Deborah Pearlstein has offered an excellent summation on this site of the perverse judicial legacy of William Rehnquist, the man who preached “judicial restraint” while running perhaps the most activist Supreme Court in history. And here's another aspect of the Rehnquist file that deserves an honest look: The man had a problem -- a real and disturbing problem -- when it came to race.
A couple of commentators have already taken note of Rehnquist's appalling civil-rights record: TAP's own Matthew Yglesias over at TPM Café, and David Corn on his blog at The Nation's site. But they both missed what was to me the most dramatic extract from Rehnquist's racial dossier -- a little surprising in David's case, since it involves one of the greatest hits of his magazine in (relatively) recent history.
In the early 1960s, when Rehnquist was practicing law in Phoenix, he was, by his own admission, in charge of local Republican "ballot security" programs. In 1986, when the Senate Judiciary Committee was considering Rehnquist's nomination for chief justice, the issue came up at his hearings. The Nation Institute, an arm of The Nation magazine, funded a couple of local investigative reporters to go around the black precincts of Phoenix and start asking questions.
They turned up three witnesses who testified that they had seen Rehnquist harass black voters. Other news organizations followed the scent. Charles Pine told United Press International that he personally saw Rehnquist challenge black voters who were standing in line to vote. And Sidney Smith told National Public Radio that he recalled seeing Rehnquist work a line of black voters holding a small white card, a card he was apparently asking them to read.
The issue had come up at Rehnquist's hearings to become associate justice in 1971. Then, six black Phoenix voters had signed affidavits saying that Rehnquist had asked them to take reading tests before they voted. But the 1971 Senate was not exactly given to enthusiastic exploration of such matters.
By the 1986 hearings, the matter again received attention. I recall watching those hearings and seeing the two investigative reporters testify. But even then, there wasn't much stomach among Democrats to go too deeply into it -- partly because they were somewhat more focused on grilling Antonin Scalia, whose associate-justice hearings took place at the same time.
Rehnquist was asked about his ballot-security work, but he got away with offering a few opaque “I don't recalls,” and that was the end of it. But maybe not quite yet: During the hearings, some Democratic senators requested that the FBI launch a probe. We the public, of course, have never seen the results. It might make for interesting reading someday.
On top of this, there is Rehnquist's record on the Court. He voted consistently against virtually every civil-rights and affirmative-action measure that came before him. In 1978, on the original affirmative-action case, he dissented. On four more major cases, he voted against the program.
Opposition to affirmative action does not make one a racist. I have struggled in print with affirmative action myself, wondering whether justifications for the program still exist in today's America. In the final analysis I support it on the grounds that it has vastly expanded the black middle class and has encouraged social mixing (men and women and blacks, browns, and whites working together, etc.) that has done society a lot of good, and is still doing good.
But to oppose affirmative action consistently on the grounds Rehnquist had is to make a particular kind of assertion about race in America. To Rehnquist -- who advised Justice Robert Jackson that Plessy v. Ferguson was good law back in 1954 when Jackson was considering Brown v. Board of Education -- there is not, and has never been, an appropriate federal remedy for past racial discrimination by states. Period.
Racial segregation in the various states was the great internal cancer of 20th-century America until the federal government decided to act against it. But to Rehnquist, that federal action was illegitimate, and there was no need to get emotional about it. Those states' laws were interchangeable with state rules regulating the width of shoulders on state highways.
And it's not as if Rehnquist followed the principle of states' “sovereign immunity” from federal interference straight down the line. In Nevada Department of Human Resources v. Hibbs, he wrote the majority opinion that required Nevada to enforce the Family and Medical Leave Act. But funnily enough, on racial questions, it was always States 1, Feds 0.
Finally, I do have my own little personal encounter with Rehnquist on the matter of race. Because of my father's lifelong friendship with a late, esteemed judge in the 4th Federal Circuit, our family used to attend the circuit's annual conference, held in alternation at the Greenbrier and at the Homestead. The chief justice, who oversees the 4th, always used to attend. (I remember my sister telling the story of sitting behind Warren Burger at a screening -- the Greenbrier has a movie theater -- of the dreadful Tom Selleck vehicle High Road to China. At one point, Burger turned around to her and said, “Isn't this exciting?!”)
Anyway, one year in the late 1980s, when Rehnquist was already chief justice, the conference one night featured an activity called “Old-Favorites With the Chief Justice.” The family Tomasky was intrigued enough to go down to the small seminar room where the event took place.
As we entered, we were handed Xeroxed sheets of lyrics to various old standards -- “Erie Canal,” stuff like that. Things were fine. But when we got to “I've Been Working on The Railroad,” we shot one another looks. The lyrics were rendered in old slave doggerel: “Doan' yo hyar de whistle blow'in / Rise up so early in de mawn / Doan' yo hyar de Cap'n shoutin' / Dinah blow yo hawn” -- and so on.
Both the esteemed Republican judge who hosted us and his wife were appalled. We were partly appalled and partly amused. Mr. Chief Justice, though, sang spiritedly.
Obviously, he did not write the lyrics; he may even have been privately taken aback, deciding to carry on for the sake of comity (needless to say, there wasn't a black person in the room, except, inevitably for the Greenbrier, the people bringing our drinks). But it struck all of us as rather interesting that Rehnquist could not find it within himself to suggest that maybe we should all skip this one.
But given his public record, it was seemingly in character. Jeffrey Toobin and Nina Totenberg reminded NPR listeners over the weekend that Rehnquist's title was not chief justice of the Supreme Court but chief justice of the United States -- the embodiment of “We the People,” the personal representative of all that is best in our great system of laws. On the central domestic civic controversy of his lifetime, he fell woefully short.
Michael Tomasky is the Prospect's executive editor.
