Alan Dershowitz, law professor at Harvard Law School, is highly critical of the late William H. Rehnquist, below. The unfortunate thing is that what he says contains more than a grain of truth, truth to tell.
San Francisco attorney James Brosnahan, who practiced in Phoenix for a time, testified against the confirmation of Rehnquist as Chief Justice, citing his efforts that appeared intended to deter minority voters during a presidential election there.
Rehnquist's memo declaring that Plessy's upholding of "separate but equal" on racial grounds amounts to coming out in favor of Jim Crow, that is, racial segregation anyplace it counts, i.e. that racial inferiority is real and should continue to be recognized legally. This is an old and different America that existed for far too long, and WHR was, unfortunately, in favor of it, apparently, at least when he was young and stupid.
Let's say he outgrew some of the the bad stuff on the job. He could still be counted on to favor government over minorities whenever it counted.
Out of kindness, I describe Rehnquist as a "government man," when I need to describe him, or his attitude, when reading his opinions.
Harvard Constitutional Law professor Lawrence Tribe, in an Op-Ed in the NY Times the other day, had good things to say about Rehnquist, who was, in fact, far-seeing. It's just that the telescopic vision he had was tinted in a direction that either looked back or favored the status quo. You don't look to Rehnquist opinions to find a recognition that equal rights should be extended for the first time to disfavored minorities such as women, aliens, prisoners, racial groups, etc. Rather you expect to see all the reasons why it would not be such a good idea to do this, and a good idea to let government, or the majority, working through government, to continue denying full recognition of legal rights to these folks.
Rehnquist's brand of country-club, high-precincts-of-government, and boardroom conservatism seems to have much to fear from the great unwashed. Since I identify more with the latter than the former, I wasn't a big fan of WHR.
That doesn't mean that I think his opinions should be disregarded. There is an immense streak of conservatism not only in this country and its population, but in each of us. Some of us try to temper that with what we may imagine is a commitment to humanitarian liberalism, the idea that I'm no better than the next guy, no matter what his, or her, background, and this should be reflected in developing and applying the law.
If you want to see conservative attitudes articulated clearly so you know what you are dealing with, Rehnquist is the place to go. It is difficult to achieve a liberal goal unless and until you satisfy or overcome the conservative objections.
Rehnquist was opposed to affirmative action, dissenting in the U. of Michigan (Grutter) case in 2003, and to extension of human (gay) rights in Lawrence v. Texas (2003), as did Justices Scalia and Thomas.
Affirmative action is tricky: If you believe that it was wrong to discriminate against blacks, it is difficult to believe that it's okay to discriminate against whites. Affirmative action, by definition, uses race as the basis on which to discriminate against one race in favor of another. This is impossible to reconcile with any reasonable idea of equality, so we need some other basis, not to call it a fig-leaf. How about evening the score? No, that couldn't be right. How about making up for past discrimination? Well, as Ward Connally puts it, this rewards the wrong people and punishes the wrong people. How about something else? Diversity? This was Justice Lewis Powell's idea in 1976 in Bakke v. Regents of U.C. It is now the rationale adopted in Grutter (2003). The Court was evenly divided 4:4 in Grutter when Justice O'Connor broke the tie, not very enthusiastically, it seems. She expressed the hope that in 25 years maybe the nation will have progressed in terms of racial attitude that affirmative action will no longer be necessary. Let us pray. The argument that may have tipped the court was that of the "military brief," in which top military leaders argued that in times of war when the armed services are built up, we need officers of all races to lead service members of all races, if we wish not to repeat the racial divide of Vietnam, when the officers were all white and the fighting men frequently black and hispanic. There was a failure of communication and understanding that led to some of the men fragging some of the officers, as in throwing fragmentation grenades at them. And where do we get our officers from? Colleges. If the colleges don't recruit minorities, the fear is that we'll have an all-white officer corps the next time we need a diverse group of leaders. Hence Grutter. It would be difficult to begrudge Rehnquist, Scalia, and Thomas their objections to affirmative actions. Scalia argues that we're all one group here, or should be, American. Thomas argues that it does a disservice to hard-working, smart minority group members to stigmatize them by making life easier for them and not others, because it stigmatizes them as "affirmative action babies," to use Stephen Carter's term, i.e. unqualified.
Rehnquist, who was appointed to the Court in 1972 (or so), was opposed to Miranda (1964), the advice of rights to counsel case in criminal law, but in Dickerson, in 2000, he voted to uphold Miranda constitutionally on the ground that by now the whole country knew about and had come to believe in, "You have the right to remain silent, anything you say can and will be used in a court of law against you,..." etc. He recognized the battle was lost, over and done with. Miranda was such a part of the fabric of society that there was no sense trying to change it now.
He opposed the Roe/Casey abortion rights cases, calling Roe a Potemkin village of a case (in Casey), meaning an empty shell of a case, more symbolic than real, i.e. that states could regulate abortion practice virtually out of existence.
If the liberals sought something on the grounds of progress, modernism, and humanity, you could be sure that Rehnquist would be representing the view that was pulling in the opposite direction.
Of course, that's exactly why President Nixon appointed him to the high court, and since Nixon had won the 1968 election against Eugene McCarthy (Vietnam war, Chicago Seven era, hippies, yippies, peaceniks, acid, rock, John Lennon and the Beatles, Janis Joplin, etc.), you'd expect Nixon to appoint a conservative.
Now we have conservative Pres. George W. Bush nominating John Roberts, a former Rehnquist clerk, to replace him. Since Rehnquist and his right wing appointed GWB in Bush v. Gore (2000), the whole thing looks more than a little incestuous, albeit wrapped in democratic trappings to dampen the smell, I guess.
Let's see, the discredited Nixon appoints the questionable Rehnquist who appoints the maybe-qualified Bush who nominates the supremely capable but highly conservative Roberts.
We're in for a ride, I fear.