William Rehnquist - History

William Rehnquist - History


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William Rehnquist

1924-2005

Chief Justice of Supreme Court

Jurist William H. Rehnquist was born in Milwaukee, Wisconsin on October 1, 1924. During World War II he served in the Army Air Corps as a weather observer. He returned to civilian life after the war and attended Stanford University, graduating with both a B.A. and an M.A. in 1948. He received a second M.A. in 1950.

Rehnquist returned to Stanford to earn a law degree in 1952. After graduation, he clerked for Supreme Court Justice Robert Jackson for a year. Rehnquist then settled in Phoenix, Arizona where he practiced law for 16 years until being appointed Assistant Attorney General by President Nixon in 1969.

Nixon nominated him as Associate Justice in 1971 and in 1986, he was nominated by President Reagan to become Chief Justice of the Supreme Court. Rehnquist presided over a steady rightward turn of the Court. In his last year of life he fought cancer and died while still being Chief Justice


William Rehnquist

history’s prominent figures. Two men in particular, Earl Warren and William Rehnquist ruled the American legal and political scene for nearly 35 years. Warren, serving from 1953-1969, presided over landmark cases of segregation (Brown v. Board of Education) and criminal rights (Miranda v. Arizona) Rehnquist, who is the fourth-longest serving chief justice in court history (1986-2005), steered the Court to a more conservative approach and presided over the nation’s second presidential impeachment trial. The two men alike made their mark on the lives of Americans and the stories of their reign over the court are as&hellip


Contents

Rehnquist joined the Court in 1972 after Richard Nixon appointed him as an Associate Justice, and Rehnquist remained in that position until Ronald Reagan elevated him to the position of Chief Justice in 1986, when Warren Burger retired. Rehnquist's vacant Associate Justice seat was filled by Antonin Scalia. The Rehnquist Court thus began with Scalia and eight members of the Burger Court: Rehnquist, William Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Powell, John Paul Stevens, and Sandra Day O'Connor.

Powell retired in 1987 President Reagan's nomination of Robert Bork was defeated by the Senate, and his second nominee, Douglas Ginsburg, withdrew before a vote. Reagan's third nominee, Anthony Kennedy, was confirmed by the Senate. Brennan retired in 1990 and Marshall in 1991, giving President George H.W. Bush the opportunity to appoint Justices David Souter and Clarence Thomas. White retired in 1993 and Blackmun retired in 1994, and President Bill Clinton appointed Justices Ruth Bader Ginsburg and Stephen Breyer to replace them.

The composition of the Supreme Court remained unchanged for the balance of the Rehnquist era, which ended when Rehnquist died in September 2005. He was succeeded by the current Chief Justice, John Roberts, who was appointed to the position by George W. Bush.

Timeline Edit

Presidents during this court included Ronald Reagan, George H. W. Bush, Bill Clinton, and George W. Bush. Congresses during this court included the 99th through the 109th United States Congresses.

The Rehnquist Court issued several notable rulings touching on many aspects of American life. Landmark cases of the Rehnquist Court include: [3] [5] [6]

  • Texas v. Johnson (1989): In a 5–4 decision written by Justice Brennan, the Court struck down a state law that prevented the burning of the American flag. The court held that the act of burning the flag is protected speech under the First Amendment. In a subsequent case, United States v. Eichman (1990), the court struck down a similar federal statute.
  • Planned Parenthood v. Casey (1992): In a plurality opinion jointly written by Justices O'Connor, Kennedy, and Souter, the court upheld the constitutional right to have an abortion established in Roe v. Wade (1973). However, Casey replaced the strict scrutiny standard of judicial review set out in Roe with the less stringent undue burden standard, giving states more leeway in placing restrictions on abortion (e.g. states can require a 24-hour waiting period).
  • United States v. Lopez (1995): In a 5–4 decision written by Justice Rehnquist, the court struck down the Gun-Free School Zones Act of 1990 as an unconstitutional extension of Congressional power. Notably, this case marked the first time since the advent of the New Deal that the court struck down a law based on the Commerce Clause. [3] The law in question made it a federal crime to have a handgun near or in a school, and the Court held that possession of a handgun is not an economic activity and does not have a substantial effect on interstate commerce.
  • United States v. Morrison (2000): In a 5–4 decision written by Justice Rehnquist, the court struck down portions of the Violence Against Women Act of 1994 as an unconstitutional extension of Congressional power. As in Lopez, the court ruled that Congress had attempted to stretch the Commerce Clause beyond its constitutional meaning, and it struck down the federal provision that allowed victims of gender-motivated violence to sue their attackers in federal court.
  • Bush v. Gore (2000): In a controversial per curiam decision in which four justices dissented, the Supreme Court overruled the Florida Supreme Court and halted a manual recount of the 2000 presidential election ballots cast in Florida. The court ruled that the recount violated the Equal Protection Clause as Florida lacked a statewide standard for recounting votes, and also ruled that no recount could possibly take place before the statutory "safe harbor" deadline. Without a recount, Republican George W. Bush won Florida's electoral votes and the presidency.
  • Grutter v. Bollinger (2003): In a 5–4 decision written by Justice O'Connor, the court upheld the affirmative actionadmissions policy of the University of Michigan Law School on the grounds that the law school had a compelling interest in promoting class diversity. The court held that schools could use race as a factor in admissions, so long as the school did not use a quota system, which had been held to be unconstitutional in Regents of the University of California v. Bakke (1978).
  • Lawrence v. Texas (2003): In a 6–3 decision in which Justice Kennedy wrote the majority opinion, the court invalidated several state sodomy laws. Lawrence overturned Bowers v. Hardwick, a 1986 case in which the court had held that state laws criminalizing gay sexual acts were constitutional. In overturning Bowers, the court ruled that intimate consensual sexual conduct was protected by substantive due process under the Fourteenth Amendment.
  • McConnell v. FEC (2003): In a 5–4 decision written by Justices Stevens and O'Connor, the court upheld several provisions of the Bipartisan Campaign Reform Act of 2002, including its restrictions on "soft money." The court held that not all political speech is protected by the First Amendment, and that the government has a legitimate interest in preventing corruption and the appearance of corruption. The case was partially overturned by Citizens United v. FEC (2010).

Rehnquist had often been a lone conservative dissenter during the Burger Court, but the appointments of O'Connor, Scalia, Kennedy, and, perhaps most importantly, Thomas, moved the court to the right. [1] [7] Rehnquist favored returning power to the states at the expense of the federal government, and he was joined by Justices O'Connor, Scalia, Kennedy, and Thomas in striking down federal laws, [3] which the Rehnquist Court did more often than any previous court. [8] [9] These five justices formed a dominant conservative bloc, though Rehnquist was less committed to ideological purity than Scalia or Thomas, [1] and Justices Kennedy and O'Connor often served as swing votes who would side with the more liberal justices. [6] [10] O'Connor's prominence as a swing vote led some to call it the "O'Connor Court," and she wrote several important opinions. [8] Justice Stevens, the most senior associate justice during much of the Rehnquist Court, led the liberal bloc, which also included Justices Souter, Ginsburg, and Breyer. [11] Stevens was often successful in winning over either or both of O'Connor and Kennedy in order to stymie the agenda of the court's conservative bloc. [12] Of the nine justices who served from 1994-2005, seven had been appointed by Republican presidents, and the relative liberalism of some of those justices (particularly Stevens and Souter) frustrated many in the Republican Party. [13]


William Rehnquist, Historian

The book seems to argue that in times of crisis the Supreme Court should take a strong role in settling political impasses.

I don't think so. Because to me some of the other extrajudicial services the judges have been put in are probably not good for the court. I think you can argue back and forth about [Justice Robert H.] Jackson's role in Nuremberg, I think you can argue back and forth about Earl Warren's role in heading up the Warren Commission, and Owen Roberts's heading up the Roberts Commission right after Pearl Harbor.

I don't think you can say it's desirable that individual justices get into things simply when asked by the president. I don't think it's desirable for the court to wade into something just because it seems to be very controversial. I do think that in this particular instance in 1876, what they probably did was not good for the court, but I think it was good to the country. It probably averted a situation that could have resulted in violence.

It seems that in the 2000 election the court took a markedly more proactive role.

I don't really want to discuss the ins and outs of Bush against Gore.

In the book you mention Bush versus Gore a couple of times in the context of the severe criticism that some people directed at the court, your court, in the 2000 decision. What role did public outrage play in your writing this book?

None. We frequently get strong criticism of our decisions. But we certainly don't change our minds because of public criticism. Otherwise a lot of very important cases would come out the other way.

There is a forthcoming review in The Nation by Eric Foner, a professor at Columbia University.

He's a recognized historian.

One of the things that he says about your book is that it is"an elaborate though indirect apologia" for the court's decision in Bush versus Gore.

I really don't think they have anything to do with each other. But I'm glad to know the book is being reviewed someplace.


Did William Rehnquist Embrace Plessy v Ferguson?

When the Supreme Court decided Brown vs. Board of Education on this day in 1954, it overruled Plessy vs. Ferguson, one of the most infamous decisions in the history of the court.

In that case, which dated back to 1896, the court ruled that the Constitution allowed the prosecution of a 30-year-old African American shoemaker named Homer Plessy for refusing to sit in the "colored" car on the train.

The Plessy decision enshrined the idea of "separate but equal" for more than half a century. Justice Henry Brown's opinion for the majority concluded that although the 14th Amendment was clearly meant to "enforce the absolute equality of the two races before the law," it couldn't possibly have been meant to abolish "distinctions based upon physical differences," or to enforce "social equality," or to require "a commingling of the two races upon terms unsatisfactory to either."

Brown vs. Board of Education changed all that, with all nine justices agreeing that enforced separation was, in fact, "inherently unequal." In the years that followed, the court, led by Chief Justice Earl Warren, struck down segregation everywhere. It insisted on compulsory desegregation -- requiring busing, if necessary, to do so. It struck down poll taxes and called for a rule of one person, one vote, knowing this would help equalize the political power of African Americans.

But since then, things have radically changed again. Under the leadership of Chief Justice William H. Rehnquist, the court has abandoned the minority-protecting role assumed by the Warren court. What happened?

A clue comes from a provocative and uncannily prescient memorandum written by a young law clerk for Justice Robert H. Jackson in 1952, during early deliberations that led to the Brown decision, well before Jackson had made up his mind about segregation. The memo was called "A Random Thought on the Segregation Cases." It was initialed at the bottom, "whr," signaling that it had been written by none other than William H. Rehnquist, still less than 30 years old and two decades away from being appointed to the court.

Rehnquist's memo unambiguously stated that "Plessy vs. Ferguson was right and should be reaffirmed." It acknowledged that this "is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues." But in its key passage, it insisted that "one hundred and fifty years of attempts on the part of this court to protect minority rights of any kind -- whether those of business, slaveholders, or Jehovah's Witnesses -- have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men."

Rehnquist went on: "To the argument . that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

Rehnquist's memo concluded that the court should uphold segregation and refuse to protect "special claims" merely "because its members individually are 'liberals' and dislike segregation."

There is no doubt that Rehnquist wrote this memo. But was he speaking for himself?

Testifying before the Senate in 1971, the year he was nominated to the court, Rehnquist said the memo "was prepared by me at Justice Jackson's request it was intended as a rough draft of a statement of his views . rather than as a statement of my views."

Many historians, however, have concluded that Rehnquist's memory was inaccurate and that his memo contained his own thoughts, not a record of Jackson's. Consider the words, "it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues." This sounds like Rehnquist, not Jackson -- a conclusion strengthened by a 1957 Rehnquist essay complaining of "the 'liberal' point of view which commanded the sympathy of a majority of the clerks I knew."

Either way, Rehnquist's memo captures much of the thinking of the court today.

Rehnquist has argued long and hard against efforts to extend Brown or to use the Constitution to protect politically weak groups -- African Americans, women, handicapped people, gays and lesbians. Often he has objected to "attempts on the part of this court to protect minority rights."

Half a century after Brown, those concerned with racial equality now find that they do best when they resort to political, rather than judicial, channels. Of course Brown remains the law segregation is unconstitutional. But the 1952 memo has turned out to be a self-fulfilling prophecy: Under Rehnquist's leadership, the role assumed by the Warren court, and signaled above all by Brown, did indeed "fade in time."


More Comments:

James Stanley Kabala - 1/12/2005

Yes, that was a somewhat silly remark on Tushnet's part. One can disagree about whether Clinton's actions merited impeachment, but the impeachment was based on actions that had actually occurred it wasn't just made up out of thin air. If the Republicans had been determined to impeach Clinton regardless of his actions, they would have done it in 1995, not 1998.

Jonathan Pine - 1/11/2005

Oops, strike out `2nd amendment`

Jonathan Pine - 1/11/2005

In Clinton's case it sort of depended on something else. And the answer to that is essentially an issue of language and semantics of what the framers meant in the Second Amendment language.

John H. Lederer - 1/10/2005

"One can wonder, though, what would happen were a Democrat to regain the presidency while Congress and the Supreme Court remained in the hands of modern Republicans. (One would reasonably anticipate another impeachment proceeding, but that’s another matter.)"


Wouldn't that sort of depend on whether the President commits a felony?


Telling the Truth About Chief Justice Rehnquist

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.

Alan Dershowitz is a professor of law at Harvard. His latest book is The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved (Wiley, 2005).


William Bradford

William Bradford (1590-1657) was a founder and longtime governor of the Plymouth Colony settlement. Born in England, he migrated with the Separatist congregation to the Netherlands as a teenager. Bradford was among the passengers on the Mayflower’s trans-Atlantic journey, and he signed the Mayflower Compact upon arriving in Massachusetts in 1620. As Plymouth Colony governor for more than thirty years, Bradford helped draft its legal code and facilitated a community centered on private subsistence agriculture and religious tolerance. Around 1630, he began to compile his two-volume “Of Plymouth Plantation,” one of the most important early chronicles of the settlement of New England.

Born of substantial yeomen in Yorkshire, England, Bradford expressed his nonconformist religious sensibilities in his early teens and joined the famed Separatist church in Scrooby at the age of seventeen. In 1609 he immigrated with the congregation, led by John Robinson, to the Netherlands. For the next eleven years he and his fellow religious dissenters lived in Leyden until their fear of assimilation into Dutch culture prompted them to embark on the Mayflower for the voyage to North America.

Did you know? William Bradford&aposs descendants include Noah Webster, Julia Child and Supreme Court Justice William Rehnquist.

The Pilgrims arrived in what became Plymouth, Massachusetts, in 1621 with a large number of non-Separatist settlers. Before disembarking, the congregation drew up the first New World social contract, the Mayflower Compact, which all the male settlers signed.

Bradford served thirty one-year terms as governor of the fledgling colony between 1622 and 1656. He enjoyed remarkable discretionary powers as chief magistrate, acting as high judge and treasurer as well as presiding over the deliberations of the General Court, the legislature of the community. In 1636 he helped draft the colony’s legal code. Under his guidance Plymouth never became a Bible commonwealth like its larger and more influential neighbor, the Massachusetts Bay Colony. Relatively tolerant of dissent, the Plymouth settlers did not restrict the franchise or other civic privileges to church members. The Plymouth churches were overwhelmingly Congregationalist and Separatist in form, but Presbyterians like William Vassal and renegades like Roger Williams resided in the colony without being pressured to conform to the majority’s religious convictions.

After a brief experiment with the 𠇌ommon course,” a sort of primitive agrarian communism, the colony quickly centered around private subsistence agriculture. This was facilitated by Bradford’s decision to distribute land among all the settlers, not just members of the company. In 1627 he and four others assumed the colony’s debt to the merchant adventurers who had helped finance their immigration in return for a monopoly of the fur trading and fishing industries. Owing to some malfeasance on the part of their English mercantile factors and the decline of the fur trade, Bradford and his colleagues were unable to retire this debt until 1648, and then only at great personal expense.

Around 1630 Bradford began to compile his two-volume Of Plymouth Plantation, 1620-1647, one of the most important early chronicles of the settlement of New England. Bradford’s history was singular in its tendency to separate religious from secular concerns. Unlike similar tracts from orthodox Massachusetts Bay, Bradford did not interpret temporal affairs as the inevitable unfolding of God’s providential plan. Lacking the dogmatic temper and religious enthusiasm of the Puritans of the Great Migration, Bradford steered a middle course for Plymouth Colony between the Holy Commonwealth of Massachusetts and the tolerant secular community of Rhode Island.

The Reader’s Companion to American History. Eric Foner and John A. Garraty, Editors. Copyright © 1991 by Houghton Mifflin Harcourt Publishing Company. All rights reserved.


Gorsuch, Thomas, Rehnquist and beyond: A short history of right-wing lies in Supreme Court confirmation hearings

By Paul Rosenberg
Published March 26, 2017 4:00PM (EDT)

William Rehnquist John Roberts Clarence Thomas (AP/Larry Downing/Susan Walsh)

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As Neil Gorsuch tries to avoid confronting his record in his campaign to steal Merrick Garland’s Supreme Court seat, it’s helpful to gain a broader view of a profoundly deceptive multi-decade conservative drama, in which this episode is but one tiny part. To understand that drama, we must begin with what it has risen up against.

In 1954, something truly remarkable happened. While America’s political system was still being held hostage by proud, self-identified racists, a full decade after we fought Nazi Germany in World War II, a bipartisan Supreme Court unanimously declared that segregated schools were unconstitutional in Brown vs. Board of Education . A court full of Franklin D. Roosevelt and Harry Truman appointees, with some strongly differing perspectives on law, was unable to reach a decision in early 1953. After the Republican governor of California, Earl Warren, was appointed chief justice by President Dwight Eisenhower, the case was reargued, and he corralled the disparate elements to a point of unanimity that left no doubt that an epochal page of history had been turned.

Although four other Eisenhower appointees would eventually join Warren on the court, his tenure there remained a beacon of liberal jurisprudence, which conservatives have battled back against ever since. You cannot really understand anything about the Supreme Court nomination process today if you turn a blind eye to this history. After Warren departed, Nixon tried to appoint two segregationists — G. Harrold Carswell and Clement Haynsworth — but they were both rejected. Shortly after that, Nixon nominated Lewis Powell (approved 89-1) and William Rehnquist (approved 68-26, the most ‘no’ votes of any successful nominee since 1930). Rehnquist was opposed by a record number of unions and organizations, including the NAACP, and lied about two significant racial aspects of his record. From then onward, one form of lie or another has figured significantly in the persistent conservative battle to turn back the hands of time and reverse the Warren court’s shining legacy that began with the Brown decision.

Generally speaking the lies take two main forms: a variety of different narrow lies about what specific individual judges have or have not done, and an array of broad lies about what judges in general should or should not do. All are variants of one big über-lie: That only conservatives act properly as judges. The first sort of lies most prominently involved Rehnquist and Clarence Thomas. The second set of lies divided neatly into two mutually contradictory clusters, one represented by Antonin Scalia, whose doctrine of "originalism" says there's only one right way for judges to approach the law (though he actually fudged things a lot, as we’ll see below), and the other represented by John Roberts (echoed by Neil Gorsuch today), who argues the exact opposite — that he uses everything he's got, and doesn't really have a philosophy at all, and it would be wrong if he did.

In between these two broad types of lies, there was one nominee who did not lie well at all: Robert Bork, whose nomination proved to be a turning point. With Bork, the lie machinery broke down, and he was rejected in a rare example of genuine public scrutiny and reflection. That resulted in a far more sophisticated approach to lying, both in the confirmation process itself, and in justifying judicial conservatism overall. To understand where we stand today, a review of all those mentioned will be helpful.

Rehnquist’s Racist Record Denied

In his two confirmation hearings Rehnquist lied about two separate issues. First, he lied about his personal, adversarial involvement in voter suppression efforts aimed at minority voters in Arizona in the late 1950s and early '60s. Rehnquist admitted being involved in the efforts, but only as a legal advisor, while a former assistant U.S. attorney, James Brosnahan, and other eyewitnesses testified that Rehnquist had been personally involved in challenging and intimidating individual voters. Joe Conason gave an account of this in a 2004 Salon story

Under oath, Rehnquist denied Brosnahan’s charges, and based on conflicting testimony from other witnesses, the issue was left sufficiently murky for the Republican-dominated Senate to confirm him. But in his 2001 account of that nomination battle, "The Rehnquist Choice," former Nixon White House counsel John W. Dean concluded that Rehnquist — who said he didn’t “remember” engaging in voter challenges — had almost certainly lied to the Senate.

What’s more, a contemporaneous 1986 account from the Los Angeles Times provided first-hand testimony against Rehnquist from multiple witnesses. Those witnesses supporting Rehnquist were purely suppositional in character, and hence provided no true evidence at all.

The most obvious explanation is that Rehnquist and his supporters did not want us to know his actual record. But it wasn't just his deeds they wanted hidden: it was also both his heart and his mind. In a 2005 Huffington Post article, Alan Dershowitz discussed the importance of a controversial memo Rehnquist wrote for Justice Robert Jackson in the 1950s:

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.

A devastating 2003 blog post from Brad DeLong includes an excerpt from Richard Kluger's 1977 book, " Simple Justice ," which presents some damning evidence against Rehnquist's claim. As with the Arizona voter suppression case, it seems clear that if these issues had been raised in a trial court setting, Rehnquist could not have sustained his claims. It was the institutional presumptions surrounding the confirmation process that shielded him from the kind of scrutiny that could have led to a full disclosure of what had actually happened.

The Lies of Clarence Thomas and the Truths of Robert Bork

A very similar dynamic occurred in 1991, when Clarence Thomas escaped from facing testimony about his pattern of sexual harassment in the workplace. The accusations against him made by Anita Hill had leaked out and caused a furor, but a similar accusation from another woman, Angela Wright, was buried by the Senate Judiciary Committee, under the leadership of Joe Biden. In 2010, Steve Kornacki wrote an excellent summary for Salon of the overwhelming evidence against Thomas and how it was buried:

But Thomas also lied about another matter as well, when he claimed he had not debated Roe vs. Wade, and did not have an opinion about it — making him virtually unique among his law school cohort. But it was not just implausible there is considerable evidence — both direct and indirect — that Thomas was lying about this as well. He developed strong opinions immediately after joining the court, for one thing.

n his 2001 biography of Justice Thomas , Andrew Peyton Thomas (no relation) reports three witnesses contradicting his self-characterization: Mike Boicourt, who served with Thomas in the Missouri attorney general's office, Reagan's Assistant Attorney General William Bradford and conservative media figure Armstrong Williams. Although the author chooses to soft peddle his conclusions, their testimony speaks for itself: Thomas had strong feelings about abortion and how Roe was decided long before he told the S enate otherwise.

Robert Bork was sandwiched in between Rehnquist's nomination as chief justice in 1986 and Thomas’ nomination in 1991. The rough reception he received — actually being asked tough questions about his record, particularly by Ted Kennedy — went a long way toward shaping how future conservative justices would be presented. Thomas was one example: a black conservative using his skin color to inoculate himself against liberal criticism, as he succeeded Thurgood Marshall, and proceeded to fight viciously against everything Marshall had stood for.

Thomas further backed this up with an elaborate narrative of personal hardship, hard work and struggle against racism, for which he blamed liberals more than conservatives. It was rhetorically effective — thanks especially to Joe Biden — but not the sort of strategy that could easily be duplicated by others.

It’s important to recall what really happened with Bork. As Scott Lemieux summarized :

Kennedy's opposition was based on Bork's public record . Bork did publicly denounce the Civil Rights Act as not merely unconstitutional but based on a principle of " unsurpassed ugliness ." He did advocate for an extremely cramped interpretation of most civil liberties. He did believe that the Constitution provided no protection for a right to privacy. Republicans might have preferred that Kennedy not outline the consequences of these beliefs, but there's no reason for Democrats to abjure accurate statements merely because they're put in stark enough terms to be politically effective ….

"Borking" has become a conservative insult, shorthand to a political smear job. But the failure of the Bork nomination was anything but it was an important moment that, among other things, saved Roe v. Wade from almost certainly being overturned. It says something about Bork's constitutional vision that accurately restating his public views has become synonymous with the dirtiest of dirty tricks.

The Big Lie of Scalia’s “Originalism”

If Bork exposed what conservatives judicial philosophy was all about, then obviously they needed to hide it — but without being perceived as hiding it. Thomas showed one way to do that, but it wasn’t automatically replicable. What they needed was a general purpose way of getting themselves off the hook, a way of saying, “this isn’t my view, personally, this is what the law requires , period.” They needed some version of what I previously called an über-lie: that only conservatives act properly as judges

That’s where another nominee from this timeframe — Antonin Scalia, elevated right alongside Rehnquist -- comes in. Scalia’s promotion of “originalism” provided a rhetorical framework for claiming authority without responsibility: He was only following orders—the true meaning of the Constitution. Don’t argue with him, he said, in effect: Take it up with James Madison and company. Or, when it came to statutory interpretation, take it up with a Congress of yesteryear.

Things really came to a head with Scalia’s “originalism” in the Heller case, reversing centuries of precedent, and finding an individual right to gun ownership in the Second Amendment, completely disregarding all that original text talking about “A well-regulated militia.” To defend what he had done, Scalia co-authored a lengthy tome, " Reading Law: The Interpretation of Legal Texts ," which was eviscerated by conservative semi-maverick icon Judge Richard Posner, in a review scathingly titled “ The Incoherence of Antonin Scalia .”

First, Posner explains that judges like to portray themselves in a passive, constrained manner, regardless of their actual judicial philosophy:

Judges tend to deny the creative—the legislative—dimension of judging, important as it is in our system, because they do not want to give the impression that they are competing with legislators, or engaged in anything but the politically unthreatening activity of objective, literal-minded interpretation, using arcane tools of legal analysis. The fact that loose constructionists sometimes publicly endorse textualism is evidence only that judges are, for strategic reasons, often not candid.

Posner then goes on to show that Scalia's strict textual originalism makes no sense under even modest scrutiny, and he actually abandons it, but without fully admitting he's doing so.

A problem that undermines their entire approach is the authors’ lack of a consistent commitment to textual originalism. They endorse fifty-seven “canons of construction,” or interpretive principles, and in their variety and frequent ambiguity these “canons” provide them with all the room needed to generate the outcome that favors Justice Scalia’s strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights, the death penalty, and guns.

In short, Scalia himself isn’t really a textual originalist — he just played one on TV. Posner also points out the lephant in the room:

It is a singular embarrassment for textual originalists that the most esteemed judicial opinion in American history, Brown v. Board of Education , is nonoriginalist. . Had the provision been thought, in 1868, to forbid racial segregation of public schools, it would not have been ratified.

This points to an essential truth: Even when writing constitutional texts we are constrained by the limitations and blind spots of our own time. To hold us hostage to the ignorance and prejudices of the past is to forever prevent us from moving forward into a richer, freer, more equal future.

John Roberts' “Balls and Strikes” Lie

As Posner's criticism suggests, there are insoluble difficulties at the heart of Scalia’s textual originalism. One response to this was a reformulation, dubbed “the new originalism,” which is yet another scam . But the other was to embrace the “57 canons” kitchen-sink approach, and this is precisely what John Roberts — and now Neil Gorsuch, following in his footsteps — have done. They pretend to have no judicial philosophy at all, just calling “balls and strikes,” as Roberts put it. So there’s no there there for anyone to object to. Liberals, in contrast, have biases and agendas, and want to “legislate from the bench”!

But, ultimately, it’s another version of the big lie: Conservatives, one way or another, do justice properly, while liberals do not. So only conservatives should be allowed to be judges. Sometimes it’s claimed that there’s only one right way for judges to act—the old or new originalism. Other times it’s claimed that only having no fixed approach makes for fair and neutral judges — again, meaning only conservatives. Both these arguments are lies, and lies that contradict one another. They all serve to hide what conservative judges are actually doing on the bench.

But there is another alternative — the real-life actual alternative, which conservatives are desperate to obscure — and that is for a judge to guided by an overall judicial philosophy. (Indeed, without such a philosophy, the shibboleths of “following precedent” and “judicial restraint” that Roberts invoked can become meaningless.) This point was made in the wake of Roberts’ confirmation hearing by constitutional scholar Ronald Dworkin in the New York Review of Books .

Instead of the Kabuki theater confirmation hearings had become, Dworkin explained what senators should have been looking for: First, a coherent set of “convictions about the proper role of a judicially enforceable constitution in a democracy,” and second, convictions about the role of judges in supporting, promoting or defending that role. Only these sorts of broad philosophical and constitutional commitments can give order and meaning to a judge's interpretations, curbing political preferences on the one hand, while on the other giving concrete meaning to empty platitudes like “the rule of law."

Such a judicial philosophy can take various different forms, Dworkin argued. " Scalia's announced form of originalism, if in fact he held to it with any important degree of consistency, would constitute such a philosophy." But he saw another alternative:

Justice Stephen Breyer, in his recent book setting out his own constitutional philosophy, offers a more attractive example. He argues that the liberty protected by an appropriate conception of democracy embraces not only a citizen's freedom from undue government interference but a more active freedom to participate in self-government as an equal and he undertakes to show that an understanding of the Constitution as aiming to promote that form of liberty can guide constitutional adjudication in several matters, including free speech, federalism, and the constitutionality of affirmative action.

I have myself defended a similar view of the Constitution: that it aims to create what I called a "partnership" rather than a majoritarian form of democracy by insisting that all citizens are entitled to an equal role and voice in their self-government, that government at all levels must treat citizens with equal concern, and that government must leave individual citizens free to make the personal decisions for themselves that they cannot yield to others without compromising their self-respect.

One doesn’t have to agree with Dworkin or Breyer or anyone else. The point is that multiple different constitutional philosophies are tenable, not as absolutes that everyone must submit to, but as hypothetical guiding frameworks. The proper role of the Senate confirmation process ought to simply be to ensure that a judge has such a philosophy to guide them, that they are reasonably clear and consistent in their ability to articulate it, and that it be compatible with our overall sense of what our Constitution embodies.

Several years later, the Alliance for Justice published two studies addressing the problems of ignoring precedent and lack of judicial restraint in the Roberts court. The first, “ Unprecedented Injustice: The Political Agenda of the Roberts Court ” highlights some of the most significant examples of the Roberts court ignoring and overturning precedent, while the second, “ The Roberts Court’s Record of Overreaching ,” focuses on judicial activism exemplified by disregarding long-standing procedural norms that no one ever dreamed of asking Roberts about during his confirmation: Taking cases that don't require the court's intervention, addressing legal questions that aren't squarely before it, settling questions of fact rather than leaving that to trial courts, and making up new law out of thin air. What these studies showed in case after case was a pervasive pattern of actions wildly at odds with the “balls and strikes” imagery that Roberts used to get confirmed. And they were precisely what we should have expected, in light of the criticism that Dworkin offered at the time.

Three Relevant 19th Century Lies

None of this is new or surprising. If we look back to the 19 th century, we find that the two most notorious racist Supreme Court decisions — Dred Scott and Plessy v. Ferguson — both rested on lies. Not just the broadly-shared social lie of black difference and otherness, but more specific lies, as well. On top of that, a conservative judicial philosophy emerged which pretended to embody the only possible way of interpreting the law.

First, Dred Scott contained this fateful passage, at the very heart of its reasoning:

They [blacks] had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect, and that the negro might justly and lawfully be reduced to slavery for his benefit.

This was simply a lie. The abolitionist movement had already begun at the time of the Revolution, slavery was abolished in Vermont in 1777 , and was subsequently abolished in Massachusetts well before the Constitution was drafted. The later abolition came about in part due to a case involving a slave, Quock (or "Kwaku") Walker, who was promised his freedom on his 25th birthday by his first master, but denied it by his subsequent master after his first master died. When he ran away, and his new master beat him, Walker sued his master for assault and battery -- and won, with a judgment of 50 pounds. So there you have it, as plain as day: a black man with rights which the white man was bound to respect, bound by the judgment of a court.

The lies involved with Plessy are complicated, but I'll highlight two of them because of how clearly they contradict one another. The first, perhaps most central, is that discrimination only hurts blacks because blacks think that it does:

We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.

This is clearly absurd, and the justices in Plessy knew it, because they also wrote:

Legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation. If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane.

So, in the first case, it's all in black people's head. At the same time, it's far too deeply entrenched to be remedied by the Constitution. Both are obvious lies, and were obvious at the time to those not blinded by bigotry. But they are also mutually contradictory lies. A mythical "principled conservative" racist would choose either one or the other, not both.

Finally, as this brief essay from Harvard presents, a form of legal reasoning known as "classical legal thought" was formulated in the last third of the 19th century, and "dominated most American legal institutions until the 1930s," when it was displaced by the school known as "legal realism." While it had several different facets, what's most germane to our discussion here is the one described here:

Meanwhile, an influential group of law teachers was elaborating its own version of classicism. Properly organized, law was like geometry, the teachers insisted. Each doctrinal field revolved around a few fundamental axioms, derived primarily from empirical observation of how courts had in the past responded to particular sorts of problems. From those axioms, one could and should deduce - through uncontroversial, rationally compelling reasoning processes - a large number of specific rules or corollaries. The legal system of the United States, they acknowledged, did not yet fully conform to this ideal much of the scholars' energies were devoted to identifying and urging the repudiation of rules or decisions that disturbed the conceptual order of their respective fields. But once purified of such anomalies and errors, the scholars contended, the law would be "complete" (capable of providing a single right answer to every dispute) and elegant.

Although there was more to classical legal thought than that, it epitomized the overall formalist obsession, and disregard for real world concerns, that had predominated in the pre-Civil War era, and that came to the fore once again with the legal realists who challenged it. This tells us, in short, that the conservative craving for a closed, unquestionable system of legal thought is nothing to new to our post- Brown vs. Board of Education period. We have seen it before, and it has passed away before as well. The sooner we come to see through these lies, the sooner we will be rid of them.

Paul Rosenberg

Paul Rosenberg is a California-based writer/activist, senior editor for Random Lengths News, and a columnist for Al Jazeera English. Follow him on Twitter at @PaulHRosenberg.

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Supreme Court

Nominated by President Reagan, Rehnquist became Chief Justice of the U.S. Supreme Court on September 26, 1986. He became known for his often witty and self-deprecating remarks in court decisions and public statements. Rehnquist campaigned vigorously to reform criminal procedures and to reduce the number of federal death row appeals. He was an early convert to judicial restraint, and decisions throughout his career reflect his belief that federal courts should leave state affairs to local officials.

Rehnquist was the second longest-serving chief justice since Melville Fuller, who died in 1910. Diagnosed with thyroid cancer, Rehnquist continued to work and perform his duties as chief justice until nearly the end of his life. Rehnquist died at his Arlington, Virginia, home on September 3, 2005, just four weeks before his 81st birthday.



Comments:

  1. Godric

    It's regular conditionality

  2. Tolar

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  3. Garr

    This no more than conditionality

  4. Mark

    This is really surprising.

  5. Duran

    Thanks to the author for an excellent post. I read it very carefully, found a lot of important things for myself.

  6. Yora

    I waited so long and now - =)



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