“Arrogance Cloaked as Humility” and the Majoritarian First Amendment the Free Speech Legacy of Chief Justice William H. Rehnquist

Abstract

In his nineteen years as chief justice of the United States, William H. Rehnquist voted in favor of the individual expression interest asserted in approximately one-fifth of the Speech Clause cases heard by the Supreme Court. Meanwhile, he opposed protecting those constitutional interests in approximately two-thirds of the speech cases during that time. (His votes evidenced both speech-protective and non-protective elements just more than 10% of the time). This analysis compares Rehnquist's jurisprudence with that of his two immediate predecessors, Chief Justices Warren Burger and Earl Warren. Rehnquist's deference to government, reliance on history, and formalist categorization of cases represented a shift of focus from the First Amendment as protector of minority views to the First Amendment as bastion of majoritarianism.