many years later is among those who joins the majority in Bush versus Gore, which may well be as activist opinion as a modern Supreme Court has handed down. I'm not sure the Warren Court would have taken Bush versus Gore. I think we're going to look back on the Rehnquist Court as having been one of those truly historic, discernable chapters in the Court's history.

BISKUPIC
He would have loved to have seen Roe versus Wade overturned. He would have loved to have seen prayer in school. He would have wanted to see more movement in terms of social issues to reverse the legacy of Earl Warren. He didn't get that. But he did get other things.

DELLINGER
William Rehnquist will go down as one of the most influential Chief Justices in history and really for two reasons. He brought back the states as central players in American constitutionalism and required Congress to defer to them. And he was quick to assert judicial supremacy and was quite confident in having the Court decide contested constitutional issues, even if that meant setting aside a large number of acts of Congress or acts of state legislatures or actions taken by the President. His was a strong, muscular view of the role of the Supreme Court.

GILLMAN
We've come a long way since Marbury versus Madison, when Justice Marshall very gingerly tried to suggest that the Jefferson Administration wasn't doing the right job. It's a Court that has developed enormous power and enormous prestige in the political system.

SIMON
The Supreme Court of the United States is the most powerful judicial tribunal in the world. It tells us what the relationship of the co-equal branches of the federal government are, and what the relationship of the federal government to the states are, and what the relationship of government is to individual rights and liberties. Well, that's a very broad mandate.

ALLEN
The Court is no longer timid. Both the Left and the Right on the Court are activists, if by that you mean judges who see their central role as deciding the hard questions that are facing American society. I don't see any tendency to hold back.

KRAMER
Today the Court stands, you know, as a huge institution at the center of American politics. And whether that's a good or a bad thing is a question that people really oughta think about.

ROBERTS
The legitimacy and the acceptance of what the Court does depends upon how people view the institution. The Court is always vulnerable and has been throughout its history. And I think justices, myself and others, should view ourselves as trustees of an extremely valuable institution that has built up over the centuries and has served the country very well in ensuring the rule of law and has the ability to reach unpopular decisions that will nonetheless be followed.



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