Rehnquist's Law

Tweet

In that case, Rehnquist's federalism provided victories for free speech and assembly. But it doesn't always turn out that way. When the Commonwealth of Puerto Rico legislated a ban on gambling advertising aimed at island residents, Rehnquist wrote for the Court majority in upholding the curb on free speech. If the Puerto Rican legislature had the power to ban casino gambling altogether, he wrote, surely it could ban advertising aimed at promoting it.

In fact, Rehnquist seems to attach little constitutional importance to commercial free speech, especially when it is pitted against the other compelling state interests. Back in 1976, he wrote a blistering dissent when the Court majority overturned a Virginia statute prohibiting pharmacists from advertising drug prices. The majority opinion, he wrote, "elevates commercial intercourse between a seller hawking his wares and a buyer seeking to strike a bargain to the same plane as has been previously reserved for the free marketplace of ideas." On the basis of similar arguments, Rehnquist has consistently sided with states that would limit advertising by professionals such as lawyers.And one might expect that, by the same logic, he would uphold limitations on cigarette and liquor advertising, either by state or federal governments, should these ever be subject to constitutional test.

"I think commercial speech is in deep trouble with this Court," says Alan Dershowitz, a Harvard Law School professor who advocates a broad interpretation of First Amendment rights. "The irony is that all speech is really commercial speech. Some of the greatest growth companies in America have been media corporations -- CBS, NBC, the Rupert Murdoch empire. They aren't in it for charity -- that's commercial speech. So the line is a very hard one to draw."

The First Amendment is not the only constitutional amendment that Rehnquist reads rather narrowly, even when business interests are involved. Just last term, Dow Chemical Co. argued before the high court that the U.S. Environmental Protection Agency had violated the company's Fourth Amendment protection from unreasonable searches when it sent a plane equipped with a sophisticated aerial mapping camera over its plant to check for compliance with air pollution laws. But a majority of the Court, including Rehnquist, sided with the government regulators.

Rehnquist's creed is judicial restraint, not government restraint, so he is likely to defer to the judgment of executive branch officials except in the most egregious cases. That's bad news for companies that find themselves in spats with regulators. But, according to Peter Raven-Hansen, a law professor at George Washington University, it will probably "have even more of a negative effect on environmentalists and Nader-like groups" that, in the past, have used the courts to force agencies to be more aggressive in their enforcement. Rehnquist would look to block those efforts by denying those groups the standing to bring their lawsuits in the first place.

As his Senate critics have pointed out, the new chief justice views affirmative action with a jaundiced eye, be it voluntary or imposed. He dissented in the 1979 case, United Steelworkers of America v. Weber et al, a major ruling upholding voluntary private affirmative action programs. "There is perhaps no device more destructive to the notion of equality than the . . . quota," he wrote then. Likewise, Rehnquist opposed the majority decision last term in Local #28 of the Sheet Metal Workers' International v. Equal Employment Opportunity Commission. The EEOC had found that the union had persistently refused to admit blacks, and ordered it to increase its nonwhite membership to 29.2%. The Court majority backed the order, but Rehnquist sided with the Reagan Administration's contention that affirmative action programs should be used to help only those blacks who were actually discriminated against by the union.

Rehnquist surprised the civil rights community last spring, however, in ruling that sexual harassment in the workplace can be considered a violation of the Civil Rights Act of 1964. "Without question," he wrote for a unanimous Court, "when a supervisor sexually harasses a subordinate . . . that supervisor discriminates on the basis of sex. [The law] affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult."

There will be no surprises, however, from Rehnquist in cases relating to antitrust enforcement. Should a new Administration ever revive this area of the law and attempt to block or modify corporate mergers and acquisitions, Rehnquist can be expected to set aside his government sympathies and oppose the regulators. In government antitrust cases -- and private actions, too -- he clearly favors the hands-off approach to the economy favored by a group of legal scholars known as the "Chicago School." Last term, the conservative Rehnquist even found himself voting with the majority in upholding Berkeley, Calif.'s tough rent-control ordinances against a challenge brought by real estate interests, who argued that the controls were a form of illegal price fixing.

For die-hard Republicans hoping to extend the Reagan Revolution, it may come as a disappointment that their new chief justice could rule in favor of rent control and land redistribution, tough environmental regulation, and federal jurisdiction over the sexual advances of supervisors. For others, there may be some consolidation in the fact that Mr. Justice Rehnquist reads the law at least as carefully as the election returns. "It's not as though we'll have the savior of American business leading the Supreme Court from now on," concludes the University of Chicago's Epstein. "He's a judge first, and a capitalist second."

 PREV  1 | 2