The Late Supreme Court Chief Who Haunts Today’s Right-Wing Justices

On a balmy day in November 1962, a Republican activist set up shop in a poor precinct in South Phoenix. He wasn’t there to vote or volunteer with the nonpartisan poll workers. He came to harass Black voters. The man—who was white and tall—quizzed would-be voters about their backgrounds and demanded they recite the Constitution to him. “You are not able to read, are you?” he reportedly asked Black people as they queued up to vote outside an elementary school. “You have no business being in this line trying to vote. I would ask you to leave.”

Multiple witnesses identified the rangy man as William Rehnquist. In 1962, that name didn’t carry much weight beyond the arid desert town yet to boom from an influx of industry and affordable air conditioning. Phoenix politicos saw him as a partisan gadfly, not a powerbroker. Local civil rights activists had long complained about his obnoxious buzzing, which came in his election-day visits to minority neighborhoods and his obstreperous opposition to desegregation laws. (Rehnquist once ranted that a modest local proposal to ban racial discrimination by public-facing businesses was a “drastic” “assault” on “a man’s private property” and “the historic right of the owner of a drug store, lunch counter or theater to choose his own customers.”) He was, a leader in the Arizona NAACP noted, “the only major person of stature in the state who opposed the Arizona civil rights bill,” his legal pedigree and polish standing out in the morass of cranks, Birchers, and avowed racists who advocated for keeping segregation legal.  

In less than a decade, Rehnquist would go from a local antagonist to a conservative avatar on the Supreme Court. From his lofty perch as a justice (and later, chief justice), he led a swashbuckling counterrevolution against the equality vision of the liberal Warren court. He would reshape the Constitution that he once wielded as a weapon of voter suppression, bolstering states’ rights at the expense of individual liberties. 

With the Supreme Court back in session, Rehnquist’s legacy looms over the conservative majority. Perhaps more than any other figure, he embodies the fervor and tensions of the Roberts court. Today’s Republican-appointed justices share similar allegiances: to a lost Constitution, unmarred by the reforms of Reconstruction, the New Deal, and the Warren court; to the Republican Party and its situational needs; to a muscular and unapologetic judiciary that imposes conservative change on the country.  

They also grapple with the same challenge that haunted Rehnquist: how to impose that change in a form and language the country can tolerate. On the bench, Rehnquist could be a hard-charging ideologue, the vote-suppressing Republican operative never far from the surface. Yet he was also a tactician who could temper his zeal to lurch law right because of the larger cultural, political, and social web surrounding the court. His jurisprudence, considered in its totality, was riddled with conflict, caught between advancing an ultraconservative agenda and recognizing that his agenda sometimes had to give way to the public’s values, America’s constitutional tradition, and the legal profession’s conventions.

The modern Republican appointees inherit Rehnquist’s doctrine and dissonance. In many cases, they are indifferent to the dynamic between the court and the broader constitutional culture, steamrolling through precedents and norms to reach desired outcomes. In others, they pull back, battling among themselves about how big and fast their moves should be. Some of the conservatives recognize the precariousness of the court’s position in the broader political landscape and the importance of attending to this dynamic, or at least the public perception of doing so. Some lack this sensitivity, and others still shift between these camps on a case-by-case basis. The internal conflicts and contradictions of an individual are now those of an institution.

It is no wonder, then, that the court’s six conservatives are practically in competition over how many times they can cite Rehnquist in their opinions—including some of the most consequential ones, such as the Dobbs decision overturning Roe v. Wade. In that sense, Rehnquist’s shadow doesn’t just loom over the justices; it looms over all of us. And revisiting his legacy in the context of today’s right-wing court could provide clues about where our country is headed.

Rehnquist’s judicial philosophy was eloquently summarized in a 1982 essay in The New Republic by Yale Law professor Owen Fiss and political columnist Charles Krauthammer. They argued Rehnquist—now a decade on the court, though still four years away from becoming chief justice—had a “constitutional program” aimed at “free[ing] the states from the restrictions of the national Constitution, particularly those emanating from the Civil War Amendments and the Bill of Rights.” This program had a clear political valence. By transferring power to the states, diminishing Congress’s authority, and curtailing the rights of racial minorities, the poor, and prisoners, it closely mirrored President Ronald Reagan’s “new federalism.” These ideas—and Rehnquist’s willingness to express them through lonely dissents—made him a “hero to conservatives.” But Fiss and Krauthammer argued his program was more subversive than conservative, “a revisionist of a particular ideological bent.”

A generation of conservatives soon embraced this ideological bent. Rehnquist hired future luminaries like Senator Ted Cruz and Chief Justice John Roberts to be his law clerks, helping to shape their views and vault them into the stratosphere of law and politics. “Rehnquist reinforced John’s preexisting philosophies,” recalled Paul Smith, a lawyer who clerked for Justice Lewis Powell the same term as Roberts clerked for Rehnquist. “John was not a believer in the courts giving rights to minorities and the downtrodden. That was the basic Rehnquist philosophy.” Rehnquist inspired others from afar. Justice Brett Kavanaugh has called Rehnquist his “first judicial hero,” while Justice Samuel Alito has cited him as one of his favorite justices.

Rehnquist made much of his constitutional program into national precedent. He led the court in curbing the habeas rights of prisoners and expanding police powers, allowing officers greater leeway in searches and limiting ways to hold them accountable for violating constitutional rights. His relentless push for state sovereignty structurally changed the relationship between the states and the federal government—a constitutional revolution his epigones would build on. (Roberts would consciously draw on Rehnquist’s federalism ideas in his opinions gutting the Affordable Care Act’s Medicaid expansion and a heart of the Voting Rights Act.) Yet some goals remained elusive, often thwarted by Justice Anthony Kennedy’s old-school Republican stance on social issues like abortion and affirmative action.

The late 1980s and 1990s revealed an unexpected evolution. Upon becoming chief justice in 1986, Rehnquist seemed to absorb the role’s institutional weight. His approach grew more nuanced and pragmatic, though his core beliefs remained intact. The court’s onetime conservative edge found himself outflanked by Justices Antonin Scalia and Clarence Thomas.

Consider the 1996 case of United States v. Virginia. Justice Ruth Bader Ginsburg, writing for the majority of the court, mandated women’s admission to Virginia’s military academy; Scalia, dissenting for himself, wrote an elegy for patriarchy, lamenting the death of “manly honor.” Rehnquist chose a middle path. By concurring in the result, but not reasoning, of Ginsburg’s majority opinion, he preserved existing precedents on women’s equality that had strong public support while resisting their expansion—a characteristic late-career balance between principle and pragmatism.

This institutional awareness could yield surprising outcomes. Despite years of limiting protections for criminal suspects, Rehnquist declined to overturn Miranda v. Arizona in 2000’s Dickerson v. United States. Writing for all but Scalia and Thomas, he acknowledged Miranda’s flaws but deemed the precedent, which created a constitutional requirement that law enforcement inform suspects of their rights to remain silent and to have an attorney during interrogations, to be “part of our national culture.” The opinion reflected less an embrace of Miranda than a pragmatic defense of court authority—marking how far the onetime Phoenix poll watcher had come.

When Rehnquist died in 2005, his former clerk, John Roberts, replaced him as chief justice. This falls marks Roberts’s twentieth term atop the court, which has become a profoundly different institution under his leadership. Since Rehnquist often lacked a court majority backing his most radical views, his solo opinions could be intellectually daring. Today, the court’s conservatives command such a majority but lack his intellectual imagination and vigor. They struggle particularly with what Fiss and Krauthammer identified as originalism’s core challenge: the “epistemological and evidentiary problems” of using 1787 as an interpretive guide for modern questions.

The legal right’s triumphs have also opened the door for new causes to animate conservatism. Rehnquist’s vaunted federalism revolution had already remade American government by the time Roberts took over; two decades later, Roe, affirmative action, and the Voting Rights Act lie in ruins. With the proverbial dog having caught the constitutional car, Rehnquist’s federalism revolution has given way to an entirely different campaign. His “radical view of state autonomy” sought to “impos[e] strict limits on the powers of the federal courts and Congress,” to quote Fiss and Krauthammer, originating in backlash to the desegregation struggles and egalitarianism of the Warren court and Congress in the civil rights era. The new conservatives came of legal age when courts were already retreating from that vision. Rather than impose strict limits on the judiciary, the modern conservatives tear them down, knowing federal courts have become bastions of conservative power. The most striking example of these judicial power grabs came in June in Loper Bright Enterprises v. Raimondo, when the court’s conservatives overturned Chevron v. NRDC, a unanimous decision from Rehnquist’s tenure that checked federal courts’ powers to supplant federal agencies’ reasonable interpretations of ambiguous statutes with their own.

The titanic clashes between the court’s conservative wing and Congress that characterized the Rehnquist era have receded from the docket. While the conservative majority still curtails congressional power, the governmental branch they primarily fight with is the executive, particularly Democratic administrations operating through federal agencies. Congress, once a formidable opponent, has been hobbled by polarization, byzantine procedural rules, calcified institutional design, and the obstructionist playbook of the post-Gingrich GOP. At the same time, the conservative banner of states’ rights has lost some of its luster. The court’s right-leaning justices regularly undercut the autonomy of progressive states like California, invalidating their attempts to enact laws addressing pollution, discrimination, gun violence, forced arbitration, and labor conditions.

The cultural conversation around the Supreme Court has also shifted. Many liberals—sometimes deliberately, but often unthinkingly—have responded to the court’s sharp rightward turn by echoing the right’s past critiques of the court, denouncing “judicial activism” and overreach. Simultaneously, many conservatives embrace a dated liberal vocabulary that portrays courts as noble defenders of rights. This role reversal appears in the justices’ own rhetoric: Justice Elena Kagan’s dissents channel Scalia’s style in warning against “black-robed rulers,” while Kavanaugh invokes the Warren court and Brown v. Board of Education to defend decisions that actually erode their legacy.

Even as the court’s conservatives navigate a world unlike Rehnquist’s, his influence is everywhere. Take the craft of Supreme Court opinions. He viewed opinions not as isolated case resolutions but as moves in a longer constitutional chess game. As Fiss and Krauthammer observed, Rehnquist would embed “apparently inconsequential statements” in one opinion, only to leverage them later—manufacturing “his own precedents out of asides.” Today’s conservatives have embraced this playbook, using similar two-step maneuvers to dismantle public sector unions, affirmative action, administrative authority, and voting rights protections. This year, Kagan’s patience with this long-game strategy had worn thin. Her Loper Bright dissent explicitly called out this “kind of self-help on the way to reversing precedent” as “almost routine at this Court.”

Rehnquist’s treatment of facts and precedent could cross into intellectual dishonesty. Fiss and Krauthammer criticized his tendency to “manipulate trial records,” misstate facts, and circumvent unwanted precedent through distortion rather than direct overruling. Today’s conservatives have refined these dark arts. In Kennedy v. Bremerton School District (2022), Justice Neil Gorsuch characterized a football coach’s public, disruptive prayer sessions as “private” and “quiet,” despite clear video evidence to the contrary. Similarly, he claimed to apply existing First Amendment doctrine while substantially revising it. This cynical distortion of precedent, which I call a “stealth reversal” in my academic scholarship, is now a Roberts court hallmark.

Rehnquist’s writing style was concise and cogent, largely free of cumbersome legalese. Many of today’s justices have tried to emulate his incisive approach, with varying degrees of success. Roberts has most effectively captured both Rehnquist’s clarity and his quirks, like supplanting analysis with epigrams. Both justices used rhetorical flourishes to present their reasoning as restrained, even when the import of their decisions were far-reaching. Roberts’s concurring opinion in Dobbs v. Jackson Women’s Health Organization embodies this Rehnquistese. Roberts deploys a clever turn of phrase (“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more”) to cloak his desired rollback of reproductive rights in the guise of judicial minimalism.  

Rehnquist’s more significant influence lies in substance rather than style. Today’s conservative justices embrace his aggressive and covetous understanding of the court’s role within American constitutional democracy. They share many of his core judicial values, including the belief, as noted by Fiss and Krauthammer, that the Constitution’s primary purpose is to protect the rights and expectations of property holders. Since Justice Amy Coney Barrett joined the high bench in 2020, they rely on Rehnquist everywhere. In opinions that attracted all six of their votes, the conservatives have used his ideas and opinions to expedite executions, strengthen property rights, dismantle environmental and financial regulations, ban race-based affirmative action in college admissions, limit lawsuits against federal officials seeking money for constitutional violations, and undercut Black voters’ rights and political power.  

But competing factions on the court’s right implement different aspects of Rehnquist’s complicated legacy. Thomas, Alito, and Gorsuch channel the fiery and ambitious strains of his early years on and off the bench. Roberts and Kavanaugh consciously connect themselves to his institutional stewardship, projecting concern for the court’s reputation even as their actions often belie this professed commitment. Barrett is most attuned to the growing disconnect between the court and public sentiment that weighed on Rehnquist, though her voting record consistently aligns with her conservative colleagues.

Start with the case that is most responsible for the growing disconnect: Dobbs. Alito’s opinion overturning Roe is a simulacrum of Rehnquist’s dissent in Planned Parenthood v. Casey (1992), which reaffirmed Roe’s essential holding while allowing for some state restrictions on abortion. Praising Rehnquist’s “prescient diagnosis” and “apt” observations, Alito’s opinion cites Rehnquist’s Casey dissent an astonishing six times, underscoring its jurisprudential lineage with the subtlety of a sledgehammer. Alito echoes many more of Casey dissent’s arguments without attribution, while managing to trade some of Rehnquist’s intellectual gravitas for culture war grievance.

In Dobbs, Alito also employs a classic Rehnquist tactic—distorting precedent—to twist a precedent ironically written by Rehnquist himself. Throughout his majority opinion, Alito frequently cites Washington v. Glucksberg, a 1997 decision authored by Rehnquist that held a ban on physician-assisted suicide did not violate the Fourteenth Amendment’s Due Process Clause. Alito invokes Glucksberg to argue that the Fourteenth Amendment’s protection of liberty does not extend to abortion. Yet unlike his ersatz rendition of Rehnquist’s Casey dissent, Alito’s treatment of Rehnquist’s Glucksberg opinion is disingenuous. He claims to apply the precedent while crafting a new legal test that contradicts long-standing interpretations of the Due Process Clause’s liberty protections before and after Glucksberg. Rehnquist serves as both muse and mirage: always revered, but reimagined when convenient.

Alito, Thomas, and Gorsuch show scant regard for the public’s constitutional beliefs and values. They are comfortable changing the law through fiat. In contrast, Roberts and Kavanaugh signal that they care about what the public thinks, or at least that they care what the public thinks about the court. Kavanaugh regularly pens concurrences to blockbuster conservative opinions that add little substance but try to soothe public alarm about the scope and speed of conservative-imposed change. These concurrences often invoke Rehnquist, seemingly to connect the current court’s jurisprudence to an era of greater public trust in the institution. Kavanaugh’s concurrence in Dobbs cites two Rehnquist opinions and two Rehnquist dissents; his concurrence in United States v. Rahimi, a gun case decided in June, elevates a law review article Rehnquist wrote to quasi-precedential status. This calculated homage presents the court’s rightward lurch as natural evolution rather than judicial revolution.

While Roberts and Kavanaugh project certain messages to the public, their maneuvering within the court is even more strategic. Like Rehnquist before them, they know when to moderate ideological impulses to maintain influence and build consensus. As long as the court maintains its rightward trajectory, they remain flexible on specifics—echoing Rehnquist’s approach, as chief justice, of prioritizing broad direction over doctrinal rigidity. In contrast, Alito, Thomas, and Gorsuch often sacrifice influence in pursuit of ideological purity.

Alito’s inflexibility became particularly evident in June. His overreach cost him majority opinions in two First Amendment cases, Moody v. NetChoice and Gonzalez v. Trevino, when his draft opinions reportedly alienated initial allies. In Fisher v. United States, Roberts initially assigned Alito to write for the majority regarding Capitol riot prosecutions but reassigned it to himself after reports emerged of Alito flying an upside-down flag associated with the rioters. A fourth case, Moyle v. United States—involving Idaho’s denial of emergency abortions needed to protect women’s health—was curiously dismissed just nine weeks after the court heard argument in it, suggesting another Alito misfire. Linda Greenhouse persuasively argues that Alito likely orchestrated the irregular grant of review, only to alienate fellow conservatives with an inflammatory draft. (In all four cases, Alito aligned with Thomas and Gorsuch; in Moyle and Moody, this trio stood against Roberts, Kavanaugh, and Barrett).

Barrett is the most interesting of them all. She is deeply conservative. Without qualification, she joined the court’s hard-right opinions in Dobbs, Bremerton, and Loper Bright. But she’s shown a sensitivity to the public’s constitutional convictions and, at times, has been willing to apply the brakes on the conservative juggernaut in ways Roberts and Kavanaugh have not. This past term, she dissented from her conservative colleagues in Fisher and a case striking down a Biden administration’s plan to limit a hazardous air pollutant; questioned Thomas’s slash-and-burn theory of originalism in a concurrence; and declined to join the most sweeping sections of Roberts’s opinion bestowing immunity on former President Donald Trump from prosecution.

This intellectual independence stems, in part, from Barrett’s background as a law professor. But it also strategic, intentionally conveying messages to the public about the Roberts court’s institutional integrity. A vivid illustration came this spring, when Barrett declined to fully join Roberts’s majority in Trump v. Anderson, which restored Trump to the Colorado ballot in the face of disqualification efforts based on the Fourteenth Amendment. She writes that she agrees with her conservative colleagues’ bottom line but objects to the breadth of their opinion. She also distances herself from the court’s liberals, whose harsh criticisms of the majority opinion, Barrett says, “amplify disagreement with stridency” and “turn the national temperature” up. She then tries to transcend the legal debate occurring among the justices. Stressing that the differences on the court are “far less important than our unanimity,” she speaks explicitly to the American public: “All nine Justices agree on the outcome of this case. That is the message Americans should take home.”

Barrett’s direct appeal to the American people reveals a shrewd awareness of the court’s fragility in today’s polarized landscape. By breaking the fourth wall that separates legal opinions from the public, she recognizes the court’s power stems not just from legal authority but from a more intangible public trust. Her “message” emphasizing consensus and downplaying ideological rifts aims to restore dwindling public faith in a court as neutral legal body. She skillfully conveys this “message” in a concurrence that separates her from the other Republican appointees, the form of her writing reinforcing a larger point about the court’s legitimacy and her own autonomy. The very act of writing her “message” suggests that justices cannot fully isolate themselves from broader constitutional culture by retreating behind a veil of judicial detachment. Rehnquist once made a similar point, saying the justices could not separate themselves from public opinion: “We are not able to do so, and it would probably be unwise to try.” Barrett appears willing to break ranks and soften edges, not out of moderation but to wisely try to preserve the court’s institutional power.

Today’s Republican Party bears little resemblance to the one Rehnquist knew, having morphed into a populist, personality-driven version of its former self. Yet perhaps the strongest connection between Rehnquist and modern conservatives is their shared readiness to deploy the court’s power to advance GOP electoral interests. Rehnquist’s early partisan instincts from Arizona emerged most clearly in his election-related decisions, a pattern today’s conservative justices have amplified.

Consider one such case from Arizona in 2021, Brnovich v. Democratic National Committee. In validating Republican-crafted rules that suppressed minority voter turnout, Alito and his conservative colleagues gutted one of the Voting Rights Act’s few remaining tools for challenging discriminatory practices in federal court. His opinion notably drew from a Rehnquist dissent in Mississippi Republican Committee v. Brooks (1984), resurrecting a restrictive reading of the law previously rejected by the court.

The modern court’s conservatives also mirror Rehnquist’s crucial role during Florida’s contested 2000 election. Working largely behind the scenes, he navigated political turbulence and unified fractious conservative justices to secure Bush’s victory. As legal philosopher Ronald Dworkin observed, Rehnquist’s interventions “stopped the democratic process in its tracks,” first by halting an ongoing statewide recount and then declaring in Bush v. Gore that time had run out for the recount to continue. In their rush to crown Bush, the conservative justices abandoned not only general legal principles but several of Rehnquist’s own long-held positions on federalism, procedure, and equal protection. While serious legal scholars largely viewed Bush v. Gore as an embarrassment, today’s conservative justices see it differently—notably, Roberts, Kavanaugh, and Barrett all worked on Bush’s Florida legal team. In election cases before the court, Kavanaugh, Gorsuch, Thomas, and Alito have approvingly cited the ruling and Rehnquist’s separate writing in the case. The decision’s true legacy isn’t any particular legal doctrine but rather an attitude: conservative justices positioning themselves as democracy’s ultimate referees. 

Like Rehnquist, today’s court adapts to shifting GOP priorities. His evolution from libertarian-leaning conservative to religious right ally parallels the modern court’s fluid relationship with Trump. When it serves Republican interests, they bolster Trump; when it doesn’t, they distance themselves. After the 2020 election, most conservative justices rejected Trump’s attempts to overturn the results. By then, Biden’s victory was clear and Trump, at a political nadir, had become a liability to the conservative movement. The court preserved its capital for future battles with Biden’s administration, later striking down many of its student debt relief, environmental, and Covid measures. But Trump’s fortunes reversed. As 2024’s GOP nominee, he’s found the court more accommodating. Roberts, channeling Rehnquist’s 2000 strategy, aggressively maneuvered to unite his fellow Republican appointees (save Barrett) behind notably pro-Trump decisions on Colorado ballot access, presidential immunity, and January 6 cases—rulings that stretch well beyond conventional conservative legal principles. Trump’s gratitude has been effusive. Once critical of the court’s loyalty, he now lavishes praise on its decisions and individual justices, celebrating their “INTELLIGENCE, COURAGE, and ‘GUTS’” at rallies and on social media.

As 2024 election litigation looms, some liberal commentators warn of another Bush v. Gore, claiming Roberts has gone “full MAGA.” The reality is more nuanced. Roberts, like his mentor Rehnquist, is a shrewd conservative strategist. If Trump remains conservatism’s standard-bearer after a close election, the court might tip the scales his way. But a decisive victory by Vice President Kamala Harris could diminish Trump’s appeal among conservative elites. Following Rehnquist’s example, the conservative justices will likely calibrate their decisions based on broader political currents and Republican interests.

No matter who wins, the court will remain a conservative institution for the foreseeable future, thanks to Trump’s three conservative appointments. But the type of conservative matters. There are real differences between Alito and Thomas on the one hand, and Barrett and Roberts on the other. The court is caught between Rehnquist’s twin legacies of conservative transformation and institutional pragmatism, and next month’s election result likely will determine which legacy emerges supreme over the next four years.