My mother always told me that when a person dies, one should not say anything bad about him. My mother was wrong. History requires truth, not puffery or silence, especially about powerful governmental figures.
And obituaries are a first draft of history. So here's the truth about Chief Justice Rehnquist you won't hear on Fox News or from politicians. Chief Justice William Rehnquist set back liberty, equality, and human rights perhaps more than any American judge of this generation. His rise to power speaks volumes about the current state of American values.
Let's begin at the beginning. Rehnquist bragged about being first in his class at Stanford Law School. Today Stanford is a great law school with a diverse student body, but in the late 1940s and early 1950s, it discriminated against Jews and other minorities, both in the admission of students and in the selection of faculty.
Justice Stephen Breyer recalled an earlier period of Stanford's history:
"When my father was at Stanford, he could not join any of the social organizations because he was Jewish, and those organizations, at that time, did not accept Jews."
Rehnquist not only benefited in his class ranking from this discrimination; he was also part of that bigotry. When he was nominated to be an associate justice in 1971, I learned from several sources who had known him as a student that he had outraged Jewish classmates by goose-stepping and heil-Hitlering with brown-shirted friends in front of a dormitory that housed the school's few Jewish students. He also was infamous for telling racist and anti-Semitic jokes.
As a law clerk, Rehnquist wrote a memorandum for Justice Jackson while the court was considering several school desegregation cases, including Brown v. Board of Education. Rehnquist's memo, entitled "A Random Thought on the Segregation Cases," defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson. Rehnquist concluded the Plessy "was right and should be reaffirmed." When questioned about the memos by the Senate Judiciary Committee in both 1971 and 1986, Rehnquist blamed his defense of segregation on the dead Justice, stating - under oath - that his memo was meant to reflect the views of Justice Jackson. But Justice Jackson voted in Brown, along with a unanimous Court, to strike down school segregation. According to historian Mark Tushnet, Justice Jackson's longtime legal secretary called Rehnquist's Senate testimony an attempt to "smear the reputation of a great justice." Rehnquist later admitted to defending Plessy in arguments with fellow law clerks. He did not acknowledge that he committed perjury in front of the Judiciary Committee to get his job.
The young Rehnquist began his legal career as a Republican functionary by obstructing African-American and Hispanic voting at Phoenix polling locations ("Operation Eagle Eye"). As Richard Cohen of The Washington Post wrote, "[H]e helped challenge the voting qualifications of Arizona blacks and Hispanics. He was entitled to do so. But even if he did not personally harass potential voters, as witnesses allege, he clearly was a brass-knuckle partisan, someone who would deny the ballot to fellow citizens for trivial political reasons -- and who made his selection on the basis of race or ethnicity." In a word, he started out his political career as a Republican thug.
Rehnquist later bought a home in Vermont with a restrictive covenant that barred sale of the property to "any member of the Hebrew race."
Rehnquist's judicial philosophy was result-oriented, activist, and authoritarian. He sometimes moderated his views for prudential or pragmatic reasons, but his vote could almost always be predicted based on who the parties were, not what the legal issues happened to be. He generally opposed the rights of gays, women, blacks, aliens, and religious minorities. He was a friend of corporations, polluters, right wing Republicans, religious fundamentalists, homophobes, and other bigots.
Rehnquist served on the Supreme Court for thirty-three years and as chief justice for nineteen. Yet no opinion comes to mind which will be remembered as brilliant, innovative, or memorable. He will be remembered not for the quality of his opinions but rather for the outcomes decided by his votes, especially Bush v. Gore, in which he accepted an Equal Protection claim that was totally inconsistent with his prior views on that clause. He will also be remembered as a Chief Justice who fought for the independence and authority of the judiciary. This is his only positive contribution to an otherwise regressive career.
Within moments of Rehnquist's death, Fox News called and asked for my comments, presumably aware that I was a longtime critic of the late Chief Justice. After making several of these points to Alan Colmes (who was supposed to be interviewing me), Sean Hannity intruded, and when he didn't like my answers, he cut me off and terminated the interview. Only after I was off the air and could not respond did the attack against me begin, which is typical of Hannity's bullying ambush style. He is afraid to attack when there's someone there to respond. Since the interview, I've received dozens of e-mail hate messages, some of which are overtly anti-Semitic. One writer called me "a jew prick that takes it in the a** from ruth ginzburg [sic]." Another said I am "an ignorant socialist left-wing political hack. You're like a little Heinrich Himmler! (even the resemblance is uncanny!)." Yet another informed me that I "personally make us all lament the defeat of the Nazis!" A more restrained viewer found me to be "a disgrace to the Law, to Harvard, and to humanity."
All this, for refusing to put a deceptive gloss on a man who made his career undermining the rights and liberties of American citizens.
My mother would want me to remain silent, but I think my father would have wanted me to tell the truth. My father was right.
The death of Chief Justice William Rehnquist amid the agony of New Orleans is a sad and pathetic coincidence: politics-as-usual intruding upon unspeakable horror. But look back at the life of Rehnquist and the life of New Orleans and it is possible to discern a moment in which the biographies of this judge and this city collided.
In 1890, Louisiana passed its first Jim Crow transportation laws. A courageous committee of New Orleans African-Americans and Creoles went to court to challenge the railroad segregation laws. As a test case in 1892, Homer Plessy went to the New Orleans railway station, bought a ticket and was arrested for boarding the whites-only car. His appeal, Plessy v. Ferguson, went to the United States Supreme Court, which in 1896 ruled against him, establishing racial segregation as the law of Louisiana and the law of the land.
Sixty years later, in 1952, young William Rehnquist went to Washington as a clerk to Justice Robert Jackson. The Court that year was considering Brown v. Board of Education. The young Rehnquist took it upon himself to write a now-notorious memo to his boss, arguing mightily that Plessy, the New Orleans segregation precedent, "was right and should be reaffirmed." Rehnquist lost the argument with his boss, but spent the rest of his career assailing what he later called "attempts on the part of this court to protect minority rights."
Chief Justice Rehnquist embodied the historical trajectory, political obsessions and strategic cunning of the conservative counter-revolution. As a clerk in the 1950s, he railed not only against Brown, but against justices on the court whom he called "old women," who were reluctant to swiftly execute Julius and Ethel Rosenberg. In retrospect, that clerkship with Jackson was the Big Bang of Rehnquist's mental universe: It unleashed the political and legal preoccupations--turning back civil rights, empowering the national security state, removing impediments to vigorous punishment--which nourished Rehnquist for decades. In the end no one, not even Ronald Reagan, cast such a long shadow over the Constitution as William Rehnquist.
Much was made, in the hours after Rehnquist's death, of his roles in Bush v. Gore and in presiding over President Clinton's impeachment trial. But for all the partisan passions involved, Bush v. Gore and impeachment were sideshows to the main event of Rehnquist's career: dismantling the New Deal-Warren Court edifice of expansive civil rights laws and progressive federal government. As a Republican lawyer in Phoenix, Rehnquist fought against the desegregation of public accommodations, and challenged the qualifications of black voters in the polling place. As Richard Nixon's Deputy Attorney General, Rehnquist drew the legal map for the greatest grab of presidential power in history, defending Nixon's unauthorized invasion of Cambodia, his widespread wiretapping and the break-ins directed at political dissidents and preventative detention. Appointed Associate Justice by Nixon in 1972, he escaped being directly tainted by the Watergate cover-up--though the scandal had been driven by the very surveillance practices he had helped establish.
As Associate Justice and then Chief, Rehnquist cannily shaped a new and frankly contradictory theory of federalism--at first as a frequent dissenter against the twilight of Supreme Court liberalism, and increasingly, after 1980, in the majority. He fought for limiting the power of Congress and federal courts to enforce civil rights, desegregate schools or regulate business in the public interest.
He was equally fierce in his commitment to policing, prisons and every element of social control: undercutting the Miranda ruling's limitations on search-and-seizure; carving out exceptions to the exclusionary rule and upholding pretrial detention; opposing gay rights and dissenting twice against the legalization of abortion, first in Roe v. Wade in 1972 and again twenty years later in Planned Parenthood v. Casey. Rehnquist voted with the court majority in 1976 to restore capital punishment after its four-year abolition from the American landscape. When it came to the death penalty, Rehnquist remained pitiless to the end. He upheld the death penalty for minors and the retarded, writing in Herrera vs. Collins in 1992 that new evidence of innocence is no bar to execution.
Rehnquist's presence on the Supreme Court when Reagan arrived in Washington made him the key figure in the long strategy to establish permanent Republican control of all three branches of the federal government. It is striking how beneath his constitutional arguments, so many of Rehnquist's dissents and majority opinions track back to the politics of resentment and fear played so effectively Nixon, Reagan and both Bushes: white resentment of civil rights, corporate resentment of regulation, fear of crime, fear of sexuality.
Rehnquist's success at transferring this frankly political strategy to the judiciary made him the role model for the young Turks who arrived in Washington with Reagan--Ken Starr, Clarence Thomas, Theodore Olson--and have never left. The Chief Justice's legacy thus includes not only his own body of opinions and dissents but also the potent Republican judicial patronage machine. This is the locus his real influence over Bush v. Gore and Clinton's impeachment. John G. Roberts Jr., once Rehnquist's clerk, is now his nominated but as-yet-unconfirmed successor. His rulings and briefs give every indication that he is a true acolyte: expansive in his views of executive power, derisive when it comes to limits on law enforcement, restrictive in his view of federal courts' civil rights authority.
The terrible events of recent days should force the entire country to look back at where such doctrines, taken for granted in the Rehnquist era, come from and where they lead. That means looking back at New Orleans 110 years ago. It is heartbreaking to imagine a black New Orleans so proud and idealistic that it could not imagine the Supreme Court would betray its aspirations. It is sobering to look back at New Orleans, not just as the beloved city of jazz and restaurants but as the legal birthplace of Plessy vs. Ferguson and thus of the Supreme Court's approval of racial segregation and of the state's rights theories that served as segregation's bulwark.
And it is important to remember that William Rehnquist showed so little regard for the social consequences that follow from his unrelenting application of conservative legal theory. The legacy of segregation, of "states' rights," of "limited government," is visible in the ranks of the dead and those made homeless by this storm. To look back is to look forward with clear eyes. But like his mentor, Justice Rehnquist, Judge Roberts pledged himself to the conservative faith as a young man, and has never once looked back.