Alan Dershowitz: Telling the Truth About Chief Justice Rehnquist
Alan Dershowitz Mon Sep 5, 1:16 AM ET
My mother always told me that when a person dies, one should not
say anything bad about him. My mother was wrong. History requires
truth, not puffery or silence, especially about powerful governmental
figures. And obituaries are a first draft of history. So here’s the truth
about Chief Justice Rehnquist you won’t hear on Fox News or from
politicians. Chief Justice William Rehnquist set back liberty, equality,
and human rights perhaps more than any American judge of this
generation. His rise to power speaks volumes about the current
state of American values.
Let’s begin at the beginning. Rehnquist bragged about being first in
his class at Stanford Law School. Today Stanford is a great law
school with a diverse student body, but in the late 1940s and
early 1950s, it discriminated against Jews and other minorities,
both in the admission of students and in the selection of faculty.
Justice Stephen Breyer recalled an earlier period of Stanford’s
history: “When my father was at Stanford, he could not join
any of the social organizations because he was Jewish,
and those organizations, at that time, did not accept Jews.”
Rehnquist not only benefited in his class ranking from this
discrimination; he was also part of that bigotry. When he
was nominated to be an associate justice in 1971, I learned
from several sources who had known him as a student that
he had outraged Jewish classmates by goose-stepping and
heil-Hitlering with brown-shirted friends in front of a dormitory
that housed the school’s few Jewish students. He also was
infamous for telling racist and anti-Semitic jokes.
As a law clerk, Rehnquist wrote a memorandum for Justice Jackson
while the court was considering several school desegregation cases,
including Brown v. Board of Education. Rehnquist’s memo, entitled
“A Random Thought on the Segregation Cases,” defended the
separate-but-equal doctrine embodied in the 1896 Supreme Court
case of Plessy v. Ferguson. Rehnquist concluded the Plessy “was
right and should be reaffirmed.” When questioned about the memos
by the Senate Judiciary Committee in both 1971 and 1986,
Rehnquist blamed his defense of segregation on the dead Justice,
stating – under oath – that his memo was meant to reflect the
views of Justice Jackson. But Justice Jackson voted in Brown, along with a unanimous Court, to strike down school segregation. According to historian Mark Tushnet, Justice Jackson’s longtime legal secretary called Rehnquist’s Senate testimony an attempt to “smear [sic] the reputation of a great justice.” Rehnquist later admitted to defending Plessy in arguments with fellow law clerks. He did not acknowledge that he committed perjury in front of the Judiciary Committee to get his job.
The young Rehnquist began his legal career as a Republican
functionary by obstructing African-American and Hispanic voting
at Phoenix polling locations (”Operation Eagle Eye”). As Richard
Cohen of The Washington Post wrote, “[H]e helped challenge the
voting qualifications of Arizona blacks and Hispanics. He was
entitled to do so. But even if he did not personally harass
potential voters, as witnesses allege, he clearly was a brass-knuckle
partisan, someone who would deny the ballot to fellow citizens
for trivial political reasons — and who made his selection on
the basis of race or ethnicity.” In a word, he started out his
political career as a Republican thug.
Rehnquist later bought a home in Vermont with a restrictive
covenant that barred sale of the property to ”any member
of the Hebrew race.”
Rehnquist’s judicial philosophy was result-oriented, activist, and
authoritarian. He sometimes moderated his views for prudential or
pragmatic reasons, but his vote could almost always be predicted
based on who the parties were, not what the legal issues happened
to be. He generally opposed the rights of gays, women, blacks,
aliens, and religious minorities. He was a friend of corporations,
polluters, right wing Republicans, religious fundamentalists,
homophobes, and other bigots.
Rehnquist served on the Supreme Court for thirty-three years and
as chief justice for nineteen. Yet no opinion comes to mind which will be remembered as brilliant, innovative, or memorable. He will be
remembered not for the quality of his opinions but rather for the
outcomes decided by his votes, especially Bush v. Gore, in which he
accepted an Equal Protection claim that was totally inconsistent with
his prior views on that clause. He will also be remembered as a
Chief Justice who fought for the independence and authority of the
judiciary. This is his only positive contribution to an otherwise
regressive career.
Within moments of Rehnquist’s death, Fox News called and asked
for my comments, presumably aware that I was a longtime critic
of the late Chief Justice. After making several of these points to
Alan Colmes (who was supposed to be interviewing me), Sean
Hannity intruded, and when he didn’t like my answers, he cut
me off and terminated the interview. Only after I was off the
air and could not respond did the attack against me begin, which
is typical of Hannity’s bullying ambush style. He is afraid to attack
when there’s someone there to respond. Since the interview, I’ve
received dozens of e-mail hate messages, some of which are
overtly anti-Semitic. One writer called me “a jew prick that takes
it in the a** from ruth ginzburg [sic].” Another said I am “an
ignorant socialist left-wing political hack….You’re like a little
Heinrich Himmler! (even the resemblance is uncanny!).” Yet
another informed me that I “personally make us all lament the defeat of the Nazis!” A more restrained viewer found me to be “a disgrace to the Law, to Harvard, and to humanity.”
All this, for refusing to put a deceptive gloss on a man who made his
career undermining the rights and liberties of American citizens.
My mother would want me to remain silent, but I think my father
would have wanted me to tell the truth. My father was right.
Alan Dershowitz is a professor of law at Harvard. His latest book is
The Case for Peace: How the Arab-Israeli Conflict Can Be Resolved (Wiley, 2005).
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