Majoritarian Democracy in a Federalist System: The Late Chief Justice Rehnquist and the First Amendment‪.‬

INTRODUCTION To some, linking the late Chief Justice William H. Rehnquist and the First Amendment smacks of paradox. (1) Known throughout the entirety of his thirty-three years on the Supreme Court for his judicial conservatism, (2) Chief Justice Rehnquist is probably best remembered in the First Amendment arena for the many opinions in which he found no protection afforded by the First Amendment. (3) Rehnquist is also well-known for opinions holding that, if the First Amendment conferred any rights, they were overborne by government interests that the Chief Justice found weightier and more imperative. (4) One noteworthy example is Texas v. Johnson, (5) a 1989 case in which Chief Justice Rehnquist dissented from the majority's holding that a Texas statute criminalizing public flag burning was unconstitutional. (6) It is, therefore, no surprise that some scholars and commentators have criticized the late Chief Justice's First Amendment jurisprudence as meager, unprincipled, or indifferent. (7)