What was William Rehnquist's legacy as a Justice of the Supreme Court? Many people will address that question in the days and weeks to come. Here is a straightforward analysis of his record in cases involving the First Amendment's "freedom of speech, or of the press."
In his more than 30 years on the Supreme Court, Justice Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the First Amendment claim only 20 per cent of the time. In these same cases, the other justices with whom he sat (Blackmun, Brennan, Breyer, Burger, Douglas, Ginsburg, Kennedy, Marshall, O’Connor, Powell, Scalia, Souter, Stephens, Stewart, Thomas, and White) voted to uphold the First Amendment claim 53 per cent of the time. Thus, Rehnquist’s colleagues were 2.6 times more likely than Rehnquist to hold a law in violation of “the freedom of speech, or of the press.”
But this only scratches the surface. Even the Supreme Court has easy cases. These cases are best identified by unanimity. If all the justices agree that a law is constitutional or unconstitutional, an individual justice’s vote does not tell us anything very interesting about his views. Sixty-three of the 259 cases were decided by unanimous vote. If we exclude those “easy” decisions, we find that Justice Rehnquist voted to reject the First Amendment claim an astonishing 92 per cent of the time. In these same cases, the other justices voted to uphold the First Amendment challenge 55 per cent of the time. Thus, in non-unanimous decisions the other justices were 6 times more likely than Justice Rehnquist to find a law in violation of “the freedom of speech, or of the press.”
This may be misleading. Perhaps the “liberal” justices, such as Brennan, Douglas and Marshall, skewed the data. Before drawing any conclusions, we should therefore compare Rehnquist’s voting record with those of his more “conservative” colleagues, such as Burger, Scalia, and Thomas. That comparison shows that Burger was 1.8 times more likely than Rehnquist to rule in vote in favor of the First Amendment, Scalia was 1.6 times more likely, and Thomas was 1.5 times more likely. Thus, during his tenure, Rehnquist was by an impressive margin the member of the Supreme Court least likely to invalidate a law as violating “the freedom of speech, or of the press.”
Even more striking were Justice Rehnquist’s votes in cases involving “the freedom of . . . the press.” These decisions addressed such issues as whether the First Amendment guarantees a journalist-source privilege, whether the government may enjoin the publication of truthful information, and whether the press has a First Amendment right of access to certain places or information. In the 33 non-unanimous decisions involving “the freedom of . . . the press,” Rehnquist rejected the constitutional claim 100 per cent of the time. In more than 30 years on the Court, Rehnquist never once found a violation of “the freedom of . . . the press” in a non-unanimous decision.
Indeed, there were only three areas in which Justice Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving commercial advertising, religious expression, and campaign finance regulation. Rehnquist was 2.6 times more likely to invalidate laws restricting commercial advertising than laws restricting political or artistic expression. He voted to invalidate campaign finance legislation 67 per cent of the time, and he voted to invalidate restrictions on religious expression 100 per cent of the time. Indeed, in non-unanimous decisions, Rehnquist was 14.7 times more likely to vote to invalidate a law restricting commercial advertising, campaign expenditures, or religious expression than one involving any other aspect of “the freedom of speech, or of the press.”
What all this leads me to conclude is that Justice Rehnquist’s record with respect to “the freedom of speech, or of the press” was dismal. Not only was he the Justice least likely to protect these freedoms, but his general “passivity” towards these freedoms cannot be defended as principled, coherent, or neutral. His inclination to sustain First Amendment claims only when they involved commercial advertising, campaign expenditures, or religious expression, belies any plausible theory of originalism, judicial restraint, or even-handed constitutional interpretation. When all was said and done, Justice Rehnquist's First Amendment belonged to corporations, wealthy political candidates, and churches. In this, at least, he won't be missed.