REHNQUIST ON LOSING END OF RIGHTS CASES

WASHINGTON (AP) -- In what may be his last term, Chief Justice William H.
Rehnquist's legacy of limiting the federal government's reach has been
tarnished as the states' rights coalition he nurtured for more than a
decade splinters on some major issues.

The latest example is the Supreme Court decision that a federal marijuana
ban trumps state laws legalizing the drug for the seriously ill.

Rehnquist also was on the losing side this year in cases that struck down
state laws on wine purchases and declared it unconstitutional for states to
execute juvenile killers.

"In case after case after case in recent years, the strong federalist
position doesn't seem to be winning out," said Richard Garnett, a former
Rehnquist clerk who teaches at Notre Dame Law School.

The chief justice has been the leader of the "federalist five," the five
conservatives who generally support states' rights and advocate limited
federal government interference.

Those five -- Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia,
Anthony Kennedy and Clarence Thomas -- have voted together to strike down
federal laws intended to protect female victims of violent crime and keep
guns away from schools. Their reasoning is that those issues are better
dealt with at the local level.

Scalia and Kennedy parted ways with the five in Monday's ruling giving
federal authorities the power to punish sick people who smoke marijuana to
ease pain even if they live in states with "medical marijuana" laws.

Rehnquist, O'Connor and Thomas warned that the court was inviting Congress
to pass intrusive laws.

A ruling for California in the marijuana case would have sealed the
Rehnquist states' rights legacy. But that was not expected, in part because
the politics of the medical marijuana issue made it tougher for the five
justices to stay together.

"So far he (Rehnquist) has been able to get five votes for very small, more
or less symbolic restraints on Congress," said Nelson Lund, a law professor
at George Mason University. "It's what I call fig leaf federalism."

Thomas Goldstein, a Washington lawyer who specializes in the Supreme Court,
said, "It's not for lack of leadership. Instead, a majority of the court
simply isn't as conservative yet as the chief justice."

The four justices who comprise the court's more liberal wing -- John Paul
Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer --
consistently vote together in cases that test the federal government's power.

They were united on Monday in another decision that Rehnquist disagreed
with, a ruling siding with the federal government in a dispute over
ownership of submerged lands in Glacier Bay National Park. Rehnquist,
Scalia and Thomas filed a partial dissent supporting Alaska.

Kennedy wrote the Alaska decision. The moderate conservative also wrote the
5-4 wine decision that critics said usurped a state's right to control
alcohol. And he penned the 5-4 ruling that threw out the sentences of 72
death row inmates who were under 18 when they committed their crimes.

Craig Bradley, a law professor at Indiana University and former Rehnquist
law clerk, said the chief justice has "an incredibly strong- minded court
to deal with."

O'Connor, also more moderate than the chief justice, has stranded Rehnquist
in major federalism cases before. Last year, for example, she joined the
four liberal justices in ruling that disabled people can use a federal law
to sue states over inadequate accommodations in courthouses.

Garnett said a big test may come next term, when justices consider the Bush
administration's challenge to Oregon's unique law allowing
physician-assisted suicide. Justices will also take up a case that asks if
states can be sued for not accommodating disabled prisoners.

The next term starts in October, and the court may have a leadership change
before then. Rehnquist has thyroid cancer and is 80. He has been on the
court 33 years, and since 1986 has been chief justice.

Despite the recent losses, "the Rehnquist federalism jurisprudence is still
there," said Thomas Lee, a law professor at Fordham University and former
clerk to Souter.