Part 3 of the series, "The Structure of Lies in Conservative Jurisprudence".
“I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleag[u]es, but I think Plessy v. Ferguson was right and should be re-affirmed.” – William Rehnquist, “A Random Thought on the Segregation Cases”, memo prepared as clerk for Supreme Court Justice Robert Jackson, 1952
For a number of reasons, the American people generally have a hard time understanding the significance of judicial nominations, a collective cognitive weakness which conservatives have exploited masterfully as a major strategic component in their ideological warfare over the past 50 years or so. One side of that strategy is the development of a rhetorical framework of pseudo-principles that people can be rallied around—and I'll be discussing that later on as this series progresses. But a more obvious side of that strategy is aggressively hiding, suppressing, or obfuscating clear tell-tale evidence that the general public can understand, and which serves to repulse them. This is the focus of the present diary, along with two more on the confirmations of Clarence Thomas and John Roberts.
In his 1971 confirmation to the Supreme Court, William Rehnquist committed perjury on two separate issues, which were repeated again in 1985, when he was confirmed as Chief Justice. First, he lied about the notorious “Brown memo” quoted above. Rehnquist admitted authorship (which was undeniable) but claimed it was written at the direction of Jackson, and relfected Jackson's views, not his own—even though the “I” who had been “excoriated by 'liberal' colleagues” was obviously not Jackson, but Rehnquist, the only Supreme Court clerk at the time who felt that Plessy should be upheld. Second, Rehnquist lied about his personal, adversarial involvement in voter suppression efforts aimed at minority voters in Arizona in the late 1950s and early 60s. Rehnquist admitted being involved in the efforts, but only as a legal advisor, while a former Assistant US Attorney, James Brosnahan, and others testified that Rehnquist had been personally involved in challenging and intimidating individual voters.
Although views may legitimately differ, political scientist Scott Lemieux makes a credible claim that Rehnquist's pro-segregation Brown memo was not that big of a deal in and of itself, as far as potentially stigmatizing him goes:
As I briefly alluded to in my previous post, I think that one can make a very good case that, in and of itself, the significance given to the memo by Brad DeLong and Matt Yglesias has been overstated. Most importantly, it’s worth noting that the opinion that Plessy should be upheld was the mainstream conservative position at the time; it would be shocking had Rehnquist not supported Plessy. In addition, because two important strains of constitutional interpretation-precedent and originalism-strongly compelled (as of 1952) the claim that Plessy should remain good law, many liberal law professors–not to mention personally liberal Supreme Court Justices like Frankfurter and Jackson–were tortured by the idea of overturning it.
Yet, even if one agrees completely with this assessment, Rehnquist himself apparently did not. He was quite unwilling to stand by what he wrote, insisting instead that the memo represented the views of his boss, Justice Robert Jackson. As explained in a footnote in a previous Brad DeLong post (which contains the Brown memo), taken from Richard Kluger's book, Simple Justice, the evidence against Rehnquist's claim is overwhelming:
**From pp. 328-332 of Richard Kluger (1977), Simple Justice (New York: Random House: 0394722558):
The memo, Rehnquist advised the Senate... had been written at Justice Jackson's request and represented Jackson's views on the segregation cases. The Justice wanted the memo, Rehnquist said, to arm himself when speaking at the conference of the Justices.... If Rehnquist was telling the truth to the Senate in 1971***... the Justice must have undergone a considerable change of heart... little in Burton's notes on Jackson's remarks [during the Court conference on December 13, 1952] resembles any of the thoughts attributed to him in the Rehnquist memo. And nothing in the memo that Jackson himself prepared on the subject in February 1954 remotely suggests that he ever thought that Plessy had been rightly decided...
***There is much evidence... that casts doubt on Rehnquist's account.... Of the two living people who might have corroborated Rehnquist's explanation to the Senate, one.. seemed to conflict with the Rehnquist account, and the other sharply denied it. Rehnquist's fellow clerk, Donald Cronson... cabled a message.... Cronson's explanation raises at least three questions.... If Jackson had requested two memos reaching opposite conclusions on the rightness of Plessy, why did Rehnquist claim that the second memo--the one bearing Rehnquist's initials--represented Jackson's view of the case?...
The other person... Elsie Douglas, Jackson's secretary... told the Washington Post that... Rehnquist had "smeared the reputation of a great Justice." She challenged Rehnquist's assertion that Jackson would have asked a law clerk to help prepare the remarks he would deliver at a conference of the Justices.... She told Newsweek that Rehnquist's account was "incredible on its face."
Without resort to the statements by Cronson or Mrs. Douglas, Rehnquist's attribution to Jackson of the views in the... memo bearing Rehnquist's initials is challenged by internal evidence.... The titles of both memos are strikingly inappropriate to the use Rehnquist claims.... Is it possible that Jackson would have disparaged... "attempts... to protect minority rights"... when Jackson himself wrote many a decision protecting minority rights?...
Is it possible... Robert Jackson would have told his brother Justices... "I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal colleagues, but I think Plessy... should be affirmed"? The "I" in that passage, according to Rehnquist, was supposed to be Jakcson... but where and when might Jackson have been excoriated by his "liberal" colleagues? And what colleagues might those have been?... A far more plausible explanation might be that the "I" of the memo is Rehnquist... referring to the obloquy... by his fellow clerks, who discussed the segregation question over lunch quite regularly, who were... "liberal." Suport for this surmise is lent by an article that Rehnquist wrote in... U.S. News and World Report.... "Some of the tenets of the 'liberal' point of view which commanded the sympathy of a majority of the clerks..." The tellale use of quotation marks around the word "liberal" adds to the suspicion that the "I" of the Rehnquist memo was never meant to be Robert Jackson speaking to his brethren... While Rehnquist claimed his memo was intended to convey Jackson's words and thoughts... the companion Cronson memo... is plainly a memo from a clerk to his Justice...
I quoted the above verbatim, both to give the full flavor of how damning the evidence is against Rehnquist, and to show how much effort is needed to make the case. This last point is crucial: if making the case against Rehnquist takes a lot of work, then simply lying on his behalf is cognitively quite a bargain. If the public has a hard time wrapping its mind around the issues involved in judicial nominations, then simply lying makes a great deal of sense, if one thinks one can get away with it. Clearly Rehnquist thought that he could—and he was right!
But he was still lying. Still committing perjury. And whether it was really necessary or not for the conservative judicial agenda to move forward, Rehnquist himself obviously believed that it was. Perhaps, as Lemiuex says, it was simply the standard conservative view at the time (although Rehnquist was apparently the only Supreme Court clerk who thought that way). But would Rehnquist really want to be making that argument in 1971? Would conservatives as a whole?
I believe the motivations on the second point of perjury are even clearer. No doubt the belief that suppressing minority votes was good was also widespread among conservatives in the 1950s, but personal involvement in harrassing and intimidating individual voters was something else again. It was good that someone did it. Good for underlings. But not for someone headed for the Supreme Court. Especially not with the Brown memo already out there.
Here is Joe Conosan's account from a 2004 story in Salon:
Testifying before the Senate against Rehnquist’s elevation to chief justice in 1986, former Assistant United States Attorney James Brosnahan described an earlier encounter with him, circa 1962. As a Justice Department lawyer, Brosnahan visited Phoenix polling places to investigate alleged civil rights violations:
“The complaints we received alleged in various forms that the Republican challengers were aggressively challenging many voters without having a basis for that challenge …
“Based on my interviews with others, polling officials, and my fellow assistant U.S. attorneys, it was my opinion in 1962 that the challenging effort was designed to reduce the number of black and Hispanic voters by confrontation and intimidation …
“When we arrived, the situation was tense. At that precinct I saw William Rehnquist, who was serving as the only Republican challenger. The FBI agent and I both showed our identifications to those concerned, including Mr. Rehnquist … The complaints did involve Mr. Rehnquist’s conduct. Our arrival and the showing of our identifications had a quieting effect on the situation and after interviewing several witnesses, we left. Criminal prosecution was declined as a matter of prosecutorial discretion.”
Under oath, Rehnquist denied Brosnahan’s charges, and based on conflicting testimony from other witnesses, the issue was left sufficiently murky for the Republican-dominated Senate to confirm him. But in his 2001 account of that nomination battle, “The Rehnquist Choice,” former Nixon White House counsel John W. Dean concluded that Rehnquist — who said he didn’t “remember” engaging in voter challenges — had almost certainly lied to the Senate.
A contemporaneous account from the LA Times makes it clear that the evidence against Rehnquist from multiple witnesses was first-hand, while the “evidence” supporting him was purely suppositional in character, and hence, no true evidence at all. First are the witnesses against Rehnquist:
Sydney Smith, now a La Jolla, Calif., psychoanalyst, told the Senate Judiciary Committee that he had seen Rehnquist approach two black men waiting in line to vote in the 1960 or 1962 election in Phoenix, challenge their ability to read and tell them, "I would ask you to leave."
'Know It When I See It'
"I may not be able to define intimidation, but I know it when I see it," Smith said, using words similar to a phrase that the late Justice Potter Stewart used in describing obscenity.
James Brosnahan, a San Francisco lawyer, told of being called at the 1962 election to a south Phoenix precinct as an assistant U.S. attorney to investigate complaints about challenges being made to black and Latino voters.
Brosnahan, whom Rehnquist has acknowledged knowing, said he is "certain" that Rehnquist was acting as a challenger at the polling place and that "a number of people" waiting to vote pointed him out as a person causing problems. "I have no doubt about that," Brosnahan said.
Testifying with the precision and authority of a veteran trial attorney, Brosnahan noted that Rehnquist, at his 1971 confirmation hearings as an associate justice, told the Senate panel that he had tried to arbitrate disputes at Phoenix polling places and had not personally engaged "in challenging the qualifications of any voters."
"This does not comport with my recollection of the events I witnessed in 1962 when Mr. Rehnquist did serve as a challenger," Brosnahan said.
Manuel Pena, an Arizona Democratic state senator, told of being involved in a "close confrontation" with a Republican challenger at the Nov. 3, 1964, election at a Phoenix precinct. He said he recognized the challenger at the 40% Latino precinct as Rehnquist from a newspaper picture he saw a few years later.
Charles Pine, a former state Democratic Party chairman in Arizona, said Rehnquist "is currently suffering from a conventient lapse of memory" in denying voter intimidation. Pine said he saw Rehnquist at the 1962 election approaching voters and asking them: "Are you qualified to vote?"
These are all on-the-spot witnesses. In contrast, supporting Rehnquist, we have the following:
Rehnquist's Republican defenders attempted to counter the allegations of voter harassment with witnesses of their own who disclaimed any such action by the nominee.
James Bush, a Phoenix lawyer, said he worked with Rehnquist in giving legal advice to GOP party workers who were challenging voters in the 1960 and 1962 elections in Phoenix and that he was unaware of Rehnquist's taking part in any challenges.
"We weren't about to waste legal talent as challengers," he said.
Vincent Maggiore, a lawyer and chairman of the Maricopa County Democratic Committee in the early 1960s, said that "at no time did anybody come to me and state that Justice Rehnquist had committed the acts we've heard about for three days."
These are not witnesses in a serious judicial procedural sense. They are “witnesses” only in a theatrical Senate hearing sense. They do absolutely nothing to create reasonable doubt that Rehnquist was involved in voter intimidation in 1962 or that he lied about it in 1971. As it stands, the record clearly indicates that Rehnquist perjured himself—and got away with it.
With the evidence above before us, the question now becomes “Why?” The most obvious reason is that Rehnquist and his supporters did not want us to know his actual record. But it wasn't just his deeds they wanted hidden: it was also both his heart and his mind. In the diary I quoted from above, Lemieux argues that the memo still matters, if not because its position was so outrageous for a conservative of that time:
There is, in fact, a great deal of useful information contained in the content of his memo and its aftermath that can be used to evaluate Rehnquist’s record:
Rehnquist Lied Under Oath.... Had Rehnquist just admitted that the memo reflected his views at the time-which it obviously did-but that he (like many others) had come to see that he was wrong, then I don’t think that the memo would be a particularly big deal. He chose a much more dishonorable course, and that should certainly be a major stain on his historical record.
This we've already covered. The memo also sets the tone for Rehnquist's life-long hostility to civil rights:
Rehnquist on Civil Rights.... Rehnquist had a consistently bad record on civil rights. He opposed civil rights legislation at all levels of government and irrespective of the institution involved, and on the court always (with the appalling exception of Bush v. Gore) advocated a narrow interpretation of the equal protection clause. The one twist is his late-in-life softening on gender equality....
But two other points are less readily grasped by non-lawyers, and deserve a bit more scrutiny:
Rehnquist on Federalism. As iocaste correctly points out, there’s a lot of valuable information about Rehnquist in the content of the memo, beginning with his claim that the court should limit itself to policing boundaries among branches and levels of government, not individual rights claims. (Indeed, this is the strongest evidence against Rehnquist’s subsequent disavowals of the memo; it’s remarkable how little his judicial philosophy changed since he was a clerk.) I’ll come back to the federalism issue in a subsequent post, but for now I’ll add one thing: his claim that the court’s power has been most effectively preserved when it sticks to separation-of-powers and federalism cases could not be more wrong. The two largest crises of legitimacy faced by the court up to that time-Dred Scott and the constitutionality of the New Deal-arose because of attempts by the Court to limit the powers of Congress....
Rehnquist’s Brand of Conservatism. The last interesting thing about the memo is that it’s very revealing about his particular version of conservatism. “Nihilist” would be too strong, but maybe “indifference to claims about justice” with some Tory fatalism thrown in captures it..... He cared about federalism, but no issues of substantive justice interested him much. Again, it’s remarkable how little that changed over the years.
DeLong makes a number of points about the memo, slicing things a bit differently, but with some significant overlap. Most significantly, he also highlights Rehnquist's fixation on structural constitutional issues vs. his indifference to individual rights, along with his fatalism. But he frames his criticism in terms of Rehnquist abysmally misunderstanding US history, as well as the basic thrust of the Constitution, and centuries of Anglo-American law—in short, criticisms that go to the very heart of Rehnquist's lack of intellectual and cultural fitness to be a federal judge, much less to sit on the Supreme Court. His gloss on Rehnquist's beliefs in the memo is as follows:
More interesting, from my perspective at least, are Rehnquist's beliefs that:
- Jimmy Madison was an idiot for including individual rights in the Constitution: "The Constitution, of course, deals with individual rights, particularly in the first Ten and the fourteenth Amendments. But as I read the history of this Court, it has seldom been out of hot water when attempting to interpret these individual rights."
- No matter what the Constitution says, the Supreme Court cannot protect minority rights of any kind, and it should not try, for "in the long run it is the majority who will determine what the constitutional rights of the minority are."
- The Warren Court's attempt to use the law to help change the hearts and minds of Americans toward racial equality is doomed to failure: "One hundred and fifty years of attempts on the part of this Court to protect minority rights... have been sloughed off, and crept silently to rest.... [T]he present Court... must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men."
- The FDR-era "Switch in Time That Saved Nine," in which the Supreme Court decided to cease blocking New Deal measures rather than continue to do so and trigger the passage of constitutional amendments explicitly increasing the government's power to regulate the economy, was a principled recognition by the Court of the general principle that "...where a legislature was dealing with its own citizens, it was not part of the judicial function to thwart public opinion."
- In an extraodinary misconstrual of U.S. history in the 1850s, Chief Justice Roger Taney's holding in Dred Scott v. Sanford that Congress could not prohibit slavery in any U.S. Territory was not an attempt to give slavery a chance to expand in U.S. Territories beyond its Missouri Compromise and Kansas-Nebraska Act boundaries, but was instead a defensive move: an "effort to protect the slaveholders from legislative interference." (Never mind that the legislative "interference" was at the time of Taney's decision more than seventy years old, dating back to Thomas Jefferson's Northwest Ordinance prohibiting slavery from the Northwest Territories between the Ohio, the Mississippi, and the Great Lakes.)
Now the fifth of these--Roger Taney as a principled defender of minority rights against legislative encroachment--is a very strange belief for a modern American to have. The fourth would be a strange belief for a non-lawyer to have, but lawyers spend a lot of their time asserting that a court in the past did X for reason Y even when it is plain that Y did not feature in the court's thinking at all. And the third was clearly wrong.
But the first and second are by far the strangest and most bizarre. It is indeed the case that a sufficiently large, determined, and durable majority could repeal the Thirteenth Amendment and reduce African-Americans to slavery, and repeal the First Amendment and establish a press completely controlled by the Ministry of Truth. But until those amendments are repealed, the prohibition against slavery and the freedom of the press are part of the supreme laws of the land that it is the business of the Supreme Court to enforce. And Rhenquist's first? That the Court should not attempt to "interpret" any of the Constitution's provisions protecting individual rights? It seems to fundamentally miss the point of what the American Constitution is, nay, more, to miss the entire point of Anglo-Saxon jurisprudence since Magna Carta itself. Rehnquist seems to have simply never gotten the point that, as Jefferson put it, here in America we believe that people have rights and that governments are established to secure those rights--that the government is our servant, not our master.
It is a very, very odd thing indeed for William Rehnquist to be Chief Justice of the United States of America.
Odd? Try “bizarre”. Because the way that DeLong puts it, there can be little doubt that Rehnquist's views of American history and jurisprudence are wildly at odds with reality. Whether or not he realized it consciously, there was a very real potential that if he honestly owned the Brown memo as his own, the views therein would lead to him being justly seen as a bizarre figure, utterly unfit to sit on the Court. Indeed, as I'll argue in a future installment, this is precisely what happened Robert Bork: far from being a witch-hunt, it was a rare case in which intense public scrutiny produced a profoundly informed decision, and America very clearly rejected the conservative vision of what it should become. Naturally, from that point on, it became an integral part of the conservative judicial strategy to hide conservative's true views from the public. Their commitment to deception was locked in from there on.
A Final Point: A Somewhat Abstract Lie
There is, however, one final point worth making, because it goes well beyond the confirmation process, into the heart of conservative Supreme Cout jurisprudence. If we look directly at Rehnquist's Brown memo, we find the following:1
Where theoretically co-ordinate bodies of government are disputing, the Court is well suited to its role as arbiter. This is because these problems involve much less emotionally charged subject matter than do those discussed below. In effect, they determine the skeletal relations of the governments to each other without influencing the substantive business of those governments.
As applied to relations between the individual and the state, the system has worked much less well.
This is the core of much of what both DeLong and Lemieux have commented on, but it seems to me it contains something more than they've teased out. The institutional relations that Rehnquist feels comfortable with are presented as, in effect, more rationally tractable, less subjective, or emotional, hence higher, more abstract, more real. They are “above”, whereas the concern for individual rights is both messy and below—in the muck of subjectivity and confusion. Of course, as DeLong points out, this is nonsense. Dredd Scott was as much about institutional relations as it was about individual rights, and Rehnquists failure (refusal?) to see that the two are inextricably bound up in one another is part of his central blindness to the nature of US Constitutional law particularly, and the post-Magna Charta Anglo-American tradition more generally.
Indeed, the division into higher and lower is itself a throw-back to the ancient conservative worldview which modern liberalism has displaced in the process that, among other things, brought us the United States of America. Modern liberalism does not sweepingly reject the concepts of higher and lower, rather it affirms their unity: The highest majesty of the abstract law is reflected in the concrete treatment of the lowliest citizen—or, as Mosaic tradition would inform us, even the lowliest stranger. Different issues may come more sharply into focus dependening on the level of analysis, but being less in focus does not mean that issues disappear, cease to exist. Yet, this is, essentially what conservative legal ideology asserts, one way or another: certain rights, interests, even persons themselves as rightsholders can simply and utterly disappear, if it can be argued that their simply is no place for them in the closed system of institutional arrangements as the conservative mind conceives them. (This is what happened to Lilly Ledbetter, for example. It's what happens to millions of would-be litigants in countless different ways under conservative jurisprudence.)
Although the form of argument involved is quite different in Shelby County vs. Holder, with Rehnquist no longer on the Court, there is still a similar disapprearing act, where the express, constitutionally guaranteed votig rights of concrete individuals vanish into thin air, displaced by a wholly invented “principle” of equal state sovereignty. The black citizens of Shelby County whose constitutional rights are being violated are fundamentally non-existent in the Roberts Court's vision. It is Shelby County—one of those insitutions Rehnquist says can best be dealt with by the courts—which alone is actually real. Also disappreared, of course, is the US Congress, and the 15th Amendment which explicitly empowers the Congress to act, but they are disappreared. Dredd Scott and Shelby County both disempowered Congress, as well as black citizens, but did so in different ways. However, both engaged in forms of misdirection of attention in order to do so.
Next up: Clarence Thomas!