Wednesday, September 07, 2005

Judging Rehnquist, Part I (Dershowitz)

A few days ago, I said this: "There will soon be a good deal of discussion about Rehnquist's replacement, much of it excessively partisan, but, for now, let us mourn the loss of one of America's most prominent and influential jurists."

I don't take any of that back -- Rehnquist was one of America's most prominent and influential jurists -- but it's time to look more closely at Rehnquist's career, that is, at the substance of his prominence and influence. Here's what Alan Dershowitz, "a longtime critic of the late Chief Justice," had to say about Rehnquist at The Huffington Post:

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...

Dershowitz addresses Rehnquist's alleged anti-Semitism and mentions that he "defended the separate-but-equal doctrine embodied in the 1896 Supreme Court case of Plessy v. Ferguson" in a memo he wrote as a law clerk. In addition, Dershowitz alleges that "Rehnquist began his legal career as a Republican functionary by obstructing African-American and Hispanic voting at Phoenix polling locations," that is, that "he started out his political career as a Republican thug". More:

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.

Fair enough. Dershowitz, as usual, doesn't hold back, but is he right? If he is, even only in part, Rehnquist's admirers and apologists have a lot of explaining to do.

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  • On the other hand, in yesterday's New York Times, Lawrence Tribe, an equally distinguished and liberal law professor praised Rehnquist as a decent and humane man, a pragmatist who sought justice (even though Tribe also disagreed with some of his decisions). I'm certainly not in a position to judge which of them is correct legally. But I will say that I have never been impressed with Dershowitz. He has a shoot from the hip quality that I find grating and a large air of self-importance. His "schtick" seems to be making controversial statements for the sake of making controversial statements. And much of what he has said over the years has been plainly ridiculous as when he advocated having judges authorize torture. Much of this is, of course, ad hominem and doesn't really reflect whether his opinion on Rehnquist is correct or not. But Jeffrey Rosen, the legal analyst at The New Republic and also a law professor, recently praised Rehnquist as well. I tend to think Rosen and Tribe are more judicious analysts and put more weight on their conclusions than I would on Dershowitz.

    By Anonymous Anonymous, at 9:45 AM  

  • No, I don't much care for Dershowitz either. Which is why I'm balancing his views with those of other commentators (like Lithwick). Thanks for mentioning Tribe and Rosen, too.

    By Blogger Michael J.W. Stickings, at 11:03 AM  

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