Morality Imposed

The Rehnquist Court and the State of Liberty in America

Stephen E. Gottlieb

• Publisher: NYU Press
• Year: 2000
• ISBN:
  9780814732700
• Topic: Derecho
• Subtopic: Tribunales

We like to think of judges and justices as making decisions based on the facts and the law. But to what extent do jurists decide cases in accordance with their own preexisting philosophy of law, and what specific ideological assumptions account for their decisions?

Stephen E. Gottlieb adopts a unique perspective on the decision-making of Supreme Court justices, blending and re-characterizing traditional accounts of political philosophy in a way that plausibly explains many of the justices' voting patterns.

A seminal study of the Rehnquist Court, Morality Imposed illustrates how, in contrast to previous courts which took their mandate to be a move toward a freer and/or happier society, the current court evidences little concern for this goal, focusing instead on thinly veiled moral judgments. Delineating a fault line between liberal and conservative justices on the Rehnquist Court, Gottlieb suggests that conservative justices have rejected the basic principles that informed post-New Deal individual rights jurisprudence and have substituted their own conceptions of moral character for these fundamental principles.

Morality Imposed adds substantially to our understanding of the Supreme Court, its most recent cases, and the evolution of judicial philosophy in the U.S.

1
Origins

Who is on the Court matters. So also where they came from. Experience provides the background, the challenges, the memories and justifications around which we all build our beliefs. People react in multiple, often unexpected ways to the experiences that “shape” them. Each of the justices tried out conflicting ideas and discarded some. Some have surprised us. Some have “grown” in liberal parlance, “disappointed” or “flipped” in conservative parlance, as they moved from right to left in the course of their service on the Court. Experience is not destiny, but experience matters.

The justices, all of them, come from the edges of the country. Two were brought up in California. Four attended Stanford University as undergraduates and two of them continued as law students. Two of the Stanford graduates left for Phoenix, one stayed in California. Four justices are easterners. Two were brought up in New York City, one spent almost his entire life in New Hampshire, and one came from North Carolina. And one justice, as if to prove the point, moved from the West Coast to Boston. Six justices attended Harvard, one as an undergraduate, one for a master’s degree, and five attended law school there. Two justices taught there. Two justices were brought up near the shores of the Great Lakes. One lived his life there until his appointment to the Court. The justices are evenly divided among those who had lengthy careers in private practice, teaching, or government service. Five justices have taught in law school, some at more than one. Two justices have taught at Harvard and two at the University of Chicago, one each at Northwestern, Virginia, Columbia, Rutgers, and McGeorge in California. Three studied in England. There is no heartland on the Court.

William Hubbs Rehnquist is the Chief Justice. He and Justice Stevens are the two members of the Court who were brought up on the shores of Lake Michigan. They were born four years and a hundred miles apart. In every other respect, their careers have diverged.

Rehnquist was born in 1924, making him one of the oldest members of the Court as well as its Chief. He comes from Milwaukee and was brought up in Shorewood, an aptly named affluent suburb on the shore of Lake Michigan, still full of gorgeous mansions, breathtaking lake views and a few Frank Lloyd Wright houses.¹ His father was in business as a paper wholesaler. His mother was a linguist, fluent in several languages. The family were devoted Republicans who encouraged values of self-reliance and hard work in their children.

When the Japanese bombed Pearl Harbor, Rehnquist was seventeen. In response he organized demonstrations and participated in civil defense. Rehnquist spent one year at the elite Kenyon College in Ohio before enlisting in the army. The army sent him to North Africa, detailed to observe and relay weather patterns. North Africa taught him the joys of warm weather. After the war, instead of going back to Kenyon, he finished his studies at Stanford.

Rehnquist tried Harvard for a master’s degree in political science but found that campus far too liberal. So he went back to California to study law at Stanford, where he was much more comfortable. One of his classmates was the future Justice Sandra Day O’Connor. Rehnquist graduated second in his class; O’Connor was next in rank.

His student years show Rehnquist as a fine student who was both restless and independent. Since then he has never been far from controversy.

Rehnquist’s first legal position was as law clerk to Supreme Court Justice Robert H. Jackson. Jackson had been the United States prosecutor at the Nuremberg trials called to bring Nazi war criminals to justice. When Rehnquist arrived in Washington, Brown v. Board of Education,² the school desegregation case, was working its way onto the agenda of the United States Supreme Court. Rehnquist would tell Jackson that segregation should be upheld.

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagues, but I think Plessy v. Ferguson [the 1896 decision upholding segregation so long as it was “equal”] was right and should be reaffirmed.³

Jackson of course voted to overrule Plessy and desegregate the country. Rehnquist could have learned from that experience to respect the deep commitment many Americans have to a vision of social justice. He would later assert that his memo was not his own opinion but merely outlined the arguments for Jackson’s benefit. But Rehnquist would continue to insist that law should be interpreted without regard to whether it was “humanitarian,” that those who wrote the law should not be understood as having meant that the law they wrote should be read to do substantial justice. And in 1964 he opposed passage of an ordinance to bar discrimination in places of public accommodation. In his confirmation hearings, though he would deny it, witnesses would tell the senators that Rehnquist had challenged every black voter he encountered, and threatened blacks to try to prevent them from voting.

Later he told U.S. News and World Report that the Warren Court and the justices’ clerks showed

extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, [and] great sympathy toward any government regulation of business.⁴

It sharpens those comments to realize how great the variance was between Rehnquist’s description and what the clerks he criticized and their bosses thought they were doing. In the criminal area, for example, the Warren Court was quite explicit that it thought it was making sure that convictions were accurate, that the innocent were not railroaded by abusive procedures into convictions for crimes they had not committed, and that the rest of us are not abused by law enforcement gone out of control.

A little history may put both Rehnquist and the clerks he criticized in perspective. When Rehnquist was too small to remember, a variety of prestigious commissions looked at American police practices and found them little different from what we now condemn in the “Third World.” Long before Warren, the Supreme Court had condemned such abusive practices as the “third degree”—the extraction of confessions by force—and trials without minimal protections for the innocent. The Warren Court differed from its predecessors in enforcing constitutional requirements, which by then were uncontroversial, by means of a set of prophylactic rules. Rehnquist would spend a large part of his career working to dismantle those protections.

Both Rehnquist and O’Connor built their careers in Phoenix. Phoenix was home to Barry Goldwater, senator from Arizona, author of Conscience of a Conservative, and living conscience of the conservative movement. Rehnquist campaigned for Goldwater. But Rehnquist stayed out of the mainstream-Republican-dominated large law firms representing major corporate clients that are the typical opportunity of former Supreme Court clerks. Instead he engaged in what lawyers call general practice, a mix of wills and other forms of wealth transfer among members of a family and between generations, plus real estate purchases, property disputes, and other fairly routine events.

Rehnquist returned to Washington as assistant attorney general in charge of the Office of Legal Counsel in President Richard Nixon’s administration. In that position Rehnquist became anathema to liberals. He argued that the president had the power to order wiretaps without a court order; that police could barge into property without warning or knocking; that people could be held in custody without bail because they were thought to be dangerous; and that relevant constitutional guarantees did not bar those practices. Rehnquist also argued that the writ of habeas corpus should be drastically restricted. The writ of habeas corpus is guaranteed by the Constitution to allow courts to insist that officials not be able to hold people in custody in violation of their rights and to help control the abuse of official power. Rehnquist argued that it should not be available after trial, although the Court had confronted serious abuses of constitutional rights at trials that amounted to little more than kangaroo courts. The Supreme Court had concluded that evidence seized in violation of constitutional rights should not be admissible in court. Its purpose was to discourage law enforcement personnel from employing abusive practices in violation of constitutional provisions. Rehnquist argued that the rule against the admission of such evidence should be abolished.⁵

Perhaps most painful for liberal senators was his participation in the planning for the roundup of demonstrators on May Day in 1971. The nation was caught in an agonizing struggle over the war in Vietnam between those whose patriotism demanded support for the war effort and those whose concern for human life, both of our troops and of innocent civilians caught in conflict, demanded an end to the fighting. Demonstrators themselves split into many competing factions. Some demonstrations were dignified and orderly: carrying candles to a vigil in front of St. Patrick’s Cathedral in New York, reading the names of American soldiers killed in Vietnam at demonstrations in front of the White House. Others burned draft cards and ROTC offices, and tried to obstruct munitions factories. Rehnquist argued for surveillance of demonstrators without a warrant or court order. One public demonstration was called for May Day, 1971. Rehnquist worked to suspend reporting rules so that the police could arrest masses of people without documentation. Twelve thousand people were arrested; twelve were convicted. For the others, there was no evidence that they had done anything in violation of the law—demonstrating to show the intensity of one’s convictions in opposition to a policy one considers immoral is not, of course, a crime. Among those rounded up and held were many whose presence on the street had nothing to do with the demonstration. Rehnquist defended the roundups and described the demonstrators as “barbarians.”⁶

In 1972, Nixon challenged the liberal Senate by nominating William H. Rehnquist to be Associate Justice of the Supreme Court, giving it a nominee whose abilities were clear but whose rejection of liberal principles was equally clear. After a hotly fought contest, Rehnquist took his seat in January 1972. President Reagan nominated him for the position of Chief Justice, to replace Chief Justice Warren E. Burger, in 1986.

In the rarified ideological environment of the United States Supreme Court, justices who are not at the extremes of the Court are often described as pragmatic, unpredictable, or weak, as if they were rolled around by giants in the conference room or by attorneys in the courtroom. Sandra Day O’Connor has a strong will and mind of her own, but it has been shaped by a complex of experience that often leaves others puzzled.

Sandra Day O’Connor’s family lived in a remote area of Arizona on the Lazy B Ranch founded by her grandfather Henry Clay Day, named for the great pre–Civil War Whig senator and architect of historic compromises.⁷ The area was so remote that the family had to drive to El Paso, Texas, in 1930 so that Sandra Day could be born in a hospital. The ranch still did not have either running water or electricity. O’Connor later described the ranch as a place “where one learns to work and do things for oneself.”⁸ And she has described the annual cattle roundups as an example of the communal spirit on the frontier where people helped one another.

Though the ranch lacked many of the comforts of modern life, her family was determined that Sandra would be well educated. So she went to El Paso to live with her maternal grandmother, attend an exclusive girls’ school, and then attend and graduate from Austin High School at sixteen. Fulfilling her father’s frustrated ambition, Sandra Day applied only to Stanford. It took her a mere five years to complete both her undergraduate and law degrees there.

After Stanford she tried to get a job among private firms in California. Not one would hire this star graduate of California’s premier law school. At least one major law firm responded to her application by offering her a job as a secretary. Some women, like Justice Ginsburg, a colleague on the Court, would respond to discrimination by becoming a crusader for women’s rights, path breakers in the emergence of a new social and economic order. O’Connor’s response would be relatively conservative, but the experience continued to rankle her nonetheless. For the moment, Sandra Day O’Connor found employment as a deputy county attorney for San Mateo County, California, while her husband John O’Connor completed his studies, also at Stanford Law School.

A year later, in 1953, she followed her husband to Germany, where John O’Connor served in the army and Sandra Day O’Connor worked as civilian attorney for the Quartermaster Market Center. They moved to Phoenix in 1957, where she did some private practice, gave birth to three sons, and then concentrated her energies on bringing up her children. In 1965 she went back to work as assistant attorney general for Arizona, and four years later she began a political career in the Arizona legislature. She was elected to the Maricopa County Superior Court, and then appointed to the Arizona Court of Appeals in 1979.

Like Rehnquist, Sandra Day O’Connor became active in Republican politics. Senator Goldwater and others urged her to run for governor. It was Democratic Governor Bruce Babbitt who appointed her to the Arizona Court of Appeals. When Reagan appointed her to the Court in 1981, there was reason to believe she would be a different kind of conservative from her classmate and colleague Bill Rehnquist.

Historians have noted that life on the frontier often breeds a very conservative outlook. But O’Connor’s background gave her many opportunities to digest competing perspectives, frontier and urban independence, competition and cooperation, ethnic and cosmopolitan values. And she brought to the Court an experience with discrimination more pointed than any of her new colleagues, save, of course, Thurgood Marshall.

Antonin Scalia was born in Trenton, New Jersey, in 1936 but brought up in Queens.⁹ Both his parents were educators—his mother taught in grade school and his father became a professor of Romance languages at Brooklyn College. His was a relatively successful family despite the depression raging when he was born. Perhaps it is merely coincidence that Scalia and Rehnquist, two of the Court’s archconservatives and advocates of a formal, literalist style, each had a parent who was a specialist in language.

Justice Scalia is one of the Court’s most militant textualists. He believes the Court should limit itself to plain language and specific historic examples, omitting historic principles if at all possible. George Kannar has described the influence of Scalia’s father and Catholic upbringing as the major influences on his judicial approach.¹⁰ Part of the influence lay in his father’s professional work. Eugene Scalia spent his career translating the work of a variety of Italian writers but insisted on literalness and doubted the ability of any translation to convey the original meaning. The text was supreme and its meaning was to be found solely in its language, not in efforts to go “behind” the text and study the author’s life and circumstances.

In Kannar’s view this was buttressed by Scalia’s Catholic upbringing. Antonin, or Nino to his friends, studied at a Catholic military school in Manhattan, then graduated, first in his class, from Georgetown, a Jesuit university, before studying at Harvard Law School and graduating magna cum laude in 1960. Kannar describes Scalia’s Catholic upbringing as a constant reference to learned formulae. The result, Kannar asserts, was that Scalia’s Catholic training and his father’s work in literary criticism led in the same direction—toward a severe textualism.

But Catholic education is also Thomist, demanding adherence to higher law when human law is unjust.¹¹ Scalia denied the Thomist heritage of his Catholic education. And as Kannar repeatedly points out, Scalia’s greatest nemesis on the Court, William Brennan, was also brought up in the Catholic tradition, and Scalia’s firmest ally, Chief Justice Rehnquist, was brought up in the Protestant tradition.¹²

Textualists, moreover, come in all stripes. The late Justice Hugo Black was a textualist and a liberal. Perhaps some explanation for Scalia’s views may lie in Scalia’s ethnic and immigrant experience. There is nothing automatic of course in the immigrant experience and some have reacted quite differently. But Scalia never got over the feeling that since his parents were immigrants and not a source of the racial problems plaguing America, he and his family also had no responsibility to play a part in the solution. “My father came to this country as a teenager….Not only had he never profited from the sweat of any black man’s brow, I don’t think he had ever seen a black man.” According to Scalia, various ethnic groups who had been victims of discrimination were being forced to bear the burden of affirmative action by those at “the top of the social heap where one can speak eloquently (and quite safely) of restorative justice.”¹³

Nevertheless, Scalia’s rise into the elite of American society was meteoric. When he left law school he practiced with a major commercial law firm in Cleveland, taught at two very prestigious law schools, the University of Virginia and the University of Chicago, and served in the Nixon and Ford administrations. His professional career was largely consumed by working on deregulation of business. President Ronald Reagan nominated him to the United States Court of Appeals for the District of Columbia Circuit in 1982. Then, in 1986, Chief Justice Burger resigned and President Reagan nominated Rehnquist for the chief justiceship and Antonin Scalia to fill Rehnquist’s old seat on the Supreme Court. Despite this hugely successful career, Scalia brought with him a sense of hurt, a strong sense of method, and a scholar’s knowledge and tools.

Born in 1936, the same ...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface: Why and How This Book
• 1 Origins
• 2 The Gulf
• 3 Eclectic or Unprincipled?
• 4 Three Justices in Search of a Character
• 5 Between Two Worlds
• 6 Consensus on the Left
• 7 Calculus
• 8 Where Utilitarians Diverge
• 9 Coda
• 10 Ideological Canons
• Notes
• Bibliography
• Index
• About the Author