my intro to theatre studies class makes me feel like the theatre geek that i am and we talk about oedipus and the tragedy and compare it to brechtian theory and freud and nietzche and oh my god there's so much there and high school never did this and i used to hate sophocles, but man oh man is he the dude or what.
9.04.2005 Telling the Truth About Chief Justice Rehnquist
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[]
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.
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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).