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FREEDOM WATCH
Rehnquist’s record of shame
BY HARVEY A. SILVERGLATE
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Everyone I’ve spoken with who knew the late chief justice William H. Rehnquist agrees that he was the quintessential gentleman, respectful of colleagues and underlings, and an enormously effective manager of the Supreme Court’s business. But the maxim about saying nothing but good things concerning the deceased should not prevent one from assessing the man’s judicial record. Though it is difficult, and usually unfair and inaccurate, to classify a Supreme Court justice in terms of judicial philosophy (See "Passing Judgment," Freedom Watch, Boston Phoenix, September 2, 2005), Chief Justice Rehnquist was almost robotically consistent in one category of cases throughout his 34-year tenure on the nation’s highest court. One could have won substantial money betting on where Rehnquist would come out in a given case when it raised a liberty issue between a citizen and the government. The citizen almost always lost. The occasional exceptions generally fell into a particular subcategory — where the citizen was being put upon by the federal government in an area where the states have historically had sole jurisdiction. Rehnquist’s particular brand of conservative philosophy — a social conservatism much at odds with libertarian conservatism — led him to cast many votes against liberty, sometimes with the majority and sometimes in lonely dissent, in some of the most important civil-liberties and civil-rights cases during his tenure: in Roe v. Wade (1973), he dissented from a majority ruling sharply limiting the states’ power to criminalize a woman’s access to abortion; in Bob Jones University v. United States (1983), his was the lone dissent in a decision holding that racially discriminatory private colleges were not entitled to tax-exempt status; in Batson v. Kentucky (1986), he was one of two justices who voted against holding that it is unconstitutional to veto a prospective juror simply on account of race; in McCleskey v. Zant (1991), he voted with the majority to severely restrict a state prisoner’s access to the federal courts to vindicate federal-constitutional rights; in Texas v. Johnson (1989), he dissented from the majority’s ruling that flag-burning was protected by the First Amendment; in Bowers v. Hardwick (1986), he voted with the majority to uphold the criminalization of homosexual sodomy, and then dissented from the 2003 reversal of that ruling in Lawrence v. Texas, which extended personal privacy rights to gays; in Romer v. Evans (1996), he dissented from probably the most important gay-rights ruling in Supreme Court history, which held that gay men and lesbians as a group could not be deprived of the protection of generally applicable civil-rights laws; and in Rasul v. Bush (2004), he disagreed with the majority that detainees at Guantánamo Bay had access to the federal courts. The list goes on. It is a long one.
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