The death of Chief Justice William Rehnquist amid the agony of New Orleans is a sad and pathetic coincidence: politics-as-usual intruding upon unspeakable horror. But look back at the life of Rehnquist and the life of New Orleans and it is possible to discern a moment in which the biographies of this judge and this city collided.
In 1890, Louisiana passed its first Jim Crow transportation laws. A courageous committee of New Orleans African-Americans and Creoles went to court to challenge the railroad segregation laws. As a test case in 1892, Homer Plessy went to the New Orleans railway station, bought a ticket and was arrested for boarding the whites-only car. His appeal, Plessy v. Ferguson, went to the United States Supreme Court, which in 1896 ruled against him, establishing racial segregation as the law of Louisiana and the law of the land.
Sixty years later, in 1952, young William Rehnquist went to Washington as a clerk to Justice Robert Jackson. The Court that year was considering Brown v. Board of Education. The young Rehnquist took it upon himself to write a now-notorious memo to his boss, arguing mightily that Plessy, the New Orleans segregation precedent, “was right and should be reaffirmed.” Rehnquist lost the argument with his boss, but spent the rest of his career assailing what he later called “attempts on the part of this court to protect minority rights.”
Chief Justice Rehnquist embodied the historical trajectory, political obsessions and strategic cunning of the conservative counter-revolution. As a clerk in the 1950s, he railed not only against Brown, but against justices on the court whom he called “old women,” who were reluctant to swiftly execute Julius and Ethel Rosenberg. In retrospect, that clerkship with Jackson was the Big Bang of Rehnquist’s mental universe: It unleashed the political and legal preoccupations–turning back civil rights, empowering the national security state, removing impediments to vigorous punishment–which nourished Rehnquist for decades. In the end no one, not even Ronald Reagan, cast such a long shadow over the Constitution as William Rehnquist.
Much was made, in the hours after Rehnquist’s death, of his roles in Bush v. Gore and in presiding over President Clinton’s impeachment trial. But for all the partisan passions involved, Bush v. Gore and impeachment were sideshows to the main event of Rehnquist’s career: dismantling the New Deal-Warren Court edifice of expansive civil rights laws and progressive federal government. As a Republican lawyer in Phoenix, Rehnquist fought against the desegregation of public accommodations, and challenged the qualifications of black voters in the polling place. As Richard Nixon’s Deputy Attorney General, Rehnquist drew the legal map for the greatest grab of presidential power in history, defending Nixon’s unauthorized invasion of Cambodia, his widespread wiretapping and the break-ins directed at political dissidents and preventative detention. Appointed Associate Justice by Nixon in 1972, he escaped being directly tainted by the Watergate cover-up–though the scandal had been driven by the very surveillance practices he had helped establish.
As Associate Justice and then Chief, Rehnquist cannily shaped a new and frankly contradictory theory of federalism–at first as a frequent dissenter against the twilight of Supreme Court liberalism, and increasingly, after 1980, in the majority. He fought for limiting the power of Congress and federal courts to enforce civil rights, desegregate schools or regulate business in the public interest.