Pundits are busy assessing the legacy of Chief Justice William Rehnquist, who died last week after a battle with thyroid cancer.
For many Republicans, what Ronald Reagan was to politics, William Rehnquist was to the federal judiciary.
Personally, I wouldn’t make that comparison. I’ve always thought Rehnquist was more like Jesse Helms, the senator from North Carolina who wore his bigotry on his sleeve.
After graduating from Stanford Law School, Rehnquist served as a law clerk to Supreme Court Justice Robert Jackson. During his clerkship, he wrote a memo defending the court’s infamous 1896 decision in Plessy vs. Ferguson – which said that providing “separate but equal” accommodations for whites and blacks was constitutional.
But in 1971, during his own confirmation hearings for the position of associate justice, Rehnquist denied that the Plessy memo reflected his personal beliefs. In 1986, when he was confirmed as chief justice, he was asked again about the memo – this time by Sen. Joseph Biden of Delaware. Biden wanted to know if Rehnquist thought Plessy should have been struck down, but Rehnquist dodged the question and wouldn’t commit one way or another. He would only say that Plessy had been “on the books” for decades – it was overturned by the court’s Brown vs. Board of Education decision – and that, in the end, he had not “reached a conclusion” about whether it should be overturned.
Silly me. I thought that “separate but equal” was pretty clear.
You’re either for it or against it. Rehnquist couldn’t say which.
In another memo to Jackson, stemming from a voting rights case involving a “whites only” primary in Texas, Rehnquist dismissively scoffed at what he called the “pathological search for discrimination.” It’s clear that Rehnquist didn’t put much stock in the claims of some that they were the victims of unequal treatment, and so he was never really in a position to remedy the inequity.
Eventually, Rehnquist moved to Phoenix, where he went into private practice. He found time, as late as 1967, to argue against a local school desegregation plan in a letter to the editor of The Arizona Republic.
Rehnquist’s Arizona years produced perhaps the most notorious allegations about his civil rights record.
The allegations date back to the 1950s and ’60s when, according to several witnesses, Rehnquist harassed African-American and Hispanic voters in majority-minority precincts in South Phoenix. The witnesses said that Rehnquist, who was part of a private group called Operation Eagle Eye, would approach minorities who were waiting in line to vote and ask them pointedly whether they had a right to be there, whether they could interpret the Constitution, whether they could speak English or whether they were U.S. citizens.
Here’s how The Republic treated those allegations this week in marking Rehnquist’s passing: “There also were political activities in Phoenix, such as Rehnquist serving as a legal adviser to Republican election ‘challengers’ assigned to various polling places in the city from 1958-68.
“At Rehnquist’s Supreme Court and chief justice confirmation hearings in 1971 and 1986, liberal Democratic senators alleged that Rehnquist participated in GOP ‘squads’ that would dart among Phoenix voting precincts on election days, confronting blacks and Hispanics to intimidate and discourage them from voting.” As the newspaper noted, “The extent of Rehnquist’s involvement remains cloudy” since he denied ever challenging voters.
But why would anyone go to all this trouble? Simple. Black and brown voters were presumed to be voting for Democrats – something that Republicans like Rehnquist were presumably not thrilled about.
Some of these voters lodged formal complaints about what they said was illegal interference with the democratic process. One of the people assigned to investigate was former Assistant U.S. Attorney James Brosnahan, who later testified before Congress that when he arrived at one of the precincts at which a complaint had been filed, he found Rehnquist on the scene.
Rehnquist was confronted by those charges during his confirmation hearings. He claimed that it was a case of mistaken identity, and he insisted that he had never tried to intimidate voters.
All in all, it would be generous to say that Rehnquist’s views on civil rights and equal protection were troubling at best. But that’s part of his legacy. And it’s nothing to be proud of.
