Post Date: September 8, 2005
The following op-ed by Professor William Stuntz, The Anti-Theorists: What Bush and Rehnquist Had in Common, originally appeared in Tech Central Station.
George W. Bush has lost his favorite Supreme Court Justice.
No, Antonin Scalia has not quietly resigned. (Does Scalia quietly do anything?) And yes, Bush does like to say that Scalia is his favorite Justice. But I have a sneaking suspicion his heart beats faster for William Rehnquist. For it is Rehnquist, not Scalia, who most resembled Bush himself. Both the President and the late Chief Justice are conservatives of a different sort than Scalia and Ronald Reagan -- who appointed Scalia and elevated Rehnquist. The Reagan-Scalia style of conservatism is more ideological; its intellectual lodestar is an intellectual: Friedrich Hayek. Bush and Rehnquist are more bottom-line oriented -- if Bush's is a business-school presidency, Rehnquist's was the closest we are likely to see to a business-school Chief Justiceship. Their conservatism is more Burke than Hayek -- though Burke is too much of a traditionalist for these two sons of the wide-open, fast-changing West.
Bush and Rehnquist shared another trait, an odd one that has had large consequences for both men, and for the country. Bush is a pragmatist who has a knack for making ideologues think he's one of them. So was Rehnquist.
You could see it in his opinions, especially after he became Chief. Rehnquist opinions have a certain casualness about both reasoning and citation -- he was famous for misdescribing past cases to make them say what he wanted. He was also well-known by law clerks for cutting out most of the reasoning in their opinion drafts. The classic Rehnquist opinion would state the facts (sparely), state the issue, and state the result, with as little explanation as possible. With one exception: Rehnquist was an artist at laying the groundwork for some future legal development he wanted but for which he didn't yet have the votes. When reasoning was just reasoning, Rehnquist didn't much care about it. When the choice of legal arguments offered a shot at some future bottom line, he cared a lot. Reasons were mere tools. Results were the point of the exercise.
And he believed in seizing opportunities. I clerked for Lewis Powell during his next-to-last year on the Court. That year, Rehnquist was assigned the majority opinion in what looked like a not-very-important criminal case. His law clerk wrote an opinion draft; Rehnquist pared it down a little, then circulated it. Quickly, six of the other eight Justices -- including William Brennan and Thurgood Marshall, the Court's leading liberals -- joined. Rehnquist was appalled: if he was getting more than five votes, that meant he had left money on the table, that he could have pushed the law farther in his preferred direction without losing his majority.
Above all, he was the bottom-line Justice. Faced with a choice between theoretical consistency and a favorable outcome, he would pick the outcome every time. No judge's decisions fit any theory perfectly, but Rehnquist was clearly at one end of the spectrum in this regard. Lawyers call it "result oriented," and it's usually a pejorative. Rehnquist might have considered it a compliment. He seemed to think that law should be result-oriented: the Brennans of the world had their preferred results and he had his; the two sides should duke it out. Theoretical consistency, in his view, was overvalued. Rehnquist understood that the law is filled with compromise and conflicting principles, that without those inconsistencies the machinery can't run. And he believed in making the machinery run -- even the most liberal Justices rejoiced at how smoothly the Court functioned after he took over the Chief's chair from Warren Burger. Just as meetings in George Bush's White House begin when they're supposed to and end when they're supposed to.
A large and important strain in American conservatism emphasizes the power of ideas. Twenty years ago, a favorite conservative slogan was the title of Richard Weaver's book: "Ideas Have Consequences." But another important strain values institutions and societies more. Theories come and go -- crucially, one can never tell which theory will rule the roost tomorrow -- but the Court, and the justice system, live on. Like most conservatives of his generation, Rehnquist was always one of the institutionalists. Legal conservatives of his generation sometimes made "original intent" arguments and sometimes not; they didn't consistently buy any one theory. Instead, they had a general sense that individual rights had expanded too much and federalism was protected too little. Rehnquist agreed, and pushed against both trends, using whatever theory was most convenient.
Just as George W. Bush reaches for whatever argument will do the trick; his concern is with the decision, not the rationale. Remember Peggy Noonan's criticism of Bush's inaugural address last January? Noonan hated the speech: she thought it was arrogant, that Bush was letting his theory run away with him. Whether or not that criticism fairly applies to the speech (I liked it, but then I'm a law professor -- we love theories), it doesn't fairly apply to Bush's foreign policy. He isn't running around the world toppling governments and rebuilding nations. A better summary would go like this: America's interests changed after September 11, and in the Muslim world, some targets of opportunity appeared. Bush exploited them, or tried to. His is the sensibility of a business executive who says: Here's some money on the table. Let's pick it up.
Actually, that has been Bush's approach to most issues. Steel tariffs, prescription drugs, "No Child Left Behind" -- all these violated one or more core conservative principles. Bush didn't mind, because they seemed to him the right move at the right time. Not since Franklin Roosevelt have we had a chief executive so guided by his own intuition.
There are two downsides to the Bush-Rehnquist sensibility. The first goes to persuasion. Rehnquist was never good at convincing people who weren't already convinced. Bush has the same disease, and then some. When decisionmakers think arguments are just for show, the public realizes, and tunes them out. Bush decided that getting rid of Saddam Hussein was the right thing to do. I buy that decision. But a lot of people don't, and they are probably unpersuadable now, because he has never bothered to build a sustained argument. Something similar is true of Rehnquist's federalism cases. They are shaky legal authority, not just because most of them received only five votes (including both Rehnquist and O'Connor, the two Justices Bush is about to replace), but because they contain no clearly articulated, well-defined theory that explains why someone with a different view might want to switch sides.
The second downside is that theory sometimes provides limits; without the theory, one doesn't always know when to stop. If Bush had some clear philosophy about taxes and deficits, America's budget would be in better shape than it is. Instead, he just knows that he likes cutting taxes, and so cuts them whenever he can. Just as Rehnquist liked states' rights, and expanded them whenever possible.
But bottom-line decisionmaking also has two large virtues. Most people, most of the time, are better at practice and intuition than at theory. Wise bottom lines will often happen if you let them. Insisting on the right theory will only gum up the works or lead us in bad directions.
The second virtue is one the President probably understands well; it has to do with risk management. Follow a consistent theory, and if the theory proves wrong -- as usually happens -- you've blundered badly. Follow different approaches in different areas and at different times, and you might hit on a couple that yield good results and build on your success. Just as investing in a range of industries usually gives you a better return than putting all your financial eggs in one basket. Bush's and Rehnquist's style of leadership seeks not ideological purity but a diversified portfolio.
There is something charmingly modest, and deeply conservative, about that vision of law and governance. Conservatives have long believed that human nature disposes us to arrogance, that we're not as smart and not nearly as farsighted as we think we are. The world is a terribly complicated place. If I think I've figured it out, I'm bound to be wrong, maybe disastrously so. Those who run things should not be enforcing some ideological orthodoxy but muddling along -- looking for targets of opportunity, picking up money on the table, testing their intuitions against those of others. It's not a grand vision of how the Supreme Court or the White House should work. But perhaps all those grand visions -- there is no shortage of them -- will lead us to very bad places.
I think the late Chief Justice understood that, as I think the President does, too. Those of us who do theory for a living find them frustrating. But ours is not the path of wisdom. Theirs probably is.
William Stuntz is a professor at Harvard Law School and a frequent TCS contributor.