William Rehnquist Was the Original Trump Judge
Two decades after Rehnquist’s death, a new generation of conservative activists is scoring life-tenured federal judgeships by following in his unabashedly bigoted footsteps.
In March 1954, the Senate formally confirmed Earl Warren as the new Chief Justice of the United States. One month later, a young lawyer in Arizona who’d recently clerked at the Supreme Court was already so incensed about Warren’s brief tenure that he wrote a letter to his former boss, Justice Robert Jackson, to complain about it.
“Most everyone here was quite disappointed by the nomination of Warren to the Chief Justiceship,” wrote William Rehnquist, who was then practicing at a law firm in Phoenix. Warren, Rehnquist continued, lacked the “experience” for the job, and did not possess sufficient “ability to think and write about law.” Furthermore, although Rehnquist told Jackson that he’d read only a “few” of Warren’s opinions, he said that they had “not been very good.” At the time, Warren had written all of four opinions, according to John A. Jenkins, author of the 2012 Rehnquist biography The Partisan; three of those opinions had been unanimous.
Most twentysomething lawyers in the elite circles in which Rehnquist ran would not so cavalierly dismiss the literal Chief Justice of the United States as an underqualified dunce, much less in a pontificating letter to one of his eight colleagues. (In The Partisan, Jenkins prefaces Rehnquist’s letter by diplomatically noting that Jackson never replied to it.) But in 1954, William Rehnquist was not most twentysomething lawyers. He was a budding conservative activist with elite credentials who was already brimming with contempt for anyone he viewed as intellectually inferior to him, and/or who sat even a little to his left on the ideological spectrum.
As Rehnquist became a bigger player in Republican politics, he continued to complain about Warren’s purported unworthiness to anyone who would listen. In remarks to a local GOP group in 1957, Rehnquist excoriated the members of the Court’s “left wing”—Warren, Justice William O. Douglas, and Justice Hugo Black—for “making the Constitution say what they wanted it to say.” He also called Warren a “fine California politician,” in the derogatory sense of the phrase, and claimed that Warren had been “58th out of 65 in his law school class.”
In the years that followed, as the Civil Rights Movement slowly yielded the most meaningful expansions of civil rights since Reconstruction, Rehnquist waged his own miniature war on progress. In 1964, he testified before the Phoenix City Council in opposition to a proposed antidiscrimination ordinance; when lawmakers passed the ordinance anyway, he called it a “mistake” and an assault on business owners’ “individual freedom.” During this period, Rehnquist was also instrumental in Operation Eagle Eye, a sweeping Republican voter suppression initiative. In 1962, he reportedly hung out at local polling places to personally challenge the qualifications of Black and Latino voters, presenting them with copies of the Constitution and demanding that they read portions aloud in order to prove that they could pass Arizona’s literacy test. (The Voting Rights Act, which bans such tests, did not pass until 1965.)
“You’re not able to read, are you?” one witness remembered Rehnquist saying to two Black men. “You have no business being in the line. I would ask you to leave.”
Notwithstanding the Supreme Court’s 1954 decision in Brown v. Board of Education, in 1967, Rehnquist publicly opposed an integration plan for Phoenix schools, arguing that the function of public education is to “educate children,” and that it thus has no business “fostering social change.” Again, Rehnquist took to a local newspaper to explain himself: “We are no more dedicated to an ‘integrated’ society than we are to a ‘segregated’ society,” he wrote.
Of these demonstrations of what I would characterize as alarmingly casual racism, only Operation Eagle Eye played any significant role during either of Rehnquist’s Supreme Court confirmation hearings. (Lawmakers understandably focused most of their attention on a 1955 memo Rehnquist wrote as a Supreme Court clerk, in which he argued that Plessy v. Ferguson, which the Court overruled in Brown, was “right and should be affirmed.”) Under questioning from senators in 1986, when President Ronald Reagan nominated him to succeed Warren Burger as chief, then-Associate Justice Rehnquist did not confirm the allegations, but did not convincingly deny them either: He said he did not “think” he’d “personally” challenged any minority voters, but was also “not entirely sure,” and was “just not sure my memory is that good.”
Incredibly, this was a satisfactory answer for 65 senators, who voted to confirm him shortly thereafter. Rehnquist went on to serve as chief until his death in September 2005.
Two decades later, as a different made-for-TV reactionary president stuffs the federal judiciary with young, ambitious culture-war types who are eager to implement their shared policy agenda, it is striking how closely their early-career résumés match Rehnquist’s. Like Trump’s nominees, Rehnquist had a long history of right-wing advocacy that left no doubt about his bona fides. Like Trump’s nominees, Rehnquist abhorred “judicial activism,” at least when ostensibly perpetrated by judges he did not like. Even his scorn for “fostering social change” in schools is a sort of proto-rant against the scourge of woke culture that is, in the estimation of every Republican lawyer awaiting a call from the White House, taking this country apart brick by brick.
What Rehnquist understood then, and what Trump’s nominees understand now, is that within the conservative legal movement, the way to get power is not to hide who you are. It is to put who you are fully on display, and trust that the right people will notice.
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