Sunday, September 11, 2005

Rehnquist remembered, Rashomon-style

Clint Bolick and Alan Dershowitz have written two very different--yet only occasionally directly contradictory--rememberances of Chief Justice William Rehnquist. Bolick, in a piece distributed by the Goldwater Institute and published in the Arizona Republic, describes Rehnquist as a conservative, moderating influence on a liberal court, advocating state's rights, school choice, and presiding over a court that has been "usually (though less frequently lately) siding with individual liberty over state power." Dershowitz, on the other hand, in a piece published on the Huffington Post, describes Rehnquist as a bigot who enjoyed racist and anti-Semitic jokes, who defended the "separate but equal" doctrine in Plessy v. Ferguson as a law clerk for Justice Jackson, and who began his legal career as a Republican thug who obstructed African-American and Hispanic voters at Phoenix polling places.

Bolick gives a more nuanced view that actually addresses more of Rehnquist's work on the court (though less than I would have expected), while Dershowitz emphasizes evidence of Rehnquist's personal character which mostly derives from before he was on the Supreme Court. I was surprised that Bolick didn't mention some of the recent cases (such as Raich v. Ashcroft and Kelo v. New London) where Rehnquist voted for liberty (and was unfortunately in the minority).

Yet I have no doubt that there is accuracy in both descriptions. Bolick has in the past seen people as defenders of liberty who have done much to destroy it, such as former Attorney General John Ashcroft. Dershowitz alternatively takes courageous stands in defense of liberty and crazy stands which oppose it.

One area where I was less than impressed with Rehnquist was on religious liberty, specifically for nonbelievers. He (like the majority) went the wrong way on Elk Grove v. Newdow (the Pledge of Allegiance "under God" case) and (unlike the majority) the wrong way on the McCreary County v. ACLU case (Ten Commandments display in a Kentucky courtroom which included a written statement that the display was "in remembrance and honor of Jesus Christ, the Prince of Ethics").

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