Rehnquist Made Many Questionable Rulings

Chief Justice Rehnquist made more good decisions than bad ones, but some of the bad ones can leave a person scratching their head wondering what he was thinking. Rehnquist may have been only one of two Justices on the right side of the Roe v. Wade decision in 1973, but his dissent, in my opinion, was extremely lacking in substance and vigor. In South Dakota v. Dole (1987), Rehnquist gave the majority decision that allowed the federal government to use coercive tactics when using its spending power. In this decision the Court held that Congress had the authority to withhold federal transportation funding from the state of South Dakota unless they raised their drinking age to 21. South Dakota allows young adults (18-20) to only drink near bear (3.2% alcohol by content). In her dissent, Justice O’Connor schooled Rehnquist that coercive or as the Left call it “encouragement” spending powers apply if the money being withheld is related to the subject of the funding: Federal highway safety. There was no evidence South Dakota highways would be safer by increasing the drinking age and thus O’Connor theorized that establishing a drinking age and highway safety were unrelated. One example where Rehnquist really misses the target is over “commercial speech”. Commercial speech involves things like corporate advertising. Rehnquist wrongly asserts that commercial speech is not subject to the same First Amendment protections as noncommercial speech – such as political speech. And he feels this way even if the commercial speech is truthful and informative.

In Virginia Pharmacy Board v. Virginia Consumer Council (1976), the Court held a statute prohibiting pharmacies from “truthfully” advertising the cost of its products was unconstitutional. Rehnquist wrote the dissenting opinion: “I do not believe that the First Amendment mandates the Court’s ‘open door policy’ toward such commercial advertising. Rehnquist writes that “prescription drugs, liquor, cigarettes, and other products the use of which it has previously been though desirable to discourage.” There may have been some restrictions placed on some products in terms of advertising, but advertising was never banned in any sense such as Rehnquist hints. This is a totally anti-capitalistic way of thinking on his part and is by no means even accepted First Amendment theory by the “liberal” sect of the court.

In Central Hudson Gas and Electric v. Public Service Commission (1980), Rehnquist elaborates much deeper into his flawed thinking. In this case, the Court held a New York law prohibiting the advertisement of energy as unconstitutional. Of course, energy is not at all any of the “evil” products pointed out in the Virginia Pharmacy Board ruling. Yet, Rehnquist still dissents claiming the Court is moving back to the “bygone era of Lochner v. New York (1905) in which it was common practice for this Court to strike down economic regulations. However, as Rehnquist notes, the FDR Court era changed all this and “it had become well established that a State has broad discretion in imposing economic regulations.” Rehnquist summarizes by saying “in a democracy, the economic is subordinate to the political.” Rehnquist’s summary of Lochner and FDR era economic laws is true. But those cases dealt specifically with the Commerce Clause not the First Amendment. More importantly in Gibbons v. Ogden (1824) which was the first major Commerce Clause case, Chief Justice Marshall writes about the power of interstate commerce “is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed by the Constitution.” I read this as meaning the Commerce Clause can be preempted if it violates some other clause or right in the Constitution. A Commerce Clause law that abridges any right outlined in the Bill of Rights will be struck down as unconstitutional. That makes sense, so in Central Hudson Gas and Virginia Pharmacy the Commerce Clause does not matter since these cases are about the First Amendment. I do not believe Rehnquist was using the correct logic or theory to apply the law in these two cases which led him to make the wrong decision. Today’s conservative Justices would not agree with Rehnquist’s philosophy about commercial speech, FDR economic use of the Commerce Clause (especially Wickard v. Filburn, although it seems accepted except for Justice Thomas), or the right of Congress to use the Spending Clause in a coercive manner (although Trump is going to do this to try to end Sanctuary Cities – interesting to see what happens if that goes to the Supreme Court).