By Joseph Schuman
Oct 4 (Reuters) - The William Rehnquist of John Jenkins's
new biography is the same rigid, reactionary and arguably racist
jurist hated by liberals and loved by conservatives during his
three decades on the Supreme Court and 19 years leading it.
But Jenkins's "The Partisan: The Life of William Rehnquist"
breaks new ground by unearthing the roots of Rehnquist's
Jenkins -- whose 1985 New York Times Magazine profile of
Rehnquist prompted the justice to swear he'd never give another
interview -- examines the life, schooling and career that
produced a justice who zealously promoted the death penalty,
opposed civil rights laws and abortion rights, and so
predictably sided with right-wing causes that his promotion to
chief in 1986 was a no-brainer for Ed Meese and other
conservatives in the Reagan White House.
Jenkins is a scalding critic of both Rehnquist's
constitutional philosophy and of how the late chief justice put
it to work. While the book is scrupulously documented, a product
of well-tilled archives, interviews, audio analysis and FBI
files, Jenkins doesn't spend much time plumbing the
philosophical origins of that conservatism. But neither, he
suggests, did Rehnquist.
Rehnquist the lawyer and judge had "a sort of inspired legal
nihilism, led more by political instinct" than precedent or law,
Jenkins writes. "He made his mind up on the basis of how he saw
the world." That world was, sometimes literally, one of "cases
in black and white" where Rehnquist "did not struggle with the
Rehnquist was born in 1924 and grew up in a Milwaukee suburb
where families like his listened to controversial Catholic
priest Father Charles Coughlin on the radio, villainized the
liberal Franklin Roosevelt and backed conservative Herbert
Hoover, Jenkins writes. An issue of the Shorewood high school
student newspaper lists Rehnquist among the neighborhood
volunteers who reported draft dodgers.
Following a World War II stint as an Army Air Corps weather
observer, Rehnquist headed to Stanford University, where he
thrived as an "outlandishly conservative and outlandishly
bright" student of political science, according to an issue of
Rehnquist's own writing at the time, in private journals and
classwork, show him bonding with a moral-legal understanding of
the Constitution that divides freedoms into the constitutionally
protected and unprotected.
Freedoms of speech, religion and (limited) due process were
among the morally imperative freedoms from coercion Rehnquist
considered constitutional. Other freedoms -- civil rights,
privacy, gender rights -- were political rather than moral in
his eyes, and thus at the mercy of the majority and its elected
Rehnquist's master's thesis at Stanford, as summed up by
Jenkins, was that "minorities had no inherent moral (or
constitutional) right to be free from discrimination."
Thus it was, a law school education later and in his first
legal job as a clerk to Justice Robert Jackson, that Rehnquist
plunged into one of the biggest constitutional questions of the
century: Is separate-but-equal education fair to
African-Americans and thus permitted by the Equal Protection
Clause of the 14th Amendment? It was 1952, and the high court
was examining Brown v. Board of Education.
Rehnquist wrote three memos to Jackson that would dog him
years later and in which he argued for upholding the
separate-but-equal precedent, Plessy v. Ferguson.
"In the long run it is the majority who will determine what
the constitutional rights of the minority are," Rehnquist wrote.
"It is about time the Court faced the fact that the white people
in the South don't like the colored people; the Constitution
restrains them from effecting this dislike through state action,
but it most assuredly did not appoint the Court as a
sociological watchdog to rear up every time private
discrimination raises its admittedly ugly head."
Jackson nonetheless voted with the majority to overturn
Plessy, and when Rehnquist's clerkship ended he headed to
Arizona. There he became one of the top Republican lawyers in
the state, fighting (unsuccessfully) the integration of Arizona
schools and serving as the state party's point man challenging
the eligibility of black and Hispanic voters.
On returning to Washington, Rehnquist became head of the
Office of Legal Counsel for President Richard Nixon, where he
provided legal justification for unpopular policies -- like
Nixon's use of the Army to wiretap private citizens -- and
offering initiatives of his own.
Among them was a proposal to rewrite the Constitution to
drastically limit defendants' rights and repeal the Bill of
Rights' authority over the states. His boss, Attorney General
John Mitchell, rejected the ideas, fearing they might blow up in
But it was Rehnquist's arguably botched handling of vetting
Supreme Court nominees that ultimately landed him on the bench.
After the segregationist past of two judges scuttled their
nominations in the Senate, Nixon tapped Rehnquist as a
last-minute replacement in 1971.
"Be sure to emphasize to all the southerners that Rehnquist
is a reactionary bastard," Nixon told Mitchell after the
announcement, his voice recorded by White House tapes.
There isn't much about Rehnquist the man in "The Partisan,"
but what there is portrays him as unapologetic and confident
about his personal choices, money, his well-documented addiction
to prescription painkillers in the early 1980s and the golden
stripes he added to the chief justice's robe.
Rehnquist the jurist was the same. When his Plessy v.
Ferguson memos surfaced during his 1971 confirmation hearings,
he said the thoughts weren't his but Justice Jackson's. When
that assertion was shown to be a lie during his 1986
confirmation hearings for the post of chief justice, Rehnquist's
story didn't budge.
The Senate confirmed Rehnquist as chief 65-33 -- the worst
vote yet recorded for a Supreme Court confirmation. The
simultaneously nominated Antonin Scalia, appearing moderate next
to Rehnquist, got a vote of 98-0.
Rehnquist was also a congenial colleague among the justices,
but his faith in his own opinions and unwillingness to be swayed
meant that even as the court's leader he was often in the
Rehnquist told Jenkins he never dwelt on the results of his
opinions -- "You know, there's literally no time for thinking
about past decisions: Was I right or was I wrong? You'd simply
go nuts if you did that."
And asked if he was proud of any majority opinions he
authored, Rehnquist said he couldn't think of one.
But what Rehnquist's legacy lacks in landmark opinions it
makes up for in current influence. His once-minority positions
now find a majority of justices behind them, led by a former
Rehnquist clerk, Chief Justice John Roberts.
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