The Right Coast

September 04, 2005
The Underrated Justice?
By Mike Rappaport

Orin Kerr writes:

Rehnquist was probably the most underrated Justice of the last few decades. He was a brilliant man, but he wasn't showy. His opinions tended to be short, spare and minimalist; they answered the question presented and little more. Especially as Chief, Rehnquist didn't view legal opinions as opportunities to make grand jurisprudential statements. Rehnquist was very much a legal realist. He knew that the Court wasn't likely to be bound by grand jurisprudential statements expressed in prior opinions, so he figured there wasn't much point in making those statements.
Perhaps, but here is my question. How do we know that Rehnquist was a good or great justice (which seems to follow from saying he was underrated) if he wrote spare opinions and was a realist? What makes him good? He voted the right way? Since he does not justify his opinions very well, and apparently was unwilling to live with the principles in the opinions (being a realist), what is so good about him?

I am not denying he was a good justice -- but see below -- but simply asking what is the basis of Orin's view.