It's sad that he felt the government had the right to stop OCBC and others from distributing medication to those in need. The whole supreme court is a joke, I wish they'd all die and i could appoint the replacements.
A hate supreme
As the end of the Rehnquist era nears, it?s time to reckon with the chief justice?s segregationist past
BY DAVID S. BERNSTEIN
FROM THE TENOR of recent reports, it seems we may have seen Chief Justice William Rehnquist?s last days on the bench. If so, we will soon be treated to retrospectives on his life and career. But to completely and fairly capture the man, those bios should not gloss over Rehnquist?s ardent and active support of racial segregation in the years before he joined the Supreme Court, when he was a private lawyer in Phoenix, Arizona.
Rehnquist?s Phoenix years have rarely drawn attention. They surfaced briefly in 1971, when Rehnquist was nominated to the Supreme Court, and again in 1986, during Senate hearings to confirm his appointment as Chief Justice. In both cases the charges failed to derail confirmation ? since he denied them under oath ? and were quickly forgotten. But a Phoenix review of the charges, including exclusive interviews with a half-dozen people who witnessed his activities, and a review of the Congressional Record and other documents, shows that Rehnquist had an abiding commitment to racist social policies during his pre?Supreme Court years.
"Rehnquist was what I would call a philosophical racist," says George Brooks, president of the Phoenix NAACP chapter from 1963 to 1972, in an interview with the Phoenix earlier this year, "one who intellectually believed that the races are separated by a distinction marked by tradition, and by logic."
Many other segregationists of the time ? Strom Thurmond, notably ? later acknowledged their views and claimed to have changed. But Rehnquist, in the process of ensuring his confirmation to the Supreme Court and later his promotion to the center seat on the bench, has denied that he wrote segregationist arguments as a Supreme Court clerk ? which he did; that he agreed to a segregationist property deed when buying a home in Phoenix ? which he did; that he personally harassed minorities to prevent them from voting ? which he did; that he advocated keeping schools segregated ? which he did; and that he actively fought against civil-rights laws ? which he did.
Most of these lies were told under oath, points out John W. Dean, former White House counsel ? and the man who first recommended Rehnquist to President Nixon as a potential nominee. In a telephone interview this week, Dean remarked that Rehnquist?s presiding over the impeachment trial of Bill Clinton for the crime of lying under oath was "a great irony."
Many African-Americans had harsher terms in mind four years ago, when Rehnquist?s court halted the recount of Florida ballots ? disproportionately in black districts ? and then declared George W. Bush president, using as its legal argument a tortured expansion of the equal-protection clause that Rehnquist, as a so-called strict constructionist, has always made as narrow as possible for minorities.
REHNQUIST SPENT 16 years in Phoenix, working as a private-practice attorney, from 1953 to 1969. He arrived there at age 28, after spending two years as a law clerk for Supreme Court justice Robert H. Jackson. During Rehnquist?s two years clerking for Jackson, the Supreme Court handled several sensitive racial issues, and Rehnquist authored some controversial papers ? none more so than the memo "A Random Thought on the Segregation Cases," written as the court considered Brown v. Board of Education. In it, he argued that the "separate but equal" doctrine of Plessy v. Ferguson "was right and should be affirmed." During his 1986 confirmation hearing, Rehnquist insisted that the memo, written in the first person, was meant to characterize Jackson?s views, not his own; this has been convincingly rebutted, says Edward Lazarus, author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Dean, for instance, picked the argument apart in his 2001 book, The Rehnquist Choice, as did Richard Kluger in Simple Justice, his 1976 classic on Brown v. Board of Education.
In another memo from his Jackson clerkship, however, unquestionably expressing his own thoughts, Rehnquist wrote: "It is about time the Court faced the fact that the white people [in] the South don?t like colored people."
In Phoenix, Rehnquist owned a home in an affluent part of what was a very segregated city, with a deed specifying that he could not sell or rent to "any person not of the white or Caucasian race" ? a clause he later claimed not to have noticed.
But in fact Rehnquist was acutely aware of racial issues, and was not shy about his views at the time. As late as 1967 he argued against school desegregation in a letter to the editor printed in the Arizona Republic. In it, he wrote that the school superintendent?s " ?integration program? for Phoenix high schools, is distressing to me."
Earlier, from 1956 through 1964, Arizona?s legislature tried, and failed, to pass a public-accommodation law ? making it illegal for private businesses such as hotels and restaurants to refuse service to people on the basis of race. Rehnquist was a leading voice against the law. Brooks recalls one evening, when he and other civil-rights activists were picketing in favor of the public-accommodation bill in front of the Arizona State House. Rehnquist emerged from the building, where he had been representing Republicans in an unrelated hearing. "He came to accost us," Brooks says. Without any prompting, Rehnquist approached Brooks in the picket line and angrily expressed his opposition to the proposed law. "He remonstrated against us," Brooks says. Others have attested to the altercation, which Rehnquist says didn?t happen ? even claiming under oath, to Brooks?s amusement, that he did not know anyone named George Brooks.
For eight years, state legislators voted down the public-accommodation bill time and time again, and by 1963 Phoenix was rife with lunch-counter sit-ins, marches, and demonstrations. Finally, in 1964, Brooks spearheaded a local public-accommodation bill in Phoenix. When the Phoenix City Council took public testimony on the ordinance, Rehnquist spoke against it.
A document obtained by the Phoenix from Phoenix City Hall archives lists all those who spoke for and against passage: 56 names are listed as "pro," and only six as "con." One of those six is William Rehnquist. The ordinance, he said, was "an assault on the institution" of private property, according to a transcript entered into the Congressional Record during Rehnquist?s 1986 confirmation hearings.
"He was gutsy," says Brooks, who was one of the "pro" speakers. "He was the only person of substance who spoke against it."
The day after Rehnquist testified, the council passed the ordinance unanimously. Undeterred, the future chief justice published a lengthy letter to the editor in the Republic. In that letter, also included in the 1986 Congressional Record, Rehnquist called the ordinance a "mistake," saying it "summarily does away with the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers."
Confronted with this evidence of his segregationist views during his 1986 confirmation hearings, Rehnquist said he had since changed his mind ? not about the morality of racial discrimination, but about whether black people were serious about it. "I have come to realize since, more than I did at the time, the strong concern that minorities have for the recognition of these rights," he said. "At the time" was less than a month before Congress passed a national public-accommodation law as part of the Civil Rights Act.
DURING THE SAME years Rehnquist fought to keep racial discrimination legal, he was fighting another battle ? at the polls. From 1958 to 1964, Arizona Republicans ran an operation they called "Eagle Eye," in which they moved from polling place to polling place in Phoenix?s minority neighborhoods, challenging voters in an attempt to disqualify some and slow down the line enough to keep others from voting. Under Arizona election law, every political party was allowed to post one watcher at each polling place, who could challenge a voter?s legitimacy. According to numerous witnesses, many under oath, Rehnquist headed "Eagle Eye" and personally harassed voters.
"Rehnquist pretty much wrote the manual on how to discourage blacks and Hispanics at the polls," says Harry Craig, a Phoenix attorney who was a poll watcher for the Democrats, speaking to the Phoenix.
The operation actually began a month before each election: Republicans mailed letters to all the registered voters in South Phoenix ? the heavily minority part of town ? using the addresses on the official registration rolls. Any letter returned by the post office gave them a basis to challenge the voter?s legitimacy. Craig recalls a Republican poll watcher with a large box of returned envelopes that he used for challenges. Manuel Pena Jr., another Democratic poll watcher, told the Phoenix he witnessed Rehnquist using this technique. "He had a whole stack of envelopes, and was trying to match them to people as they came in to vote," Pena says.
But Rehnquist was even more aggressive than the operation called for. "He was challenging everybody, and that wasn?t legal," Pena says. The challenge Rehnquist preferred was more universal and far more demeaning: making them prove they could read.
At the time, literacy ? in English ? was a requirement for voting in Arizona. (Such requirements were banned nationwide by the Civil Rights Act in 1964.) But literacy had to be proven at the time of registration, and was not open to challenge at the polls. Rehnquist, however, carried a copy of the US Constitution, and forced people in line to read a section and explain it, according to Pena.
Brooks says he, too, saw Rehnquist using the literacy-challenge tactic. "He was personally doing it," he says. "I remember him specifically picking on an older man, a Presbyterian elder, who worked on the railroads. I threatened to call the sheriff."
Cloves Campbell Sr., a state representative at the time who had several clashes with Rehnquist, had similar recollections when he spoke to the Phoenix in March, three months before he died of a heart attack. "Bob Tate, a county clerk, was at the polls, and Rehnquist was challenging," Campbell said. "Tate told him to stop it and sit down. Finally Tate threw him out and busted him upside the head."
There are plenty of witnesses to these stories, because Rehnquist made appearances at many polling places, in several elections. Sydney Smith, a Phoenix psychologist, told Congress that he saw Rehnquist challenge the literacy of two African-Americans in line to vote. James Brosnahan, an assistant US attorney in Phoenix in 1962, testified that he and an FBI agent heard complaints from black and Hispanic voters about Rehnquist ? the only Republican challenger at the polling place at the time ? challenging their literacy. (Brosnahan declined a Phoenix request for an interview.)
During his 1971 confirmation hearing, Rehnquist testified that although he might have occasionally helped resolve disputes at polling places, "in none of these years did I personally engage in challenging the qualifications of any voters."
REHNQUIST?S "EAGLE EYE" activities can be easily viewed as partisan electoral shenanigans, rather than racism ? in the same way that many of the Democrats trying to register minorities in those years were probably more interested in their votes than in their rights. But many say Rehnquist has always struck them as more ideological than partisan. In fact, that was a big reason why Dean suggested him for the Supreme Court. "He was a conservative who knew why he was a conservative," says Dean. "He had thought through his positions."
Fresh off two rejected nominees, Nixon didn?t want to nominate an overt racist, Dean wrote in his 2001 book, The Rehnquist Choice. But Nixon also ruled out anyone who might turn out to be "soft" on civil rights over time. Rehnquist, an intellectual ideologue, would be more consistent in the long run, Dean thought.
In private, Rehnquist did not come across as a racist, says Dean ? not in the way many certainly did at the time (including, as we know from tape recordings, the president himself). "Not at all," Dean says emphatically. "Had I known that Bill Rehnquist?s philosophy is as exclusive of women?s rights, black rights, minority rights as it turned out to be, I would never have suggested him." It is one of his great regrets, he says.
Dean could not have known then that Rehnquist would go on to spend more than three decades on the Supreme Court, including 18 years as chief justice, applying his beliefs to every area of American life. When Rehnquist does retire, and historians and constitutional scholars debate his legacy, the ugly truth of those beliefs should not be left out of the picture.
Alan Dershowitz: 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.