William Rehnquist, the Separation of Powers, and the Riddle of the Sphinx

Abstract

From his service as the head of the Justice Department's Office of Legal Counsel through his tenure as an Associate and Chief Justice on the Supreme Court, Rehnquist's separation of powers jurisprudence has been marked by an inductive, common-law approach to constitutional adjudication. It is an approach that eschews categorical, a priori bright-line rules, but favors precedent and the lessons of history, and occasionally learned from history to permit a line of authority, in a common law evolutionary manner, to be rationalized or become extinct. When Rehnquist believed the constitutional text spoke clearly, he followed its specific commands. Absent such clarity, though, he would defer to Congress as "the dominant balancer of public policy in our democratic society." That is not to say that with respect to the separation of powers Rehnquist was pro-Congress simpliciter. Instead, when Congress failed to take responsibility for its duty to make public policy, Rehnquist enforced the separation of powers by forcing Congress to deliberate and not impermissibly pass the buck to the executive branch or to the courts. These themes provide some unity to Rehnquist's separation of powers cases and explain some of his votes.

Of course, Rehnquist's views on the separation of powers might not be so tidily explained and we briefly explore an alternative account of Rehnquist's separation of powers cases, namely, that there were two William Rehnquists with regard to the separation of powers. The first was the Associate Justice and dissenting "Lone Ranger" who took a strong view of the separation of power. The second was the Chief Justice, with an institutional incentive to vote with the majority, who would assume a less formal approach to the issue.

Keywords: separation of powers, William Rehnquist, Morrison v. Olson, Office of Legal Counsel