Sheridan: Con-Law

DERSHOWITZ ON REHNQUIST

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.

REHNQUIST PROFILE BY JEFFREY ROSEN

Jeffrey Rosen has this profile of the late William H. Rehnquist, C.J. in the Atlantic Monthy magazine, below.

BUSH NOMINATES ROBERTS AS CHIEF JUSTICE

Before flying off for his second visit to the evacuated, flooded city of New Orleans, which is now occupied by federal troops to keep down the looters who've been shooting at police and setting abandoned buildings on fire, President Bush announced at 8:00 a.m. this Labor Day Monday morning that he was upgrading his nomination of John Roberts from Associate Justice to Chief Justice of the United States upon the death of William H. Rehnquist on Saturday.   The new term begins the first Monday in October, four weeks hence.  Justice O' Connor remains in place, as she  made her resignation contingent on the confirmation of her replacement, who now remains to be nominated.

Between the deadly insurgency in Baghdad and elsewhere, which has called into question Pres. Bush's conduct of the war in Iraq, and the slow, ineffective federal response to Hurricane Katrina, which proved deadlier and more extensive than anticipated, wiping out coastal towns and killing what may be thousands of people, the president's popularity is falling in the polls.

The upgrading of the Roberts nomination is the bright spot of the week.

Roberts has been looking good since his initial nomination, despite intense digging into his writings as possible by Senate Democrats and the press.  No senator has yet come out firmly in opposition to his nomination as associate justice. 

The major point of contention mentioned by senators as a possible sticking point is whether he will vote to maintain the abortion principle of Roe/Casey, meaning a woman's constitutional right, as a matter of personal privacy, control over her own body and reproductive system, and autonomy over her decision-making power to become the parent of a child or another child, to protect her own life or health, which includes emotional and mental health. 

This right currently exists, meaning is recognized by the Supreme Court, hence all other courts, under the Supremacy Clause, in all but the late stages of pregnancy when the state is seen as having a right to protect the life of fetuses provided that the state does not place an "undue burden" on the woman's right to protect her health, privacy, and autonomy.   

Opponents of the Roberts nomination have been waging an ad-war on TV highlighting the fact that Roberts, as a deputy Solicitor-General, meaning the government's lawyer before the Supreme Court, signed a brief arguing, in Rust v. Sullivan, that Roe was wrongly decided and should be overruled.  Chief Justice Rehnquist, dissenting in Planned Parenthood of Southeastern Pennsylvania v. Casey, called Roe a "Potemkin Village" of a case.  The reference is to Czarina Catherine the Great of Russia's interior minister who accompanied her on a tour, and to make sure that she didn't see how run-down a village really was, had erected a Hollywood-like set of new facades.  The incident has become a metaphor for substance-less form.  Roe has been hollowed out by recognizing the right in principle, but in practice allowing the states to impose various burdens and delays on the exercise of the right.  The Court, in Casey, thus preserves Roe as precedent, but carves out exceptions to an extent that Rehnquist deemed hollow.

The N.Y. Times has the following article containing excerpts from eight decisions in which Rehnquist's attitudes have shaped constitutional doctrine.  As a conservative person, elevated to the Court initially and then to the Chief Justiceship by conservative presidents, Rehnquist's views represent an articulate expression of a deep conservative attitude shared by much of the nation.  The interesting question is whether, in his articulation of conservative views into law, Rehnquist has been leading or following. 

The answer is probably a combination of both.  That's what leaders DO:  lead by following, and follow by leading according to their understanding of the direction their followers wish to go. 

The art is to make following look like leading, and vice versa.

The main thing we don't know about Roberts is how conservative his brand of conservatism is.  Plenty conservative, probably, but to a considerable extent, the meaning of America at its best is progress in the application of humanitarian values, despite opposition to those applications initially by conservatives. 

Thus even conservatives, perhaps especially conservatives, must contemplate that the world changes under their feet.  Conservatives are the late-adopters of change.  Radicals are first, liberals second, the mainstream third, and conservatives last.  All but the die-hards eventually accept as given what previous generations fought at great cost for. 

Labor unions, social security, working conditions, protection of children in, or from, the workforce, and rights for women are all examples of ideas whose time came long ago, but was opposed by conservatives who now, more or less grudgingly, have come to tolerate, if not fully accept them. 

To the great mass of people who take these rights for granted, the part of John Roberts that represents a potential Rehnquistian backlash against such advances as these and other rights that so many regard as signs of progress, is the frightening part, no matter how bright, experienced, and charming Roberts is. 

This puts Roberts is on the spot:  if he signals to those who put great store in such rights that he will protect them, he goes against the people who brought him to the dance in the first place.  Don't count on Roberts slapping them in the face any time before confirmation.  After confirmation may be another story, and this is the great fear of the right which produced him.  Roberts may not be as far to the right as conservatives think they are entitled to have on the Court. 

This, to some extent, must be a concern of the president who nominates him.  Presidents know that all they can do is nominate an apt candidate, not control the decision-making later.

The Chief Justice of the United States, and any justice, has a duty to the country which is larger than the duty owed to the folks who put them there.  While any justice can be expected to be faithful to the views that brought him, or her, to the Court, this is the place where hard choices are forced as to whether a vote for or against the right being contested represents true conservatism or not.  No matter which way Roberts votes on an issue, we can assume it will represent a view that will either be seen as conservative or otherwise acceptable to many conservatives, if not all. 

The far right is a hard constituency to satisfy in the modern world, which they have difficulty accepting in all of its ramifications when not trying clearly to dismantle it.  Liberals, meanwhile, know what regression entails, having been there, done that, fought the battle, got the T-shirt, and now have to fight it again.

And so it goes.

CHIEF JUSTICE REHNQUIST, 80, PASSES AWAY

Chief Justice William H. Rehnquist, 80, passed away yesterday over the Labor Day weekend, almost a year after being diagnosed with thyroid cancer, a period in which he rallied to swear in George W. Bush for his second term as president after the Chief Justice and four fellow conservative colleagues placed him in the White House after two grants of certiorari within a week in Bush v. Gore (2000). 

Death occurred  within a week following Hurricane Katrina which destroyed New Orleans, and two days before the scheduled Senate Judiciary Hearing on Pres. Bush's nomination of Judge John Roberts, Rehnquist's former law clerk, as Associate Justice of the Supreme Court, in replacement of Justice Sandra Day O'Connor, who announced her retirement pending confirmation of a successor, which is an uncertain date..

Will Pres. Bush nominate Roberts to be Chief Justice? 

Who else will Pres. Bush nominate to the Court in addition to Roberts?

With two positions to fill, O'Connor's and Rehnquist's, Pres. Bush appears able to perpetuate conservative thinking on the Court, hence the direction of the nation, for decades to come. 

As we've come to see it, conservative thinking tends to place a greater weight on:

1.     the power of states vis-a-vis Congress and the federal government,

2.    the power of government vis-a-vis the civil rights of individuals,

3.    a disinclination to favor affirmative action, and

4.    an opposition to the expansion of privacy and personal autonomy rights against the power of government and a social-conservative majority, particularly of a woman's constitutional right under Roe/Casey to choose to terminate an unwanted pregnancy at all, but especially in the latter stages of pregnancy, and against an expanded recognition of gay rights, such as to marry.

5.    It is anticipated that developing issues of first impression such as certain forms of stem-cell research, which Pres. Bush and his conservative religious right wing oppose, will eventually reach the Court, along with questions concerning:

6.   The extent of presidential power to protect the nation from the threat of further terrorist attacks, i.e. national security versus traditional guarantees of individual liberty and protection against government intrusion.

7.    And regarding public displays of religion in the town square, public buildings, and school related activities, seem more inclined to view restrictions in the name of separation of church and state more as hostility to religion than as providing a neutral environment for all to practice religion privately, that is risking shoving religion down the throats of those who prefer not to be bothered.

Linda Greenhouse, in today's Sunday New York Times, has this report, below: