Bhakta David Nollmeyer
Chief Justice John Rehnquist (October 1, 1924 September 3, 2005) has left an enduring signature on the United States Supreme Court, jurisprudence, and criminal procedure. Rehnquist presided over the Supreme Court for 19 terms, the fourth longest in the Court's history. Rehnquist lead an activist court. This is clearly evident in the trajectory of his work. The jurisprudence of United States case law and procedure has been affected by his ideology, moral perspectives, and federalism. Rehnquist has presided over some of the most unique cases in this country as Bush v. Gore (2000) and the impeachment of President Bill Clinton in the Senate. In the area of Criminal Justice, Lawrence v. Texas (2003), Michigan Department of State Police v. Stitz (1990), and Payne v. Tennessee (1991) are all clearly precedent setting cases (Marshall 2005). Some scholars have portrayed the Rehnquist Court as a shift away from the liberal jurisprudence of the Warren Era. Here there is also consideration of a political zeitgeist reflecting law and order. This can be viewed as a social control posture versus the due process model (McCall, M. and McCall 2006).
I chose Chief Justice John Rehnquist as a subject for this paper because he has been the face of the Supreme Court from the 1980s to early 2000 era. Rehnquist appeared to understand that he was sheparding conservatist jurisprudence through the cases that achieved certiorari. To study Rehnquist I researched 11 sources. These included six Supreme Court cases, four professional papers, and 1 basic law site for biographical information. From these sources I found information on the Fourth, Fifth, and Fourteenth Amendment that are fundamental to criminal procedures.
John Rehnquist was born October 1, 1924 in Milwaukee, Wisconsin as William Donald Rehnquist to William Donald Rehnquist and Margery Peck Rehnquist. He later changed his middle name to Hubbs, his grandmother's maiden name. Rehnquist is a Swedish surname (Legends).
John graduated from Sherwood High in 1942. He enrolled at Kenyon College in Ohio for one quarter in fall of 1942. He then entered the US Army Air Forces. Rehnquist had service in WWII from March 1943 to 1946. He was assigned to a pre-meteorology program and then went to Dennison University. Service was inclusive of areas in the southwest as Oklahoma City, Carlsbad, New Mexico and Hondo, Texas (Legends). Stints in Chaunte Field, Illinois and Fort Monmouth, New Jersey followed. During summer of 1945 Rehnquist was sent overseas as a weather observer in North Africa (Legends).
The G.I. Bill permitted enrollment at Stanford University at the war's end. In 1948 he earned a BA and MA in political science. By 1950 Rehnquist was enrolled at Harvard where a MA in government was earned. A return to California and Stanford Law School placed him in the same class as Sandra Day O'Connor. Rehnquist was the valedictorian at graduation but Stanford did not rank it's law students in 1952 (Legends).
Justice Robert H. Jackson hired him as a clerk for the 1952 -1953 Supreme Court term. Here he wrote a memorandum against the federal court desegregation program during the time Brown v. Education was being decided in1954. Rehnquist in his 1952 memorandum, A Random Thought on Segregation Cases, defended the separate but equal doctrine (Legends):
"Plessy v. Ferguson was right and should be reaffirmed..."To the argument ... that a majority may not deprive a minority of it's constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."
Tenure on the Court
John Rehnquist's death on September 3, 2005 ended a 33 year career on the Supreme Court and a 19 year tenure as Chief Justice. Justice Rehnquist wrote more than 250 decisions dealing with criminal justices issues. Rehnquist was nominated by President Richard Nixon. He was commissioned on Wednesday, December 15, 1971. A little over a year later he was sworn in on Friday, January 7, 1972 as Associative Justice seat 10. He left this office Friday, September 26, 1986. He was nominated by President Ronald Reagan and was commissioned to be Chief Justice on Wednesday, September 24, 1986. He was sworn in by Chief Justice Warren Burger his mentor, on Thursday, September 25, 1986. His tenureship endured until September 2, 2005 (Oyez Project).
Rehnquist has positioned himself under the Federalist or New Federalist paradigm in contrast to Warren his predecessor (Claeys 2005). Rehnquist has left a credible signature on issues that "deal with the Fourth Amendment's protection against illegal search and seizure, the Fifth Amendment's protection against self incrimination, federalism as related to criminal justice issues, and federal habeas corpus" (McCall, M. and McCall p.327).
In Illinois v. Gates 462 U.S. 213 (1983) Rehnquist crafted a new approach involving the totality of circumstances to replace the Aguilar Test regarding informants. Here the two prong test of 1. reliability of the informant 2. reliability of the informant's information both had to stand independently to secure a warrant. Hence, the Bloomingdale PD had received a tip that the Gateses were drug traffickers. The seizure of marijuana at their home was suppressed and affirmed by the Illinois Supreme Court and granted certiorari.
The controlling issue was the exclusion of evidence based on a probable cause determination based on the letter tip and other circumstances. The Court upheld that an experienced officer who has used a reliable informant and that informant's information and is corroborated than the totality of circumstances may provide for the probable cause determination.
In Arizona v Evans, the issue of whether evidence seized in violation of the Fourth Amendment by an officer acting on good faith that the existence of an outstanding arrest warrant, an order that is later determined to be faulty, is covered by virtue of the exclusionary rule without prejudice of the source of error. In it's holding the Supreme Court of Arizona stated, “that the exclusionary rule required suppression of evidence even if the erroneous information resulted from an error committed by an employee of the office of the Clerk of Court (Arizona v Isaac Evans 1995).
Phoenix police officer Bryan Sargent observed respondent Evans driving the wrong way on a one way street in January 1991. Evans was stopped and asked to produce his driver's license. Evans stated his license was suspended. Sargent then entered Evan's name into a computer data terminal. The computer indicated that there was an outstanding misdemeanor warrant for his arrest. Officer Sargent placed Evans under arrest. Evans dropped a hand rolled cigarette which smelled of marijuana. A bag of marijuana was discovered under the passenger's seat.
The police notified the Justice Court of the arrest. The Court stated that the arrest warrant had been quashed 17 days prior. Evans argued at trial that seizure was a fruit of a poison tree. He argued it was not covered by, "[t]he `good faith' exception to the exclusionary rule [was] inapplicable... because it was police error, not judicial error, which caused the invalid arrest" (Arizona v Evans 1995). The trial court granted the motion to suppress.
The Arizona Court of Appeals reversed. The Arizona Supreme Court reversed.
Rehnquist in his opinion refutes the Arizona Supreme Courts holding: The Arizona Supreme Court determined that it could not "support the distinction drawn... between clerical errors committed by law enforcement personnel and similar mistakes by court employees," 177 Ariz., at 203, 866 P. 2d, at 871 (Arizona v Evans 1995).
Rehnquist begins his conclusion, "If it were indeed a court clerk who was responsible for the erroneous entry on the police computer, application of the exclusionary rule also could not be expected to alter the behavior of the arresting officer" (Arizona v. Evans 1995). The trial court argued: "I think the police officer [was] bound to arrest. I think he would [have been] derelict in his duty if he failed to arrest" (Arizona v. Evans 1995).
Arizona v. Evans is the precedent for the good faith exception to the exclusionary rule. Since the rule was created to deter police misconduct, the Court has refused to find fault with officer's work when the error is committed by other actors (del Carmen 2010).
Herrera v. Collins (1993) is a unique case in which Rehnquist demonstrates a very deliberate and strong posture regarding the writ of habeas corpus concerning death row prisoners. Herrera was convicted of capital homicide of Police Officer Carrisalez in January, 1982. He was sentenced to death. Evidence included two eyewitness identifications, and a handwritten letter which inculpated him. In July, 1982, Herrera pleaded guilty to the related capital homicide of Officer Rucker. Herrera challenged the Carrisalez conviction on direct appeal and in two collateral proceedings in Texas state courts, and in a federal habeas corpus without success. Ten years after his conviction, he filed a second federal habeas corpus on grounds that newly discovered evidence demonstrated that his innocence in the murders of Carrisalez and Rucker. The Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's due process guarantee therefore forbade his execution. Herrera supported claimed with with affidavits attempting to implicate his now dead brother in the homicides.The District Court, granted a stay of execution so he could present his innocence claim and the supporting affidavits in state court. The Court of Appeals vacated the stay and held that the claim was not cognizable on federal habeas corpus sans a federal constitutional violation (Herrera v. Collins 1993).
The Court affirmed and Rehnquist wrote the majority opinion. Rehnquist: Held:
Herrera's claim of actual innocence does not entitle him to federal habeas relief. Pp. 398-419 (Herrera v. Collins 1993).
Rehnquist confirmed the Appeals Courts rulings (Herrera v. Collins 1993):
Federal habeas courts do not sit to correct errors of fact, but to ensure that individuals are not imprisoned in violation of the Constitution. See, e.g., Moore v. Dempsey, 261 U.S. 86, 87-88. Thus, claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief [506 U.S. 390, 391] absent an independent constitutional violation...
Herrera did not seek relief from a procedural error from the original trial of fact but attempted to add an independent constitutional claim overturning his conviction or sentence. Rehnquist argued that habeas relief would provide him with a conditional order freeing him while seating a new trial not grounded on an underlying constitutional violation but simply a claim of new evidence (Herrera v. Collins 1993).
Rehnquist demonstrates his federalist streak in stating, "Texas which requires a new trial motion based on newly discovered evidence to be made within 30 days of imposition or suspension of sentence..." and the fact that (states) "only nine of which have no time limits for the filing of such motions." Pp. 407-412 (Herrera v. Collins 1993).
Rehnquist also appears to take an advocate position in stating that the correct forum is within the State of Texas and it's clemency procedures (Herrera v. Collins 1993).
In Ross v Oklahoma (1988), Bobby Lynn was charged with the capital offense of first degree murder of a police officer. Oklahoma provides both parties in capital trials with nine peremptory challenges. Ross, who is black, attempted to remove Dennis Huling who stated he would vote to impose the capital sentence. After the trial court denied the motion to remove for cause. The defense used a peremptory challenge to remove him. The defense used all nine of its challenges. No challenge for cause were used for 12 jurors who heard the case. the trial court overruled the objection of Ross near the end of voir doir. Ross claimed the all white jury denied him a fair and impartial trial by his peers. The jury found him guilty and sentenced him to death. The Oklahoma Court of Criminal Appeals affirmed (Ross v. Oklahoma 1988).
Rehnquist here asserts his federalist posture in the majority opinion, "The trial court's failure to remove Huling for cause did not abridge petitioner's Fourteenth Amendment right to due process by arbitrarily depriving him of his full complement of peremptory challenges" and “since peremptory challenges are a creature of statute and not constitutionally required, and, accordingly, it is for the State to determine their number and to define their purpose and the manner of their exercise (Ross v. Oklahoma 1988).
Rehnquist reasoned the Sixth and Fourteenth Amendments guarantee a defendant in capital trials an impartial jury. Witt, supra; Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). If Huling sat on the jury that ultimately sentenced Ross to death, and had had he properly preserved his right to challenge court's failure to remove Huling for cause, the sentence would have to be overturned. Rehnquist states, "Petitioner exercised a peremptory challenge to remove him, and Huling was thereby removed from the jury as effectively as if the trial court had excused him for cause" (Ross v. Oklahoma 1988).
In a very plain spoken manner Rehnquist argues, "Any claim that the jury was not impartial, therefore, must focus not on Huling, but on the jurors who ultimately sat. None of those 12 jurors, however, was challenged for cause by petitioner, and he has never suggested that any of the 12 was not impartial" (Ross v. Oklahoma 1988).
Why Ross and his defense did not strongly focus on the 12 member jury remains an enigma.
In Arthur Andersen LLP v. United States (2005), Rehnquist very boldly reversed a decision in the Enron trading scandal that forced the elimination of the accounting firm Arthur Anderson. Enron's auditor allegedly instructed employees to destroy records contrary to the firm's policy (Arthur Anderson LLP v. United States 2005):
Anderson was indicted under 18 U. S. C. §§1512(b)(2)(A) and (B), which make it a crime to "knowingly... corruptly persuad[e] another person... with intent to... cause "that person to "withhold" documents from, or "alter" documents for use in, an "official proceeding."
Anderson was found guilty. The Fifth Circuit affirmed holding that the District Court's jury instructions properly conveyed the meaning of "corruptly persuades" and "official proceeding" in §1512(b). The jury does not have to discern any consciousness of wrongdoing to convict. There was no reversible error (Arthur Anderson LLP 2005). The Supreme Court reversed issuing a majority decision in this criminal case in it's holding:
Held: The jury instructions failed to convey properly the elements of a "corrup[t] persuas[ion]" conviction under §1512(b). Pp. 6-12 (Arthur Anderson LLP 2005).
In 2000, Enron's financial performance was deteriorating towards 2001. On August 14, 2001, Jeffrey Skilling, Enron's Chief Executive Officer (CEO) resigned. Sherron Watkins, a senior accountant at Enron, informed Kenneth Lay, the new CEO, that Enron may "implode in a wave of accounting scandals" (Arthur Anderson LLP 2005). Throughout this time document destruction ensued with knowledge by Enron managers.
Rehnquist's rationality follows in his opinion for the reversal, "The jury instructions failed to convey the requisite consciousness of wrongdoing. Indeed... For example, the jury was told that, even if petitioner honestly and sincerely believed it's conduct was lawful, the jury could convict" (Arthur Anderson LLP 2005). Rehnquist stated the meaning of "corruptly" was diluted now that it covered innocent conduct. The District Court based it's Jury instruction on the Fifth Circuit Pattern Jury Instruction for §1503, which defined "corruptly" as "knowingly and dishonestly, with the specific intent to subvert or undermine the integrity" of a proceeding. The jury was instructed to convict if it Enron intended to "subvert, undermine, or impede" governmental factfinding by suggesting that employees enforce the document retention policy. These changes were significant. "[D]ishonest[y]" was no longer necessary to a finding of guilt, and it was enough for petitioner to have simply "impede[d]" the Government's fact finding ability” (Arthur Anderson LLP 2005). Rehnquist also elaborated that jury instruction were deficient in that "they led the jury to believe that it did not have to find any nexus between the "persua[sion]" to destroy documents and any particular proceeding" (Arthur Anderson LLP 2005).
Rehnquist has been a voice for the conservative movement throughout his career. This is no more evident in two cases that reflect moral issues and core values. In the totality of circumstances this must be deliberated over with prudence as it is an organizing insight in Rehnquist's thought concerning criminal law. They are Roe v. Wade and Washington v. Glucksberg. Roe concerns privacy under the Fourth Amendment and ending a pregnancy through a process, an operation by a physician. In Glucksberg a liberty interest is at hand concerning doctor assisted death. Rehnquist was in the minority in Roe but authored the majority opinion in Glucksberg (Roe v. Wade 1973) (Glucksberg v. Washington 1977).
The beginning of life and it's end with sanction of the state is an integral issue in conflict with the liberty and freedom of the individual. This is very important for logical consistency in capital punishment which Rehnquist supported strongly.
In his dissent in Roe, Rehnquist points out that the Court has held "that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy". He strongly dissents while a person may vindicate one's personal rights he cannot vindicate this preference for others. (Roe v. Wade 1973).
Speaking in the first person, Rehnquist argues difficulty in finding abortion a private act invoking search and seizure (Roe v. Wade 1973):
A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. Katz v. United States, 389 U.S. 347 (1967).
Washington v. Glucksberg invokes state interests and we can see Rehnquist's federalism quite clearly. Physicians who wished to preform doctor assisted death had won victories in District Court and Ninth Circuit. This was grounded on a liberty interest in the Due Process Clause of the 14 Amendment. The case gained certiorari to the Supreme Court where Rehnquist reversed and remanded the case. Here we can also see the conservative scholarship of Rehnquist as he deftly summarized points of Anglo American common law. He argued that for 700 years of common law suicide has been disproved or punished. The earliest American law prohibiting assisting suicide was enacted in New York in 1828, Act of Dec. 10, 1828. In 1998 Four years later, "Washington passed its Natural Death Act, which specifically stated that the "withholding or withdrawal of life sustaining treatment... shall not, for any purpose, constitute a suicide" and that "[n]othing in this chapter shall be construed to condone, authorize, or approve mercy killing..." (Glucksberg v. Washington 1977).
In concluding his majority opinion Rehnquist defines state interest as including prohibiting intentional killing and preserving human life, preventing suicide and maintaining the physicians role as the healers. This includes helping the poor, elderly, disabled persons and terminally ill from indifference. He ends with preventing prejudice and financial pressure to end one's life and a slide towards involuntary euthanasia (Glucksberg v. Washington 1977).
Here in these two cases we see an activist conservative judge who is attempting to uphold a conservative perspective of the Constitution to a degree while supporting state rights.
Impact on Criminal Procedures
Rehnquist's trajectory as a conservatist juror reflects on his voting and opinion writing in limiting or proscribing police powers. This does not state the Rehnquist did not attempt to balance his rationality between the state and the individual, he sought to present a strong hand against crime. This is evident in narrowing the exclusionary rule under the Fourth Amendment and the right to self incrimination under the Fifth Amendment. Rehnquist also attempted to narrow the endless procedure of habeas corpus writs in capital cases establishing him as a retentionist against an increasing abolitionist tide (McCall, M. and McCall 2006).
Justice Rehnquist has authored many opinions that concern daily police work especially traffic related searches. In United States v. Robinson it was held that after a lawful custodial arrest that even without a public safety concern a search incident was lawful under the Fourth Amendment and department policy. This was in consideration of a full search of the individual (McCall, M. and McCall 2006).
Rakas v. Illinois, Rehnquist in his opinion held that a passenger of a car does not have standing to raise a claim of illegality in the search of that car (Bradley).
Rehnquist also authored the Court's decision in United States v. Ramsey (1977). The court held the warrantless search of international mail by customs officials as constitutional (McCall, M. and McCall 2006).
An interesting case involved Alfonso Lopez who as a 12th grade student knowingly brought a weapon to school. Congress had passed the Gun-Free School Zones Act of 1990. This federal statute made it a crime to posses a gun within 1000 feet of a school. Congress passed it under it's authority to limit commerce. Rehnquist wrote the opinion in a 5 to 4 majority in what is considered a federalist check on Congressional power. Rehnquist argued that the act attempted to regulate criminal behaviors that are not commerce or economic activity (McCall, M. and McCall 2006).
The Rehnquist Court was most active in cases involving the writ of habeas corpus towards the last decade of his career 1995 2005. Rehnquist had shown concern over the volume of death row inmates pleadings and that the federal court was permitting excessive litigations that unduly lengthened the appeals process. Justice Rehnquist stated in relationship to the Supreme Court that a reluctance to rule against a death row petitioner, "had made it virtually impossible for States to enforce with reasonable promptness their constitutionally valid capital punishment statutes" (McCall, M. and McCall 2006).
Justice Rehnquist appears to have earned a law and order and get tough image in the history of American jurisprudence. From a conservative position Rehnquist consistently voted to limit restrictions on police, to constrain double jeopardy protections and to reduce habeas corpus rights to death row petitioners. His federalism attempted to increase state rights within the Constitution. The Supreme Court is a natural check on Congressional power. During 1995 to 2005, Rehnquist voted conservatively 75.2% of the time with Thomas (74.4%) and Scalia (71.5%). This is unique in that Justice Scalia is viewed as the most conservative member of this court.. In this consideration Rehnquist was least likely to be the fifth member of a liberal voting bloc in the majority (McCall, M. and McCall 2006).
Claeys has argued that Justice Rehnquist pursued New Federalism. Rehnquist was likely to move on constitutional federalism cases if O'Connor and Kennedy would go along. He cites Scalia as being more consistent as a following precedent and conservatism (Claeys 2005).
Justice Rehnquist has never appeared to be in disagreement to ensure criminal defendants received a fair trial in federal and state courts. However it was a near certainty if the case involved the police he would voted against the defendant. Justice Rehnquist in contrast joined a unanimous Court in Crane v. Kentucky by reversing the Kentucky Supreme Court's holding. The Court held that (Bradley):
"...a defendant at trial must be allowed to introduce evidence as to the circumstances under which a confession was given in an effort to show that the confession was unworthy of belief."
As seen Rehnquist yields a strong hand against criminals and limits self incrimination protection under the Fifth Amendment. In conclusion Justice Rehnquist was part of a trend to limit the Fourth Amendment exclusionary rule as he describes. "the so called "exclusionary rule" created by this Court imposes a burden out of all proportion to the Fourth Amendment values which it seeks to protect" (Bradley).
The Patriot Act and it's impact on trial courts and criminal procedures may be the capstone to Chief Justice Rehnquist. It is clear that government does not have unlimited power over the persons citizens or not in their jurisdiction. Since Guantanamo Bay is still holding enemy combatants it is too premature to discern this facet of Rehnquist's legal presence (del Carmen 2010).
Arizona v Isaac Evans (1995). Supreme Court. Retrieved September 20, 2011: http://laws.findlaw.com/us/000/u10310.html
Bobby Lynn Ross v. Oklahoma (1988). Supreme Court. Retrieved September 29, 2011: http://www.law.cornell.edu/supremecourt/text/487/81
Arthur Anderson LLP v. United States (2005). Supreme Court. Retrieved September 20, 2011: http://laws.findlaw.com/us/000/04-368.html
Bradley C. The "Rehnquist Court" in Criminal Procedure. Indiana University. Retrieved September 20, 2011: http://www.gpoaccess.gov/congress/senate/judiciary/sh99-1067/425-456.pdf
Claeys, E.R. (2005) Raich and Judicial Conservatism at the Close of the Rehnquist Court. Retrieved September 20, 2011: http://law.lclark.edu/law_reviews/lewis_and_clark_law_review/
del Carmen, R. V. (2009) Criminal Procedure: Law and Practice. Eighth Edition Wadsworth/Thomson learning Belmont, California.
Herrera v. Collins 506 U.S. 390 (1993). Supreme Court. Retrieved September 29, 2011: http://laws.findlaw.com/us/506/390.html
Washington v. Glucksberg 521 U.S. 702 (1997). Legal Information Institute. Supreme Court. Retrieved September 29, 2011: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0521_0702_ZO.html
McCall, M. and McCall M.A.(2006). Chief Justice William Rehnquist: His Law and Order Legacy and Impact on Criminal Justice. Retrieved September 16, 2011: https://www.uakron.edu/law/lawreview/v39/docs/McCall392.pdf
Marshall T. Evaluating the Rehnquist's Court's Legacy. JUDICATURE Volume 89, Number 3 November-December 2005. 104-106. Retrieved September 16, 2011: http://www.ajs.org/ajs/publications/Judicature_PDFs/Introduction_893.pdf
The Oyez Project. Justice William H. Rehnquist. Retrieved August 29, 2011: http://www.oyez.org/justices/william_h_rehnquist
Roe v. Wade (1973). Supreme Court. Retrieved August 20, 2011: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZD.html