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William Hubbs Rehnquist:
Two quick thoughts about the passing of Chief Justice Rehnquist: one thought about Rehnquist's legacy, and the other about his likely replacement.

  First, Rehnquist's legacy. 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. This is speculation, and should be discounted accordingly, but my guess is that there were two main explanations for Rehnquist's understated approach. The first was simple personal modesty. Rehqnuist just wasn't a showy person. The second reason, and perhaps the more interesting one, is that 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.

  Whatever the reasons for it, Rehnquist's understated approach didn't help his standing among academics and other outside court-watchers. It's the jurisprudential nuggets and their broad implications that observers savor the most. The idea that the Justices on the Supreme Court are engaged in a grand struggle between opposing theoretical commitments makes for good entertainment, and provides lots of fodder for law review articles. As Chief Justice, at least, I don't think Rehnquist saw the work of the Court that way. As a result, his opinions often didn't give the academics and other court watchers what they wanted to see.

  Finally, a brief note about Rehnquist's likely replacement. My guess is that Bush will want John Roberts to take the Chief slot. For a number of reasons, Roberts is a natural for the job. Lyle Denniston speculates that nominating Roberts for the Chief spot is improbable given the timing of his confirmation hearings, scheduled to begin next week. I look at it a bit differently. My sense is that the Bush team is pretty savvy about judicial issues. They presumably know that whatever the near-term practical difficulties that may come with renominating Roberts for the Chief slot, the long-term impact on the Court will far outweigh them. So I would expect Roberts to end up with the nomination for the Chief position.
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