"In the long run it is the majority who will determine what the constitutional rights of the minority are. 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 legal foundation for mandatory racial segregation was right and should be re-affirmed." .- William Rehnquist
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The New York Times, January 10, 1999 January 10, 1999, Sunday, Late Edition - Final
HEADLINE: In America; The Real Disgrace BYLINE: By BOB HERBERT
So there were the two of them, the one with the sparse and unruly tufts of orange hair and the other with the silly yellow stripes on the sleeves of his black robes, presuming to speak for the nation about justice and the rule of law.
Someone should have dragged them off the public stage decades ago. Dragged them off in disgrace. But there they were on Thursday, front and center once again.
"Do you solemnly swear," said the 96-year-old Strom Thurmond, "that in all things pertaining to the trial of William Jefferson Clinton, now pending, that you will do impartial justice according to the Constitution and laws, so help you God?"
I felt like reaching for the Pepto-Bismol as this old-line segregationist, now a U.S. Senator, administered a solemn oath to a fellow veteran of the campaigns to keep the heavy boot of segregation firmly planted on the throats of black people.
"I do," said William H. Rehnquist, now the Chief Justice of the United States.
To get an idea where Thurmond's bigoted head has been, consider that he not only opposed the Civil Rights Act of 1964 and filibustered against it, he openly worried that it would lead to a time when "a woman of one race is required to give a massage to a woman of another race against her wishes."
As for Rehnquist, he had some lovely restrictions on property he owned. The deed to a summer home he purchased in Vermont in 1974 contained a covenant that prohibited the sale or rental of the property to "any member of the Hebrew race." And the deed to his home in Phoenix, Ariz., in the 1960's barred the sale or rental to "any person not of the white or Caucasian race."
David Savage, in his book "Turning Right: The Making of the Rehnquist Supreme Court," notes that Rehnquist, at his confirmation hearings in 1986, told the Senate Judiciary Committee he hadn't examined his deeds and knew nothing of the covenants.
How's that for a great legal mind?
The essence of Rehnquist's early approach to matters racial was spelled out most recently by Jeffrey Rosen in The New Yorker. In the early 50's, as Brown v. Board of Education was coming before the Supreme Court, Rehnquist was a law clerk for Justice Robert Jackson. In that capacity he prepared a memo that he called "A Random Thought on the Segregation Cases."
His random thought was that the boot of segregation should not be lifted from the throats of American blacks. As Rosen says in his article, "Rehnquist wrote that the Court should not be moved by moral or social concerns."
In the memo, the future Chief Justice said, "In the long run it is the majority who will determine what the constitutional rights of the minority are. 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 legal foundation for mandatory racial segregation was right and should be re-affirmed."
Years later, when his confirmation as Chief Justice was on the line, Rehnquist, in a cowardly move, would tell senators that the memo represented Jackson's -- not Rehnquist's -- views.
This canard was demolished in "Simple Justice," Richard Kluger's great history of the Brown v. Board of Education case, published in 1976. That did not prevent Rehnquist from apparently lying through his teeth to save his judicial skin in 1986.
Jeffrey Rosen notes that Rehnquist, while being questioned by Senator Edward Kennedy and others, insisted under oath that the memo represented Jackson's views.
Kennedy asked, "Do the I's refer to you, Mr. Rehnquist?"
"No, I do not think they do," Rehnquist replied.
There are many ugly racial stories having to do with Thurmond and Rehnquist. Thurmond ran for President as a segregationist on the Dixiecrat ticket because he thought civil rights had already gone too far in 1948. Rehnquist was accused of intimidating black voters in Arizona in the 1960's. The two of them were enemies of black Americans and forgiveness in this corner comes slowly. Bill Clinton has disgraced the office of the Presidency, but to see the likes of Thurmond and Rehnquist sitting in moral judgment of anyone turns my stomach.