Chief Justice William H. Rehnquist 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’s new biography makes clear, a determined partisan.
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 did his best to keep Latinos from voting in Arizona 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. Jenkins captures all that in his new book, an account that will infuriate Rehnquist’s many defenders and irritate many of his critics. A veteran journalist who has won acclaim for his court coverage, Jenkins makes no attempt at evenhandedness. He describes Rehnquist’s judicial philosophy 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.”
The most damning insight into Rehnquist’s integrity appears here, too, though it has been reported for years. While clerking for Justice Robert 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.
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. 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. 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.
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. 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.