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Jackson, Rehnquist, and the Remaking of American Federalism

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Jackson, Rehnquist, and the Remaking of American Federalism AGGREGATE EFFECT: JACKSON, REHNQUIST, AND THE REMAKING OF AMERICAN FEDERALISM A Thesis submitted to the Faculty of The School of Continuing Studies and of The Graduate School of Arts and Sciences in partial fulfillment of the requirements for the degree of Master of Arts in Liberal Studies By Ryan J. Travers, B.A. Georgetown University Washington, D.C. March 27, 2013 Copyright 2013 By Ryan Travers All Rights Reserved ii AGGREGATE EFFECT: JACKSON, REHNQUIST, AND THE REMAKING OF AMERICAN FEDERALISM Ryan Travers, B.A. Mentor: S. Anthony McCann, M.A. ABSTRACT This thesis explores the influence Robert H. Jackson had in shaping William H. Rehnquist’s Commerce Clause jurisprudence. Jackson and Rehnquist were two of the most influential Justices of the twentieth century and perhaps in the history of the United States Supreme Court. Their lives were similar in some ways — both served in Presidential Administrations prior to joining the Court — and yet, they were also divergent: Jackson was a lifelong Democrat, while Rehnquist was a Republican. Their views on the Commerce Clause, one of the most important sources of federal government power, also show some similarities and differences. Both were the authors of landmark Supreme Court decisions that defined the scope of the Commerce Clause and of the federal government. Jackson advocated the expansion of the Commerce Clause and wrote the opinion in Wickard v. Filburn, a case that significantly expanded the federal government’s power; Rehnquist led the opinion in United States v. Lopez that curtailed that same commerce power, overturning a federal statute under the Commerce Clause for the first time since before Jackson joined the Court. Their lives would intersect during two years from 1951 until 1953 while Rehnquist served as a clerk under Jackson. This experience became one of the most important milestones in Rehnquist’s life, as well as a source of significant controversy. The forces of continuity and change press on the Supreme Court just as on other major political institutions. This thesis will address this significant reinterpretation of the Commerce Clause of the United States Constitution and place it within the doctrines of stare decisis and judicial restraint, while arguing that changing circumstances and the personal relationship of iii Justices Jackson and Rehnquist contributed to a redirection in constitutional law in the United States. Jackson spent a significant portion of his career in Washington, DC advocating for the expansion of the Commerce Clause and generally continued to do so as a Justice. Rehnquist and Jackson had a difficult relationship during and after Rehnquist’s clerkship. After he joined the Court as a Justice, Rehnquist generally sought to restrain the power of the federal government and eventually did so in United States v. Lopez. This thesis argues that Rehnquist’s Lopez decision is not a repudiation of Jackson’s philosophy; rather, it complements that philosophy and illustrates the impact Jackson’s influence — along with others — had in shaping Rehnquist’s jurisprudence and the Lopez decision. iv ACKNOWLEDGMENTS I would like to thank my mentor, Anthony McCann, for his guidance throughout the entire thesis writing process. I would also like to thank Charles Yonkers and Rory Quirk for their lessons about constitutional law that informed this thesis. Those introductions to The Federalist, the Commerce Clause, Wickard, and Lopez were the basis for this work. A special thanks to Drs. Betty and Richard Duke for helping to frame this thesis and my research. Thank you to my family: Mom and Dad, for helping me out along the way in this effort, and Aunt Kathleen, who made much of the research for this thesis possible. Thank you to Karen and John, John and Ashley, and Katie and Mike, all of whom helped in some way or another throughout this process. And thank you to Amanda, the best editor I know. v CONTENTS ABSTRACT ..................................................................................................................................iii ACKNOWLEDGMENTS .............................................................................................................. v INTRODUCTION .......................................................................................................................... 1 CHAPTER ONE: ROBERT JACKSON AND COMMERCE AMONG THE SEVERAL STATES ......................................................................................................................................... 4 The Early History of the Commerce Clause ............................................................................... 4 Robert H. Jackson’s Early Life and Career ............................................................................... 10 Jackson’s Philosophy: Pragmatism and Judicial Restraint ........................................................ 16 Jackson, the Commerce Clause, and Wickard v. Filburn .......................................................... 21 Conclusion................................................................................................................................ 29 CHAPTER TWO: A LAW CLERK COMES TO WASHINGTON............................................. 31 Rehnquist at Stanford ............................................................................................................... 31 Law School ............................................................................................................................... 38 Rehnquist in Washington, D.C. ................................................................................................ 43 The Relationship Between Jackson and Rehnquist ................................................................... 57 Conclusion................................................................................................................................ 66 CHAPTER THREE: REHNQUIST ON THE COURT ................................................................ 68 Nomination to the Court ........................................................................................................... 68 Associate Justice....................................................................................................................... 78 Chief Justice ............................................................................................................................. 90 Conclusion................................................................................................................................ 96 CHAPTER FOUR: AGGREGATE EFFECT ............................................................................... 97 United States v. Lopez .............................................................................................................. 97 Federalism Revolution? .......................................................................................................... 109 Rehnquist’s Influences: An Assessment ................................................................................. 116 Conclusion.............................................................................................................................. 123 CONCLUSION .......................................................................................................................... 124 BIBLIOGRAPHY ...................................................................................................................... 126 vi INTRODUCTION In January 1996, before a joint session of Congress, President William Jefferson Clinton announced to the country, “The era of big government is over.”1 It was a tacit recognition of the contemporary state of government in which conservatism was on the rise, as conservative Republicans controlled the House of Representatives and were calling for cuts in the size of government. It was also an acknowledgment of the transformation across the street, at the Supreme Court, where over half a century of liberal jurisprudence was overturned by a new conservative majority on the Court, led by Chief Justice William H. Rehnquist.2 Rehnquist had risen rapidly through the ranks of the legal profession. As an undergraduate, he studied constitutional law and political theory at Stanford University, examining the role of government. He later finished near the top of his class at Stanford University Law School, serving as editor of its newly formed Law Review and earning a reputation for being one of the most conservative members on the campus. Shortly after finishing his law degree, Rehnquist became a clerk for Justice Robert H. Jackson, who was an Associate Justice on the Supreme Court, a former attorney general and solicitor general, and the chief American prosecutor at the International Military Tribunal in Nuremburg, Germany. Jackson had begun his career as a country lawyer in rural New York, eventually getting involved with the Democratic Party, where he would befriend a rising star, Franklin Delano Roosevelt. Jackson subsequently served in a variety of posts in the Roosevelt Presidential Administration, eventually leading Roosevelt’s efforts to defend the constitutionality of the New Deal economic legislation. The Supreme Court in the 1930s was a conservative force in the American government, frequently striking down progressive economic policies as unconstitutional, particularly under the 1 William J. Clinton, “State of the Union Address,” U.S. Capitol, Washington, DC, January 23, 1996, http://clinton2.nara.gov/WH/New/other/sotu.html
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