Demagogue

In this post from yesterday, Arnold let silence speak volumes in assessing William Rehnquist's legacy. An equally welcome review of Rehnquist comes from this Alan Dershowitz column. Unwilling to join the chorus of praise that political etiquette seems to encourage in these instances, Dershowitz writes:

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 .... [he] 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 .... Stanford (Rehnquist's alma mater) 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 ... dended 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 rest of Dershowitz's column is right here.