Article: Rehnquist's Legacy

Justice William Rehnquist once wrote that "moral judgments mean nothing until given the sanction of law." In other words, in a democracy, people take a vote, and the majority gets to decides what is "right." Implicit in this view is that the majority will define the rights of the minority in a self-serving way in order to retain its dominance.

Given this philosophy, it is not surprising that, in 33 years on the Supreme Court, Rehnquist demonstrated little sympathy for the rights of the less privileged.

Perhaps nowhere is this philosophy more evident than in Rehnquist's civil rights record. Actually, Rehnquist tipped his hand prior to joining the court. As a Supreme Court clerk for Justice Robert Jackson in 1952, he wrote a memorandum urging Jackson to support the infamous 1896 case of Plessy v. Ferguson which upheld racial segregation in schools. In the memo, he admitted his "unhumanitarian" views would be ridiculed by his fellow "liberal" law clerks.

At his confirmation hearing, Rehnquist stated under oath that the memo actually reflected the views of Jackson, an allegation angrily denied by Jackson's former secretary. Conveniently for Rehnquist, the deceased Jackson could not respond to this attempt to smear his memory.

In the early Sixties, Rehnquist publicly opposed an equal-housing ordinance in his hometown of Phoenix. Additionally, according to several sworn statements, he was involved in the harassment of minorities at a polling place. While working in the Nixon Justice Department, Rehnquist wrote memos defending attempts to gerrymander school districts to exclude blacks, and to hold a "whites only" Texas primary. He defended his positions by stating that members of the majority had every right to "ban together."

Not surprisingly, once on the court, Rehnquist consistently opposed anti-discrimination legislation. He wrote dissenting opinions against desegregation of the Denver schools; against denying Bob Jones University tax-exempt status due to racial discrimination; and against affirmative action in colleges.

He dissented when the court ordered the Citadel to accept women students. He consistently opposed any recognition of gay rights.

He joined majority opinions that invalidated a law for affirmative action in federal contracting, and a Texas law created a congressional district composed of mostly minority voters. He joined in other majority opinions requiring that proof of "intent" to discriminate is needed in order to win to a discrimination law suit. He wrote opinions limiting coverage of the applicability of the Americans With Disabilities Act.

Rehnquist's views were particularly harsh regarding the death penalty. In 1972, he dissented when the court overturned 37 state statutes that authorized the death penalty without standards for when it should be imposed. In the last two years, he again dissented when the court declared unconstitutional the execution of the mentally-ill and children.

Of course, Rehnquist was one of two justices in 1973 to dissent from Roe v. Wade, and in 1992 in Casey v. Planned Parenthood he affirmed his belief that Roe was wrongly decided. In Casey, Rehnquist wrote that continuing to follow Roe for the sake of continuity made no more sense that had the court in 1952 continued to follow Plessey for the sake of continuity. The argument dripped with irony given that, as a law clerk in 1952, Rehnquist had defended the separate-but-equal holding of Plessey.

Rehnquist was in the majority when the court held in 1976 that the federal government could not constitutionally enact a minimum wage law. He dissented when the court in 1985 overturned the decision.

But, in the end, Rehnquist will be most remembered for Bush v. Gore, in which he and four other members of the court rode to the rescue of Republican George W. Bush. The majority halted the recount of thousands of disputed ballots in Florida, and thereby handed Bush the presidency. By deciding a "political" question and by employing an "equal protection" analysis that is unsupported in law, the decision is widely-regarded by legal scholars as one of the least-defensible in court history.

There is really no doubt that Rehnquist and the other joining justices - all with strong Republicans ties - would have decided the case differently had Al Gore been been trying to stop the counting of votes.

In his excellent book, Overruling Democracy, Jamin B. Raskin writes: "The unifying philosophy of the Rehnquist Court is not federalism, judicial restraint, strict textualism, or original intent but hostility to popular democracy, especially when it involves impowerment of racial or political minorities. The stance is opposite of the Court's proper role, which should be to faithfully interpret the constitution through the lens of participatory self-government and render universal justice in defense of the rights and liberties of all Americans."

Those powerful words should provide the framework for the Senate in considering whether John Roberts should be confirmed to replace Rehnquist. Unfortunately, that may be asking too much.

Mr. McCartan is a lawyer and freelance writer living in Olympia, Washington.