Sunday Book Review|The Justice Dissents
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Sunday Book Review
The Justice Dissents
'The Partisan: The Life of William Rehnquist,' by John A. Jenkins
By ADAM COHEN NOV. 16, 2012
William Rehnquist is sworn in by Warren Burger as his wife and Ronald Reagan look on. Credit Smithsonian Institution/Collection of the Supreme Court of the United States
When Jimmy Lee Gray was sent to the Mississippi gas chamber in 1983 the procedure went horribly wrong. He gasped for breath and convulsed wildly, slamming his head against a metal pole hard enough to shake the room. The episode caused widespread revulsion, and Mississippi eventually switched from gas to lethal injection.
Weeks after the botched execution, Justice William Rehnquist lamented the Gray case in a speech at the University of Arkansas. Rehnquist was not troubled by the gruesomeness. He was disturbed by the number of times the condemned man had been allowed to challenge his sentence in federal and state court.
This focus on speeding the machinery of death, and unconcern about how it functioned, was fully in character. Rehnquist — who served on the Supreme Court 33 years, 19 as chief justice — was a man on an ideological mission. Richard Nixon had handpicked him to do battle against the framework of rights that liberal judges had created in the 1960s. In a phone call congratulating him on being confirmed by a skeptical Senate, Nixon had offered a grim benediction: "Just be as mean and rough as they said you were."
Rehnquist's struggle to reshape American law in his and Nixon's image is the central story line of John A. Jenkins's engaging and perceptive biography, "The Partisan." On a court in which justices often evolve away from the views they arrived with, Rehnquist was for years a conservative North Star. In the end, however, he never achieved his legal counterrevolution, because of a combination of being too fixed in his beliefs and, ultimately, not fixed enough.
There does not appear to be any ­Rosebud-​like explanation for how Rehnquist came by his far-right politics. He was, prosaically, a product of his time and place. He grew up in an ardently anti-New Deal family in Shorewood, Wis., a village outside Milwaukee. He attended the sort of conservative, all-white high school that could — and did, in his senior year — hold a Harlem-themed prom, complete with "decorations in the form of Negro heads."
When he left Shorewood, Rehnquist began his conservative Pilgrim's Progress. He enlisted to fight in World War II and ­eagerly read "The Road to Serfdom," Friedrich A. Hayek's classic anti-­Communist manifesto. Later, as a Stanford undergraduate, he fell under the sway of a prominent conservative constitutional law professor. After a brief graduate school stint at Harvard — where he found the politics unpleasantly liberal — he attended Stanford Law School.
It was while serving as a law clerk to Justice Robert Jackson that Rehnquist the partisan emerged. He arrived when the court was considering Brown v. Board of Education and wrote a vigorous memo urging the justices to reject the claim for integration and reaffirm Plessy v. Ferguson's "separate but equal" doctrine. In another memo, he argued against ending Texas' version of the "white primary," which prevented black voters from participating in elections in a meaningful way.
Rehnquist settled in Phoenix, where he practiced law with a sideline in politics. He was one of just three people out of 33 to testify against a city ban on discrimination in public accommodations, and in election season, he was in charge of "ballot security" for the Republicans, challenging black voters at the polls on literacy grounds. When Arizona's native son Barry Goldwater won the Republican nomination for president in 1964, Rehnquist was firmly planted in the inner circle. Though that "choice, not an echo" campaign failed epically, Rehnquist was catapulted four years later to a top position in the Nixon Justice Department. As the assistant attorney general for the Office of Legal Counsel, he was point man for the administration's hard-knuckle response to anti-Vietnam War protesters — or, as he called them, "new barbarians."
When a Supreme Court vacancy opened in 1971, Nixon did not need to look far. Civil rights groups and liberals tried to block Rehnquist's nomination, armed with a Newsweek article on his pro-Plessy memo. Rehnquist argued, implausibly, that the views were Jackson's, not his, and the Senate confirmed him comfortably, 68-26.
Rehnquist arrived at the court just in time to dissent from Roe v. Wade, the landmark 7-2 ruling recognizing a right to abortion. Justices often try to build alliances, but that was not Rehnquist's way. He dissented alone so often that his law clerks presented him with a Lone Ranger doll. Rehnquist had a lighthearted side. He played practical jokes; he loved placing small bets with colleagues; he dashed off limericks during oral arguments. His rulings, however, were a somber drumbeat of rejections of the claims of blacks, women, workers and criminal defendants.
In 1986, Ronald Reagan nominated Rehnquist to be chief justice, and the lone ranger was suddenly at the center of the action. It was a conservative court, more so as the years passed, which could have provided Rehnquist the votes he needed to finally achieve his and Nixon's dream — but that was not how it worked out. When Rehnquist died in office in 2005, he had presided over a revolution that did not happen.
One reason for this was Rehnquist's insistence on remaining a lone ranger to the end. He did not engage in the judicial statesmanship and collegial wheedling that were necessary to win majorities. There was also the fact that some of his conservative colleagues were stubbornly independent. In 1992, the Rehnquist court had a clear opportunity to overturn Roe, but two members of the conservative bloc — Sandra Day O'Connor and Anthony Kennedy — slipped away, joining an opinion that ended up reaffirming Roe for years to come.
In some cases, it was Rehnquist who held back. After years of promoting states' rights — or "federalism" — and scoring some big victories, he surprised court-watchers by writing a decision holding that Congress could force states to give their employees family and medical leave. He may have gone "wobbly," as Margaret Thatcher might have said, from watching the struggles of his daughter, a single mother.
Jenkins's judicious narrative has one regrettable lapse: It gives short shrift to Bush v. Gore. That momentous ruling does not get its own chapter as, say, Rehnquist's love of betting does. Jenkins, the president and emeritus publisher of CQ Press, argues that Rehnquist's role must have been "relatively minor" since another justice reportedly wrote the unsigned majority opinion. It is hard to believe, though, that the great partisan who cut his legal teeth challenging black voters was not deeply involved in stopping the Florida vote count, no matter who wrote the decision. In any case, attention must be paid, since — when the historical dust settles — nothing the Rehnquist court did will have mattered more.
Jenkins concludes that Rehnquist's greatest influence was serving as the model for a new breed of ideological justice, like his former law clerk, the current chief justice, John Roberts. He argues that this model of partisan is purer than Rehnquist — and points out that, through 2011, Roberts "never provided the crucial fifth vote for the liberal bloc." True enough, but then this year Roberts defied expectations and did provide the liberals with a crucial fifth vote — and national health care was upheld as a result.
Therein lies a moral of sorts. There is no denying that ideological justices have scored some important victories over the years. But Rehnquist's paltry legal legacy, and Roberts's surprising vote upholding health care, are reminders that even in this age of vastly heightened judicial partisanship, sometimes when we least expect it the center does hold.
THE PARTISAN
The Life of William Rehnquist
By John A. Jenkins
Illustrated. 330 pp. PublicAffairs. $28.99.
Adam Cohen, a former member of The Times's editorial board, is the author of "Nothing to Fear: FDR's Inner Circle and the Hundred Days That Created Modern America."
A version of this review appears in print on November 18, 2012, on Page BR22 of the Sunday Book Review with the headline: The Justice Dissents. Today's Paper|Subscribe