In his 1985 White House memo, Roberts theorized that Rehnquist "had five votes to uphold the statute, and tried to use the occasion to go after the bigger game of the Lemon test itself." In Roberts' analysis, O'Connor defected first from Rehnquist's would-be originalist majority, and that gave Powell cold feet.
"Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize Establishment Clause jurisprudence, and ended up losing the majority," wrote Roberts. "Which is not to say the effort was misguided. In the larger scheme of things, what is important is not whether this law is upheld or struck down, but what test is applied."
Rehnquist never succeeded in restoring the original meaning of the Establishment Clause. But he never stopped trying. One of his last acts was to join a dissent written by Justice Antonin Scalia in a 5-4 decision in which the majority used the Lemon test to forbid two Kentucky counties from displaying the Ten Commandments in courthouses. Scalia's dissent approvingly cited Rehnquist's dissent in Wallace. Justice O'Connor again determined the outcome, concurring with the liberals.
Rehnquist's most famous dissent -- which came in the 1973 Roe v. Wade decision -- resembles his Wallace dissent in three ways: It, too, spoke historical constitutional truth to raw judicial power. Rehnquist never backed down from defending that truth. And the court still lacks a majority willing to act on it.
When Justice Harry Blackmun argued fatuously in Roe that the 14th Amendment prohibited states from restricting abortion, Rehnquist countered with the cold fact that the laws of 36 states restricting abortion were in force before the amendment was ratified and remained in force after.
When Republican Justices O'Connor, David Souter and Anthony Kennedy, in the 1992 case of Planned Parenthood v. Casey, hid behind "stare decisis" to uphold the deadly illogic of Roe, Rehnquist vigorously rebuked them. "It ... is our duty," he wrote in a dissent joined by Justices Scalia and Clarence Thomas, "to reconsider constitutional interpretations that 'depart from a proper understanding' of the Constitution."
Rehnquist's death leaves only two originalists on the court. Even if John Roberts proves, once confirmed, to be as intellectually honest and courageous as his mentor, it would still take two more originalists to complete the great dissenter's counter-revolution.
This is what rides on President Bush's next choice -- and the choice after that.
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