William Rehnquist, still elusive

Neither John Jenkins nor his new book, The Partisan: The Life of William Rehnquist, have gotten much respect on the web. Both University of Chicago Law Professor Eric A. Posner at the sometimes liberal New Republic and Kevin R.C. Gutzman, professor of history at Western Connecticut State University, writing for the unconventionally conservative American Conservative, find that it’s Jenkins rather than Rehnquist who is the real partisan. And, in fact, Jenkins comes across as a paleo-liberal ACLU innocent str8t out of the Sixties, assuming without question that the Constitution mandates everything that liberals like and prohibits everything they don’t. Jenkins sums up Rehnquist’s career with the following haymaker, which crashes, of course, into his own jaw.

“If you were a homosexual, a racial or religious minority, a woman, an alien, an accused criminal, or someone facing the death penalty, you were not going to get Rehnquist’s vote,” Jenkins writes, blithely unaware, I would suspect, of the thesis advanced in Charles A. Beard’s once famous work, An Economic Interpretation of the Constitution, which argued that the real purpose of the Constitution was to protect the interests of rich white men, rather than “a homosexual, a racial or religious minority, a woman, an alien, an accused criminal, or someone facing the death penalty.”

Both Posner and Gutzman rather grudgingly praise Jenkins for doing serious research into Rehnquist’s life and writing a real biography rather than just a hack-job or a hit-job, though they both note that Jenkins doesn’t come close to understanding what made Rehnquist Rehnquist.

It could hardly be otherwise, because Jenkins is so consumed by his own righteousness that he can’t imagine how any honest man—any good man—could disagree with him. To Jenkins, Rehnquist is nothing more or less than a compass needle that miraculously and horribly always points south: “But to call Rehnquist a conservative would be the essence of what defined him. Rehnquist’s judicial philosophy was nihilistic at its core, disrespectful of precedent, and dismissive of social, political, and economic institutions that did not comport with his black-and-white view of the world. Rehnquist instinctively knew whose side he was on when it came to criminal and law abiders, minorities and the white majority, the poor and the rich, the powerless and the powerful.” Clearly, Jenkins cannot guess that he is staring at a negative image of himself. It was Justice Douglas, one of Jenkins’ heroes, who said he would rather set a precedent than follow one

Posner points out the occasions when Rehnquist voted the “right” (i.e., liberal) way and notes Jenkins inability to explain how or why a “judicial nihilist” would act in such a manner. But in his own treatment of Rehnquist, Posner either ignores the dark spots entirely or applies a silent coat of whitewash. For example, he tells us that Rehnquist “suffered from chronic pain and was briefly addicted to prescription painkillers, thanks to an incompetent doctor.” Actually, Rehnquist was popping pills [Placidyl] for more than eleven years, according to the FBI background report compiled prior to his nomination as Chief Justice. He started taking them on his own and ultimately had to spend a month in detox. He was a user for his first decade on the Court, as associate justice.

Posner says nothing at all about Rehnquist’s infamous memo, “A Random Thought on the Segregation Cases,” prepared when he was serving as a clerk for Justice Jackson in the early Fifties, when the Court was preparing its decision in Brown v. Board of Education, which included the following infamous passage:

Rehnquist claimed that he wrote this as an expression of Jackson’s views rather than his own, though why he would title such a document “A Random Thought” strikes me as more than dubious. What is (even) more surprising is that this is essentially an extra-constitutional argument—“It doesn’t matter what the Constitution says. The white people in the South run things, and they will run things to suit themselves.” What Rehnquist was conveying was not a “random thought,” but rather his own considered opinion, which he lied about under oath at both his appointment hearings.

As Jenkins shows, Rehnquist was already a “student” of Friedrich Hayek’s famous/infamous screed, The Road to Serfdom, before he began clerking at the Court, and if preventing white people from treating blacks like, well, like serfs, isn’t the road to serfdom, what is? As a clerk, Rehnquist clearly hated his “liberal” colleagues, all judgmental and smug and superior and ready to take on the world, when it was the people with property who deserved to run things and ought to be left alone to do whatever they damned well pleased.

Like Barry Goldwater and Ronald Reagan, Rehnquist was a defender, not of segregation but of segregationists. He engaged in endless hairsplitting—he wasn’t defending segregation, he was just saying that it was defensible. Even in theory, the notion of “separate but equal” is absurd, and in practice there was no equality at all—schools and other institutions for blacks, if they existed at all, were massively underfunded. The neo-segregationists shut their eyes to this, because they didn’t care about the rights of poor black people. They only cared about the rights of rich white people.

Even as late as 1985, Rehnquist was declaring that a “perfectly reasonable” argument against Brown v. Board of Education and in favor of Plessy could be made. Though he pretended to believe that Brown was correctly decided, he clearly didn’t. It’s fair to say that Rehnquist never stopped believing that official segregation was constitutional, as long as it disadvantaged black people. When local governments acted in ways to “disadvantage” white people—forcing them to attend integrated schools—then the Constitution was suddenly “color-blind,” forbidding any state action that used race as a category in any way, a principle that Rehnquist had never noticed before.

Gutzman, a paleo-conservative to match Jenkins’ paleo-liberalism, struggles to conceal Rehnquist’s neo-segregationism, claiming that when, in the Fifties, Rehnquist said he opposed both segregation and integration, that meant he was opposed to both “assignment of children to schools based on race, and … abolition of neighborhood schools in the name of statistical balance.” In fact, in the Fifties there was no thought of the “abolition” of neighborhood schools, no thought of forced integration. Rehnquist was simply repeating a common right-wing meme, stated more thrillingly by Barry Goldwater that he wanted “not a segregated society nor an integrated society but a free society,” because the privilege of exclusion is very dear to elites. How can you be an elite if you can’t keep people out?†

Rehnquist was still pushing the separate but equal meme as late as 1996 when he grudgingly supported the Court’s decision to require the Virginia Military Institute to admit women, but only because there wasn’t a separate but equal Virginia Military Institute for Women for them to attend. In fact, if he ever gave up on it, it was probably because the country ran out of institutions to integrate.

Neither Posner nor Gutzman bother to mention the nadir of the Rehnquist Court, if not the of the Supreme Court itself, Bush v. Gore, when distinguished jurists William Rehnquist, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Sandra O’Connor raced against the clock to prevent democracy from taking place in Florida, trampling the Constitution to shreds in the name of George W. Bush. The disgraceful performance of the Gang of Five should be a lasting reminder of the frailty of human nature.‡

Afterwords
By all accounts, Rehnquist was an outstandingly effective chief justice. He had an easy act to follow. Chief Justice Warren Burger, actually quite a moderate Republican, was like a liberal parody of a conservative—pompous, devious, and not terribly intelligent. As an associate justice, Rehnquist achieved remarkably close friendships with the liberals he always voted against. As chief justice, he managed to insulate the Court from the battles that raged outside to a remarkable degree. But the compulsively blind eye he turned to racial discrimination, and his eagerness to prevent action to correct the effects of that discrimination whenever he could, make him more remarkable than admirable. Like all conservatives, he sneered at the results-oriented decisions of the Warren Court, but he dished out plenty of his own, and in Bush v. Gore—the only Supreme Court decision ever intended not to set a precedent—he helped the Court set what one hopes is an all-time low of judicial shamelessness.