Given this philosophy, it is not surprising that, in 33 years on the Supreme Court, Rehnquist demonstrated little sympathy for the rights of the less privileged.
Perhaps nowhere is this philosophy more evident than in Rehnquists civil rights record. Actually, Rehnquist tipped his hand prior to joining the court. As a Supreme Court clerk for Justice Robert Jackson in 1952, he wrote a memorandum urging Jackson to support the infamous 1896 case of Plessy v. Ferguson which upheld racial segregation in schools. In the memo, he admitted his unhumanitarian views would be ridiculed by his fellow liberal law clerks.
At his confirmation hearing, Rehnquist stated under oath that the memo actually reflected the views of Jackson, an allegation angrily denied by Jacksons former secretary. Conveniently for Rehnquist, the deceased Jackson could not respond to this attempt to smear his memory.
Not surprisingly, once on the court, Rehnquist consistently opposed anti-discrimination legislation. He wrote dissenting opinions against desegregation of the Denver schools; against denying Bob Jones University tax-exempt status due to racial discrimination; and against affirmative action in colleges.
He dissented when the court ordered the Citadel to accept women students. He consistently opposed any recognition of gay rights.
Rehnquists views were particularly harsh regarding the death penalty. In 1972, he dissented when the court overturned 37 state statutes that authorized the death penalty without standards for when it should be imposed. In the last two years, he again dissented when the court declared unconstitutional the execution of the mentally-ill and children.
Of course, Rehnquist was one of two justices in 1973 to dissent from Roe v. Wade, and in 1992 in Casey v. Planned Parenthood he affirmed his belief that Roe was wrongly decided. In Casey, Rehnquist wrote that continuing to follow Roe for the sake of continuity made no more sense that had the court in 1952 continued to follow Plessey for the sake of continuity. The argument dripped with irony given that, as a law clerk in 1952, Rehnquist had defended the separate-but-equal holding of Plessey.
Rehnquist was in the majority when the court held in 1976 that the federal government could not constitutionally enact a minimum wage law. He dissented when the court in 1985 overturned the decision.
But, in the end, Rehnquist will be most remembered for Bush v. Gore, in which he and four other members of the court rode to the rescue of Republican George W. Bush. The majority halted the recount of thousands of disputed ballots in Florida, and thereby handed Bush the presidency. By deciding a political question and by employing an equal protection analysis that is unsupported in law, the decision is widely-regarded by legal scholars as one of the least-defensible in court history.
There is really no doubt that Rehnquist and the other joining justices all with strong Republicans ties would have decided the case differently had Al Gore been been trying to stop the counting of votes.
In his excellent book, Overruling Democracy, Jamin B. Raskin writes: The unifying philosophy of the Rehnquist Court is not federalism, judicial restraint, strict textualism, or original intent but hostility to popular democracy, especially when it involves impowerment of racial or political minorities. The stance is opposite of the Courts proper role, which should be to faithfully interpret the constitution through the lens of participatory self-government and render universal justice in defense of the rights and liberties of all Americans.
Those powerful words should provide the framework for the Senate in considering whether John Roberts should be confirmed to replace Rehnquist. Unfortunately, that may be asking too much.
Mr. McCartan is a lawyer and freelance writer living in Olympia, Washington.