President Bush’s decision to nominate Judge John Roberts Jr. to succeed Chief Justice Rehnquist throws into sharp relief the statement by Senator Schumer that the chief justice “served his country with honor, dignity and distinction for over 30 years.” The Associated Press quoted the senior senator from New York, who is preparing to lead the grilling of Judge Roberts, as saying of Justice Rehnquist: “He was grounded in his beliefs and was a staunch defender of an independent judiciary. People of all philosophies and viewpoints greatly respected Justice Rehnquist and will miss him.”

The AP also quoted several other liberal Democrats as saying wonderful things about Rehnquist. “His commitment to the court and his passion for the law and for public service was extraordinary,” said Senator Leahy, who is also on the Judiciary Committee. The chief justice, said the minority leader, Senator Reid, “led the federal judiciary with great dignity and clarity. …” Senator Kennedy was quoted as saying that Rehnquist served “with the greatest distinction.”

The thing to remember is that the chief justice about whom the Democrats are saying these things was one of the two dissenters in Roe v. Wade, a decision with whose logic he never came to terms and which he, at least, didn’t seem to believe was settled law. He was one of the dissenters when, in Planned Parenthood v. Casey, the court reaffirmed abortion rights, and in Stenberg v. Carhart when the court allowed partial birth abortion.

The chief justice also dissented when, in Lawrence v. Texas, the court prevented the states from outlawing private homosexual relations. He was the only dissenter on the side of Bob Jones University in its the tax and racial discrimination case. He dissented in the two big cases, Bakke and Bollinger, legalizing affirmative action. He sided with the majority in handing the 2000 election to President Bush. And, in United States v. Lopez, ruled with the majority against the Gun Free School Zones Act.

It was Lopez that, by our lights, epitomized what could be called the radical nature of Rehnquist’s legacy. The case involved the question of whether the Congress has the right to outlaw the carrying or possession of a gun within a specified distance from a school. It was one of the more naked grabs at power ever attempted by the Congress, but because it involved gun control and schoolchildren, the Congress at first seemed to skate past the question of where it got the authority to pass such a law.

It turns out, however, that the Constitution reserves to the states all powers not specifically delegated to the federal government. Rehnquist was merciless in dismissing the attempt by prosecutors to justify their case under the Commerce Clause. The Constitution, Rehnquist wrote, “creates a Federal Government of enumerated powers.” He quoted James Madison’s famous message to the people of New York, in Federalist 45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

This constitutionally mandated division of authority, he added, quoting earlier high court warnings on the point, “was adopted by the Framers to ensure protection of our fundamental liberties.” He quoted precedent: “Just as the separation and independence of the coordinate branches of the Federal Government serves to prevent the accumulation of excessive power in any one branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.”

Those kinds of issues were what Rehnquist was referring to when he wrote, in Lopez, “We start with first principles.” They defined Rehnquist’s life on the bench. But were they what the firm of Schumer, Leahy, Reid & Kennedy was talking about when it extolled a chief justice who, say, never accepted Roe v. Wade as settled law? No doubt we’ll find out at the hearings in respect of Judge Roberts. Critics of Rehnquist were caviling over the weekend that he’d never really dominated the court of which he was chief. But it certainly can be said of him that he set a standard in regard to first principles that current and future justices will have a hard time matching.