World-Herald "Heils" Rehnquist

Chief Justice of the U.S. Supreme Court William Rehnquist died this weekend. The Omaha World-Herald mourns his passing in its Tuesday editorial:

William Rehnquist leaves behind a formidable judicial legacy. His record can be best understood as providing a needed correction to two important shortcomings he witnessed during his professional life: the excesses of Warren Court liberalism, and the administrative bumbling of Earl Warren's successor as chief justice, Warren Burger.

Under Rehnquist, the nation's highest court moved back to a sensible center. In contrast to the dreaminess of Warren court jurisprudence, the court majority under Rehnquist insistently signaled that the soundest constitutional approach is often an incremental one of narrowly drawn rulings. Prudence, of a moderate conservative sort, became the order of the day, and the nation was better for it....

The Supreme Court is ever a work in progress. So, with the death of Rehnquist and the retirement of O'Connor, the court is about to step forward into a new era, with new personalities, a new institutional dynamic and, perhaps, a new tone in interpreting the law.

In looking back at Rehnquist's legacy, Americans can see that there is much to be said for the benefits of prudence, moderation and balance.

It would be interesting to hear the World-Herald actually try and defend its attack on the "liberal" Warren Court for all its excesses and dreaminess. What exactly do they object to - school desegregation? The end of poll taxes? A defendant's right to legal counsel? If so, Rehnquist was definitely their man - Nixon's gift to the John Birch Society.

For some much-needed perspective on the real Rehnquist, the man obscured by the World-Herald's partisan white-washing of recent history, I give you famed legal scholar Alan Dershowitz:

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....

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.

What more is there to say? Even more than the company you keep, you are the heroes that you hold. I don't expect the World-Herald to speak ill of the recently-deceased, but a little bit of balance would be nice, especially when the weight of Rehnquist's personal and judicial shortcomings is so great.

And now we have Rehnquist's avowed underling John Roberts named as his successor.....ahh, what could have been if only "anybody but Bush" occupied the White House. Let us take a moment to mourn this lost opportunity for the advancement of America's ideals before taking up the fight once again.