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 judicial dogma.

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 grey."

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 Stanford Magazine.

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 legislators.

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 Nixon's face.

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 minority.

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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