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The Rehnquist Court : Bill Rehnquist Was Once Considered An Extremist. Now His Views Almost Always Become The Law Of The Land.

September 29, 1991|DAVID G. SAVAGE | David G. Savage covers the Supreme Court for The Times.

He won a position as a clerk for Justice Robert H. Jackson, and in February, 1952, after a drive across country in an unheated Studebaker, Rehnquist walked up the steps of the Supreme Court for the first time. The country was in the depths of the Cold War, and as Wisconsin Sen. Joseph McCarthy feverishly ferreted out suspected Communists in the government, Julius and Ethel Rosenberg awaited execution for having smuggled atomic secrets to the Soviet Union. Unlike most of his fellow law clerks, Rehnquist supported the efforts of his home-state senator and wished a quick end for the Rosenbergs. In a later letter to Justice Jackson, he bemoaned the long delay in executing the Rosenbergs and wondered why "the highest court of the nation must behave like a bunch of old women every time they encounter the death penalty."

In memos to Jackson, he also railed at "the liberals" who were then breaking down segregation in the South. When the court was asked to end the Southern system of all-white primary elections, Rehnquist urged that the appeal be dismissed. "I take a dim view of this pathological search for discrimination," he wrote. "It is about time the court faced the fact that the white people of the South don't like the colored people." In criminal cases, he questioned why convictions must be overturned on "technicalities"--that is, when the defendant's constitutional rights had been violated. Though Rehnquist's legal views were rigid, he was not.

"He was funny and charming, very bright and quick. He could give you all the good conservative arguments on any issue," says Donald Trautman, then a clerk to Justice Felix Frankfurter and now a Harvard Law School professor. "He had no sympathy for criminal defendants--none. When you talked about the problem of the cities or the poor or blacks, it was clear he had no understanding. It was a universe he didn't comprehend."

Others who clerked during that time echo Trautman but do not want to be quoted by name because they still practice law.

"I remember when that year was over, my wife and I sat down and made a list of the ones we thought would make a name for themselves," a prominent attorney says. "We put down seven names. There were 18 of us in all. Bill Rehnquist's name was not on the list. He was too fixed, too narrow in his views."

The young attorneys who knew him in the early 1950s say Rehnquist's opinions appear unchanged today, a perception he has not sought to dispute. "I can remember arguments we would get in as law clerks," Rehnquist told an interviewer in 1985, "and I don't know that my views have changed much from that time."

As a young lawyer in Phoenix in the mid-1950s, Rehnquist denounced the "left-wing philosophers" on the Warren court who were showing "extreme solicitude to Communists and other criminals." He was active in Barry Goldwater's presidential campaign in 1964. At home in Phoenix, he spoke out against a proposed city ordinance that gave blacks, Latinos and Jews the right to be served in local motels, hotels and restaurants. "It is, I believe, impossible to justify the sacrifice of even a portion of our historic individual freedom for a purpose such as this," he told City Council members. They ignored his advice and passed the measure unanimously.

After Richard M. Nixon won the presidency in 1968, Rehnquist joined the Justice Department as a protege of Dep. Atty. Gen. Richard Kleindienst, another Arizonan. There, he developed a reputation for mild manners and bold views. He drew up a proposed constitutional amendment to end busing for desegregation. As the top legal theorist of the Nixon Administration, he defended government wiretapping, "no-knock" searches, the Army's surveillance of private citizens and the May Day arrests of Vietnam War protesters.

In 1971, Nixon rewarded his legal adviser with a seat on the Supreme Court. From the start, Rehnquist took the most conservative position on every major issue. He fought against equal rights for women but for the rights of white males who claimed to be victims of affirmative action. He supported capital punishment and slammed his colleagues for "tinkering" with the death penalty. He disagreed with giving broad free-speech rights to pornographers and protesters. His clerks dubbed him the "Lone Ranger," because he so often stood alone on the far right of what was then a moderate-to-liberal court.

THE LONE RANGER IS NOW THE VOICE OF A SOLID COURT MAJORITY.

With every new member of the court since 1967 appointed by a Republican President, the conservative justices were expected to reshape the high court during the 1970s and '80s. But during the '70s, the liberals won landmark victories at the court, which determined that the Constitution forbids sex discrimination, protects the right to choose abortion and allows government and employers to use affirmative action to benefit racial minorities.

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