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A hate supreme
As the end of the Rehnquist era nears, it’s time to reckon with the chief justice’s segregationist past

FROM THE TENOR of recent reports, it seems we may have seen Chief Justice William Rehnquist’s last days on the bench. If so, we will soon be treated to retrospectives on his life and career. But to completely and fairly capture the man, those bios should not gloss over Rehnquist’s ardent and active support of racial segregation in the years before he joined the Supreme Court, when he was a private lawyer in Phoenix, Arizona.

Rehnquist’s Phoenix years have rarely drawn attention. They surfaced briefly in 1971, when Rehnquist was nominated to the Supreme Court, and again in 1986, during Senate hearings to confirm his appointment as Chief Justice. In both cases the charges failed to derail confirmation — since he denied them under oath — and were quickly forgotten. But a Phoenix review of the charges, including exclusive interviews with a half-dozen people who witnessed his activities, and a review of the Congressional Record and other documents, shows that Rehnquist had an abiding commitment to racist social policies during his pre–Supreme Court years.

"Rehnquist was what I would call a philosophical racist," says George Brooks, president of the Phoenix NAACP chapter from 1963 to 1972, in an interview with the Phoenix earlier this year, "one who intellectually believed that the races are separated by a distinction marked by tradition, and by logic."

Many other segregationists of the time — Strom Thurmond, notably — later acknowledged their views and claimed to have changed. But Rehnquist, in the process of ensuring his confirmation to the Supreme Court and later his promotion to the center seat on the bench, has denied that he wrote segregationist arguments as a Supreme Court clerk — which he did; that he agreed to a segregationist property deed when buying a home in Phoenix — which he did; that he personally harassed minorities to prevent them from voting — which he did; that he advocated keeping schools segregated — which he did; and that he actively fought against civil-rights laws — which he did.

Most of these lies were told under oath, points out John W. Dean, former White House counsel — and the man who first recommended Rehnquist to President Nixon as a potential nominee. In a telephone interview this week, Dean remarked that Rehnquist’s presiding over the impeachment trial of Bill Clinton for the crime of lying under oath was "a great irony."

Many African-Americans had harsher terms in mind four years ago, when Rehnquist’s court halted the recount of Florida ballots — disproportionately in black districts — and then declared George W. Bush president, using as its legal argument a tortured expansion of the equal-protection clause that Rehnquist, as a so-called strict constructionist, has always made as narrow as possible for minorities.

REHNQUIST SPENT 16 years in Phoenix, working as a private-practice attorney, from 1953 to 1969. He arrived there at age 28, after spending two years as a law clerk for Supreme Court justice Robert H. Jackson. During Rehnquist’s two years clerking for Jackson, the Supreme Court handled several sensitive racial issues, and Rehnquist authored some controversial papers — none more so than the memo "A Random Thought on the Segregation Cases," written as the court considered Brown v. Board of Education. In it, he argued that the "separate but equal" doctrine of Plessy v. Ferguson "was right and should be affirmed." During his 1986 confirmation hearing, Rehnquist insisted that the memo, written in the first person, was meant to characterize Jackson’s views, not his own; this has been convincingly rebutted, says Edward Lazarus, author of Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Dean, for instance, picked the argument apart in his 2001 book, The Rehnquist Choice, as did Richard Kluger in Simple Justice, his 1976 classic on Brown v. Board of Education.

In another memo from his Jackson clerkship, however, unquestionably expressing his own thoughts, Rehnquist wrote: "It is about time the Court faced the fact that the white people [in] the South don’t like colored people."

In Phoenix, Rehnquist owned a home in an affluent part of what was a very segregated city, with a deed specifying that he could not sell or rent to "any person not of the white or Caucasian race" — a clause he later claimed not to have noticed.

But in fact Rehnquist was acutely aware of racial issues, and was not shy about his views at the time. As late as 1967 he argued against school desegregation in a letter to the editor printed in the Arizona Republic. In it, he wrote that the school superintendent’s " ‘integration program’ for Phoenix high schools, is distressing to me."

Earlier, from 1956 through 1964, Arizona’s legislature tried, and failed, to pass a public-accommodation law — making it illegal for private businesses such as hotels and restaurants to refuse service to people on the basis of race. Rehnquist was a leading voice against the law. Brooks recalls one evening, when he and other civil-rights activists were picketing in favor of the public-accommodation bill in front of the Arizona State House. Rehnquist emerged from the building, where he had been representing Republicans in an unrelated hearing. "He came to accost us," Brooks says. Without any prompting, Rehnquist approached Brooks in the picket line and angrily expressed his opposition to the proposed law. "He remonstrated against us," Brooks says. Others have attested to the altercation, which Rehnquist says didn’t happen — even claiming under oath, to Brooks’s amusement, that he did not know anyone named George Brooks.

For eight years, state legislators voted down the public-accommodation bill time and time again, and by 1963 Phoenix was rife with lunch-counter sit-ins, marches, and demonstrations. Finally, in 1964, Brooks spearheaded a local public-accommodation bill in Phoenix. When the Phoenix City Council took public testimony on the ordinance, Rehnquist spoke against it.

A document obtained by the Phoenix from Phoenix City Hall archives lists all those who spoke for and against passage: 56 names are listed as "pro," and only six as "con." One of those six is William Rehnquist. The ordinance, he said, was "an assault on the institution" of private property, according to a transcript entered into the Congressional Record during Rehnquist’s 1986 confirmation hearings.

"He was gutsy," says Brooks, who was one of the "pro" speakers. "He was the only person of substance who spoke against it."

The day after Rehnquist testified, the council passed the ordinance unanimously. Undeterred, the future chief justice published a lengthy letter to the editor in the Republic. In that letter, also included in the 1986 Congressional Record, Rehnquist called the ordinance a "mistake," saying it "summarily does away with the historic right of the owner of a drug store, lunch counter, or theater to choose his own customers."

Confronted with this evidence of his segregationist views during his 1986 confirmation hearings, Rehnquist said he had since changed his mind — not about the morality of racial discrimination, but about whether black people were serious about it. "I have come to realize since, more than I did at the time, the strong concern that minorities have for the recognition of these rights," he said. "At the time" was less than a month before Congress passed a national public-accommodation law as part of the Civil Rights Act.

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Issue Date: November 26 - December 2, 2004
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