Book Excerpt: 'Supreme Conflict'


When Rehnquist did press, he could be effective. He cared deeply about states' rights, and beginning in 1995 he'd convinced other justices to join him in scaling back Congress's power. The Court generally was divided on those cases 5-4, and O'Connor, the former state legislator, was a solid ally. But five years later Rehnquist worried he would lose her vote in a critically important states' rights case that challenged the federal Violence Against Women Act.4 The law allowed women to sue in federal court if they were physically assaulted because of their gender. Opponents said those lawsuits belonged in state court.

Rehnquist worried that O'Connor was wavering, and he felt compelled to approach her. Although O'Connor typically sided with him on states' rights issues, she also strongly supported women's rights. The case forced her to choose sides between two of her causes, and supporters of the law urged O'Connor to take theirs. But Rehnquist was the more effective lobbyist. O'Connor called him in his chambers late one afternoon to tell him she would be casting her vote with the chief. He hung up the phone with satisfaction. "Well, we got it," he said.

But even in those states' rights cases when O'Connor remained with her chief, the other justices seemed to be pulling back. Ten years after Rehnquist first tried to lead a "federalism revolution," the justices held up a stop sign and said that Congress could trump the states on law enforcement issues. The Court ruled that the federal government had broad powers to prohibit the use of marijuana for medical purposes, even if the states wanted to allow it.5 Antonin Scalia and Anthony Kennedy joined the Court's four liberals in supporting federal power in the case.

That case, decided at the end of the 2004 term, effectively ended Rehnquist's efforts to rein in Congress. Dying of cancer, he was in no condition to fire off one last rhetorical volley for states' rights. O'Connor and Thomas wrote the dissents instead.

The decision also seemed to signal the end of the Rehnquist Court. With the chief 's expected retirement, George W. Bush would finally get the chance to put his stamp on the Court. But Bush wouldn't immediately change its direction. He would be replacing a conservative with another conservative, albeit a leader of his choosing.

That year had been difficult for the Court. Rehnquist, so stern in private settings, was a well-liked leader, and the justices had developed a warm and easy rapport over the years, even though they grappled with the most divisive issues of the time. Liberal justice Ruth Bader Ginsburg affectionately called Rehnquist "my chief," and as he deteriorated before their eyes, they suffered along with him.

His illness was ever present. Even in the private conferences, Rehnquist's breathing was strained, and he frequently had to clear his tra- cheotomy tube. Some of the justices felt constrained from strongly disagreeing over the cases during those conferences. And the other justices ended up writing more opinions.

O'Connor had several important ones. Although she sided with the liberals to order the Ten Commandments removed from a county courthouse,6 she wrote a blistering dissent in a landmark dispute over property rights.7 The liberal justices, joined once again by Justice Anthony Kennedy, had allowed a Connecticut town to force residents from their homes so they could sell the land to developers and collect more property taxes.

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