Was Chief Justice William Rehnquist a Racist?

Chief Justice Rehnquist was a law clerk to Supreme Court justice, Robert H. Jackson. Justice Jackson also was the chief United States prosecutor at the Nuremberg war crimes trials and according to historian David Irving, Nuremberg: The Last Battle, the justice was a fair and brilliant defender of due process and the protection of defendants’ rights.

Justice Jackson also opposed the relocation of Japanese Americans into concentration camps during World War II, and cast a courageous dissent in the draconian and disgraceful Korematsu v. United States 1944.

Unfortunately, his future law clerk lacked such judicial temperament. The future Chief Justice was opposed to Brown v. Board of Education of Topeka 1954, perhaps the greatest decision of the Supreme Court in the 20th Century, because he supported apartheid, Jim Crow and public school segregation. This racialist law clerk even defended in a memorandum the infamous and overtly racist Plessy v Ferguson decision of 1896 that affirmed American apartheid and segregation with its odious “separate but equal” doctrine. Here is a white privileged male who went to Stanford and Harvard with an obvious lack of advocacy for racial justice and equality. It must be presumed he disagreed with Justice Harlan, the sole dissenting justice in Plessy, who declared this decision “as pernicious as the decision made…in the Dred Scott case.” I am quite sure that had Chief Justice Rehnquist been on the court in 1857, he would have voted to deny African-Americans citizenship, the right to sue in court, the right to be free once moved onto free soil (much less oppose the principle of slavery) and that they should be considered less than equal to whites.

The most gifted Supreme Court reporter in the country, the New York Times’s Linda Greenhouse, reported then clerk Rehnquist wrote: “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my ‘liberal’ colleagues.” Really? It’s those awful liberals who oppose apartheid and Jim Crow? Justice Harlan was from Kentucky, from a slave holding family and denounced Plessy! Chief Justice Rehnquist never entirely abandoned, despite some laconic disclaimers, his odious rejection of the law as an engine of social equality. He opposed affirmative action in higher education. If he opposed public school desegregation one should not be surprised that he would not support African-Americans sitting in college classrooms with those of the alleged superior, white race. Justice Rehnquist was the only member of the court, not even Justice Antonin Scalia or Justice Clarence Thomas agreed, that wanted to maintain Bob Jones University’s tax-exempt status despite its racist discriminatory policies. It would not allow students to date or marry other humans unless they were of the same race. This was in 1983, the eleventh year of Justice Rehnquist’s lengthy tenure on the Supreme Court. I wonder if he disapproved of the fact that one of his future “brethren”, Justice Clarence Thomas, would marry “outside” of his race.

I am sure this bias will manifest in new ways with his slick, glib successor, Judge John G. Roberts Jr. We shall see and I will gladly correct myself if Chief Justice Roberts proves me wrong. I am not alleging Judge Roberts is racist or harbours a pre-Warren court commitment to racial separation and Jim Crow. However, I am not optimistic that this individual can effectuate a compassionate conservatism given his unabashed admiration and association with the late Chief Justice. Conservatives, as liberals may use their own politics to shape and interpret the law. Activism is ideologically neutral. Basically the constitution means what five members of the Supreme Court says it means.

PS. Yes Chief Justice Rehnquist did support state medical-marijuana laws and the retention of the Miranda rulings. I recognise today, September 7, is his funeral and that his family should be respected and consoled at this time. He should be praised for those positions but in the area of race, this man left a legacy that was revelatory of deep seated misgivings in advancing justice and racial equality. He contemptuously dismissed the notion of “equal justice under the law.” I must view his service on the court as a failure and his legacy a negative one of tragic refusal to empathise and apply the law in a non-discriminatory manner. {Updated Jan. 4, 2007}

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