Censors could always count not only on a vote from William Rehnquist, but also on a significant intellectual and political punch. From taking his seat as an associate justice in 1972, and then as Chief Justice after his 1986 appointment, until his recent death, Rehnquist was Ground Zero of the conservative wing of the Court. Presently, regardless of whether litigation involves obscenity or another type of speech regulation, First Amendment attorneys can always figure that a Rehnquist opinion will be the centerpiece of the opposing brief.
A native of a wealthy suburb of Milwaukee, Rehnquist was an honor student throughout a stellar academic career: Phi Beta Kappa at Stanford undergrad; graduate degrees from Stanford and Harvard; and at Stanford Law, Coif and first in his class (Sandra Day O'Connor was third). He was given the ultimate reward for a top law grad – a clerkship under a Supreme Court Justice, in his case Justice Robert L. Jackson.
A decade of private law practice in Phoenix was steeped in conservative, Republican political involvement, ultimately landing him in the Nixon Administration, both as a top honcho at Nixon Justice and in the White House. Nixon rewarded him with the ultimate token of gratitude, a Supreme Court appointment. Rehnquist's fourteen-plus years of shaping the Court with a blizzard of ultra-conservative opinions was again rewarded by President Ronald Reagan, who elevated Rehnquist to Chief Justice of the United States.
As is the case with many who reach prominence, Rehnquist's shot at the Supreme Court may not have happened but for accidents of history. The first one was a shot fired by Sirhan Sirhan on June 2, 1968 at the Ambassador Hotel in Los Angeles.
The American political scene in 1968 was chaotic. Lyndon Johnson was eligible for re-election, and was assumed to be the shoe-in Democratic candidate. But because Vietnam and other problems brought Johnson under fire, anti-war candidate and Minnesota Senator Eugene McCarthy mounted a surprising challenge to Johnson's candidacy, nearly defeating Johnson in the March 12, 1968, New Hampshire primary. Four days later, Robert Kennedy announced his candidacy for the Democratic nomination. Four weeks after that, President Johnson shocked the nation – including his own speech writers – by adding a paragraph to an evening, national television address, withdrawing his name from consideration for another term. Two months later, after winning California's and other Democratic primaries, Robert Kennedy was considered the odds-on favorite for the Democratic nomination, and likely the presidential election, until his assassination at the Ambassador Hotel. The far-less-popular Hubert Humphrey was nominated at the incendiary 1968 Democratic Convention in Chicago, but lost the election to Richard Nixon. Had Robert Kennedy been elected president in 1968, the shape of the 1970s Supreme Court would have been profoundly different from what transpired.
Nixon ran on a law-and-order campaign (read: order), promising to appoint "strict constructionists" to the Supreme Court. He took office on January 20, 1969, amidst a Supreme Court whirlwind. And Rehnquist found his way to the Supreme Court only after another series of unlikely events.
In 1968, Chief Justice Earl Warren announced that he would retire upon the confirmation of his successor. President Johnson nominated Associate Justice Abe Fortas (a 1965 Johnson appointee) as a successor. During Fortas' confirmation process, the fact that he was receiving a $20,000 annual stipend from a controversial source caused such a firestorm of controversy that he resigned from the Court altogether. Nixon then had two vacancies to fill, but his two attempts to fill Fortas' seat with a Southerner – first Judge Clement F. Haynsworth, Jr., of South Carolina and then Judge G. Harrold Carswell, of Florida – were beaten back by the Senate (the first time seriatim nominations had been rejected in over 75 years). Choices Three and Four were the so-called Minnesota Twins, Chief Justice Warren Burger and Justice Harry Blackmun. They were confirmed.
The retirement of Associate Justices Black and Harlan (both of which died shortly thereafter) opened two more positions for Nixon to fill with "strict constructionists;" and on October 21, 1971, Nixon nominated Rehnquist along with Lewis Powell to fill those seats. After a presidential election likely decided by an assassination, and then the improbable Fortas scandal, and then two bounced nominees thanks to a president determined to put a Southerner on the Court combined with a Democratic Senate that would not tolerate it, Rehnquist was one of the last two of Nixon's "strict constructionists."
Nixon's four appointees, along with Associate Justice Byron White – ironically, a Kennedy appointee – delivered the five votes supporting the Miller quintet of decisions on June 21, 1973, squarely resolving the obscenity issue in favor of censorship. The dissenting opinion, delivered by Justice William Brennan, is said to have originally captured a majority; but Chief Justice Burger reportedly turned the Court around.
In 1957, Justice William Brennan had penned the opinion deciding that obscenity was not protected by the First Amendment, but advising caution:
"The fundamental freedom of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest." Roth v. United States, 354 U.S. 476, 488 (1957).
Justice Brennan admitted the error of his ways in his dissenting opinion in the Miller Quintet, sixteen years later:
"I am convinced that the approach initiated 16 years ago in Roth v. United States . . . and culminating in the Court's decision today, cannot bring stability to this area of the law without jeopardizing fundamental First Amendment values, and I have concluded that the time has come to make a significant departure from that approach." Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73-74 (1973) (Brennan, J., dissenting).
When Associate Justice Rehnquist first put pen to paper on the obscenity issue, disaster struck. Bill Hamling – one of the pioneers in this industry – brought his obscenity conviction to the Supreme Court, and much was at stake. This was the case that would test Miller, with First Amendment pioneer Stanley Fleishman advancing many of the defenses that he and other First Amendment attorneys of his generation had developed in light of Miller. Justice Brennan's "ceaseless vigilance" was supplanted with Justice Rehnquist's "play in the joints." According to Justice Rehnquist's opinion, a trial judge could reject most any community-standards evidence that did not seem appropriate; obscenity was pretty much up to the jury; and the jury could be selected at the trial judge's discretion. The opinion turned Miller on its head, gutting the ability to enlighten a jury as to the reality of community standards. Hamling v. United States, 418 U.S. 87 (1974).
Then came Renton, a case that garnered a solid majority of the Court upholding a zoning ordinance (which until then was subject to the confusing plurality opinion in the 1976 Young v. American Mini-Theatres case). Renton was a classic Rehnquist opinion. It seemed harmless. After all, the issue in the case supposedly was only whether one city could borrow another city's study to justify an adult zoning ordinance. Soon-to-be Chief Justice Rehnquist seized upon the case to create a typical Rehnquist mine field. According to the opinion, over five percent of Renton was available for adult theaters, land consisting of "ample, accessible real estate, including acreage in all stages of development from raw land to developed, industrial, warehouse, office and shopping space that is criss-crossed by freeways, highways and roads." How could that create a threat to free speech? Well, it could and it did, because Rehnquist's opinion was written so broadly that it not only opened the gates for many, horrible zoning opinions; it also justified operating regulations ranging from "10-foot" rules to open-arcade-booth regulations to hours-of-operation limitations. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
A third example of Chief Justice Rehnquist executing his agenda is found in the Alexander case, upholding the forfeiture of Ferris Alexander's entire Minnesota adult-bookstore empire as a consequence of a handful of obscenity findings. The question was whether that state of affairs constituted an unlawful prior restraint. Reading the chief justice's majority opinion reveals a masterful job of tweaking precedents so that his arguably principled opinion supports the result. Alexander v. United States, 509 U.S. 544 (1993).
Hamling, Renton and Alexander are three examples of how Justice – later Chief Justice – Rehnquist crafted opinions that contained time bombs, which would be cited in support of strong governmental power against constitutional rights of the citizenry. He plainly always believed that government could be trusted, and that there was nothing wrong with allowing a strong government to command an orderly society. In the First Amendment area, that meant trusting government to regulate speech. While Chief Justice Rehnquist never went so far as has Justice Scalia – making clear his opinion that erotica is not at all protected by the First Amendment – one wonders whether Rehnquist's failure to embrace that approach was based only upon his belief that it could never muster the support of a majority of the Court.
Editor's Note: After DeWitt wrote his initial piece, Bush nominated Roberts to be Chief Justice. DeWitt offered the following thoughts on that development:
President Bush's nomination of Judge John Roberts for Chief Justice did not particularly surprise me, for a number of reasons. First, almost everyone (including me) expected that Chief Justice Rehnquist would retire at the conclusion of the 2004 term. The White House certainly was doing significant leg work with that expectation. I suspect that Judge Roberts was initially earmarked for the chief justice position (and that's "Chief Justice of the United States", not "Chief Justice of the Supreme Court," as most of the media denominates the office). Judge Roberts then was nominated for associate justice after Justice O'Connor's surprise retirement and Chief Justice Rehnquist's equally surprising announcement that he would not step down. They may have planned to nominate him for elevation to Chief Justice once Chief Justice did step down. Second, remember that Justice O'Connor's retirement is effective upon confirmation of her successor. Thus, she will continue to sit on the court. The first Monday in October is less than four weeks away, and I think the White House sees filling the Chief Justice vacancy most pressing.
In one sense, I am relieved. Some of the names that have been kicked around are really scary.
The hurricane has been a political disaster for the administration. I just don't think the president currently is in a position where he can nominate a super conservative, launching a political bloodbath in the Senate.
(Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. He can be reached through AVN's offices, or at [email protected].)
