Chief Justice William H. Rehnquist was a curious man. He could be courtly and gracious, elegant in argument and a brilliant advocate. He also was a ferocious adversary, a relentless conservative and, as John A. Jenkins makes clear in his new biography, a determined partisan.
One sample of his paradox: Rehnquist was a respected leader of the court, appreciated even by those whose politics he abhorred, and yet he secured his position in part by perjuring himself at his confirmation hearing.
From before he came to the court, Rehnquist was a provocative, pugilistic conservative. As a young man, he relished challenging seemingly settled ideas: He defended a hanging judge and the vigilance committees that substituted for conventional police in Gold Rush San Francisco. He followed the misguided scholarship of his Stanford mentor, Charles Fairman, who postulated that the 14th Amendment, which promises all Americans the equal protection of the law, meant something other than what it said. Rehnquist fired off self-satisfied letters to the editor, did his best to keep Latinos from voting in Arizona, annoyed Justice Robert Jackson, for whom he clerked, and argued for the preservation of school segregation when Brown v. Board of Education came before the court.
He also wore flashy suits and bright ties, and he puzzled more traditional conservatives, including Richard Nixon, who appointed Rehnquist to the court despite his reservations about nominating a man he thought “dressed like a clown” and his desire to score political points by nominating someone who was not a Protestant.
“Get him baptized and castrated,” the vulgar Nixon suggested to Attorney General John Mitchell. “No, they don’t do that. I mean, they circumcise. No, that’s the Jews.”
Jenkins captures all that in his new book about Rehnquist, an account that will infuriate Rehnquist’s many defenders and irritate more than a few of his critics. Less a full biography than an extended essay with a point to make, “The Partisan” doggedly — though somewhat selectively — chronicles the life of one of the court’s most important modern justices.
A veteran magazine journalist who has won acclaim for his coverage of the court, Jenkins makes no attempt at evenhandedness. He opens with a synopsis of Rehnquist’s judicial philosophy that Jenkins describes as “nihilistic at its core, disrespectful of precedent and dismissive of social, economic, and political institutions that did not comport with his black-and-white view of the world.”
And what about Rehnquist’s character? “Infatuated with his own genius, he spoke his mind, cast his votes and damned his critics.” I’m no Rehnquist fan, but I found myself feeling defensive of him by the end of the introduction.
Jenkins backs up many of those harsh judgments. He quotes the young Rehnquist’s immature paeans to free enterprise, his mean-spirited clashes with Justice Thurgood Marshall and his embarrassing attempts to publish a novel.
The most damning insight into Rehnquist’s integrity appears here, too, though it has been reported for years. While clerking for Jackson, Rehnquist wrote a memo arguing in favor of maintaining school segregation and upholding Plessy v. Ferguson, which held that “separate but equal” racial arrangements — rail cars in the case of Plessy, schools in Brown — fulfilled the 14th Amendment’s command that all Americans receive the equal protection of the laws.
“I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed,” Rehnquist wrote.
Questioned about it at his confirmation hearings, Rehnquist said he had written the memo in Jackson’s voice under instructions to present the strongest case for Plessy. Witnesses contradicted him, and the language of the memo — Jackson would never have complained about “liberal” colleagues; he was a liberal — make it clear that Rehnquist lied. Jenkins relays that episode confusingly, scattering details of it across many chapters, but it’s appropriately a part of his indictment.
As befits his investigative mission, Jenkins delivers up a few new details. Rehnquist’s health troubles late in life were well known, but Jenkins produces FBI documents to verify that the chief justice in the early 1980s was addicted to painkillers. “Justice REHNQUIST,” the FBI interview summary notes, “has begun to express bizarre ideas and outrageous thoughts” including his belief that the CIA was plotting against him and that he could hear voices in the hall outside his hospital room laying plans to harm him. The notion of a drug-addicted, delusional chief justice is alarming indeed.
And yet, even as Jenkins builds his case against Rehnquist, he undermines it by minimizing or ignoring evidence that cuts the other way. To cite just one example: Central to Jenkins’ thesis is that Rehnquist was cast in stone, that he refused to reconsider positions that he developed as a young man and brought with him to the court. That’s certainly often the case, and Rehnquist was intellectually stubborn. “You equate change with growth?” a dumbfounded Rehnquist once asked.
But he did reconsider some views, most notably in the area of the Miranda case, which Rehnquist deplored for years but then upheld in 2000, concluding that it had become so enmeshed in American law and society that it would be improper to overrule it. Far from an act of nihilism, that was a nod to the complexity of evolving social institutions, precisely the sort of thing that Jenkins argues Rehnquist was incapable of.
That does damage to The Partisan, but much remains that is worth reading and considering, especially today, as voters contemplated the alternative futures of the court that Barack Obama and Mitt Romney might offer.
In that regard, here’s one more observation that frames The Partisan against our contemporary life: If Rehnquist were alive and serving today, he’d be a moderate on the court, outflanked to his right by Justices Antonin Scalia, Clarence Thomas and, arguably, Samuel Alito and Chief Justice John Roberts. Even Rehnquist would have found that hard to imagine.