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Reagan
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Alan Dershowitz: Telling
the Truth About Chief Justice Rehnquist
Sep 5, 2005
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.
Copyright © 2005 HuffingtonPost.com.
All rights reserved. The information contained in Huffington
Post commentary may not be published, broadcast, rewritten or
redistributed without prior written authority of huffingtonpost.com.
In Rehnquist's Footsteps
by BRUCE SHAPIRO, The
Nation, September 5, 2005
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.
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