Rehnquist felt strongly that government's legislative, executive and judicial powers should be kept separate and distinct. It was again Rehnquist who wrote a 5-4 decision reversing the judge who ordered Missouri to increase teachers' salaries in the Missouri v. Jenkins desegregation case.
He told the lower federal judge "to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution." That litigation had dragged on for 18 years until Rehnquist finally blew the whistle on its judicial activism.
That was not the first time Rehnquist put the brakes on a runaway judiciary. The most famous case in the important field of administrative law is Vermont Yankee Nuclear Power v. National Resources Defense Council Inc. (1978), in which a liberal appellate judge had interfered with the process of a federal agency.
In a strongly worded reversal that shocked the legal community, Rehnquist wrote an opinion that attracted unanimous support on the court. He declared that agency decisions should not be overturned "simply because the court is unhappy with the result reached."
As the years went on, Rehnquist showed his greatest skill in assembling a wobbly five person majority. In 2000, Rehnquist wrote two 5-4 decisions for the Court that will live on far beyond his departure.
In United States v. Morrison, the high court reviewed a federal law that offered big damages in federal courts for domestic disputes between men and women, an issue that had always been handled under state law. Briefs filed by 67 feminist and liberal groups urged opening federal courts to domestic relations, and offering attorney's fees to entice lawsuits against deep pockets.
Congress had passed the law by a wide margin, and media pressure was intense to uphold it. The facts of the case involved a college coed seeking recovery for an alleged rape by a football player, so no one would be applauded for ruling against her.
Yet Rehnquist led a five person majority to keep the federal courts out of marital and domestic disputes. In so doing, he affirmed his brilliant 5-4 decision five years earlier in United States v. Lopez, which recognized limits on federal power under the Commerce Clause.
Rehnquist's other 5-4 decision in 2000, Boy Scouts v. Dale, maintained the right of the Boy Scouts to decide for themselves whether to allow gay scoutmasters. Against a claim by liberal justices of greater societal acceptance of homosexuality, Rehnquist retorted that "the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view."
Rehnquist's career testifies to the importance of defending the right of dissent against conventional media wisdom. Now that President Bush has renominated John Roberts for Rehnquist's position, Bush should fill the additional vacancy with a judge who has a proven record of standing firm against peer pressure.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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