In Rehnquist's Footsteps
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.
He was equally fierce in his commitment to policing, prisons and every element of social control: undercutting the Miranda ruling's limitations on search-and-seizure; carving out exceptions to the exclusionary rule and upholding pretrial detention; opposing gay rights and dissenting twice against the legalization of abortion, first in Roe v. Wade in 1972 and again twenty years later in Planned Parenthood v. Casey. Rehnquist voted with the court majority in 1976 to restore capital punishment after its four-year abolition from the American landscape. When it came to the death penalty, Rehnquist remained pitiless to the end. He upheld the death penalty for minors and the retarded, writing in Herrera vs. Collins in 1992 that new evidence of innocence is no bar to execution.
Rehnquist's presence on the Supreme Court when Reagan arrived in Washington made him the key figure in the long strategy to establish permanent Republican control of all three branches of the federal government. It is striking how beneath his constitutional arguments, so many of Rehnquist's dissents and majority opinions track back to the politics of resentment and fear played so effectively Nixon, Reagan and both Bushes: white resentment of civil rights, corporate resentment of regulation, fear of crime, fear of sexuality.
Rehnquist's success at transferring this frankly political strategy to the judiciary made him the role model for the young Turks who arrived in Washington with Reagan--Ken Starr, Clarence Thomas, Theodore Olson--and have never left. The Chief Justice's legacy thus includes not only his own body of opinions and dissents but also the potent Republican judicial patronage machine. This is the locus his real influence over Bush v. Gore and Clinton's impeachment. John G. Roberts Jr., once Rehnquist's clerk, is now his nominated but as-yet-unconfirmed successor. His rulings and briefs give every indication that he is a true acolyte: expansive in his views of executive power, derisive when it comes to limits on law enforcement, restrictive in his view of federal courts' civil rights authority.
The terrible events of recent days should force the entire country to look back at where such doctrines, taken for granted in the Rehnquist era, come from and where they lead. That means looking back at New Orleans 110 years ago. It is heartbreaking to imagine a black New Orleans so proud and idealistic that it could not imagine the Supreme Court would betray its aspirations. It is sobering to look back at New Orleans, not just as the beloved city of jazz and restaurants but as the legal birthplace of Plessy vs. Ferguson and thus of the Supreme Court's approval of racial segregation and of the state's rights theories that served as segregation's bulwark.
And it is important to remember that William Rehnquist showed so little regard for the social consequences that follow from his unrelenting application of conservative legal theory. The legacy of segregation, of "states' rights," of "limited government," is visible in the ranks of the dead and those made homeless by this storm. To look back is to look forward with clear eyes. But like his mentor, Justice Rehnquist, Judge Roberts pledged himself to the conservative faith as a young man, and has never once looked back.