[Cross posted here.]
With the passing of Chief Justice Rehnquist we've witnessed no shortage of experts telling us how the chief justice either enhanced or endangered American life. This blawg hasn't been immune from this syndrome. [I cite here, and here.] When commenting on the Rehnquist legacy, the new norm of incivility in politics means being a witness to positive and respectful comments along with retrospectively hypercritical ones. Even his colleagues on the court, sans Souter, shared their thoughts, all positive. The blogosphere offers the simple, to the heartfelt, to the disdainful. Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, has through two opportunities, and more to come, I am sure, taken to disparage Chief Justice Rehnquist.
He appeared on Fox's Hannity and Colmes show where he said:
Well, William Rehnquist was one of the most judicially active judges. He was a judicial activist in the--in every sense of that term. He struck down more federal statutes than almost any other sitting judge. He intervened often in cases where there was an adequate state ground. You know, you hear so much about judicial conservative, judicial activist. He was a judicial activist by any statistical count. By any measure, he was more active than most of the so-called liberal justices. A striking example--No. I think you'd have to call him an activist, whether you are conservative or liberal. That is, he struck down congressionally enacted statutes because he didn't think that they comported with federalism. Take the most striking example. He had written for 30 years that the equal protection clause only applies in racial matters--it doesn't apply to aliens, it doesn't apply to age, it doesn't apply even to women; it only applies to race, that the 14th Amendment was written--the equal protection clause was written to protect blacks. Then comes along Bush v. Gore, and he joins the decision striking down the Florida count on the ground that it denied equal protection for a chad to be counted differently in one district than another--something that totally violated everything he had written for the previous 25 years. He was a Republican justice--He was much more activist. And I think the Rehnquist court was never the Rehnquist court. He moved more toward the center as he became chief justice and as he had Scalia and Thomas on his right flank and of course most of the rest of the court in the center or on his left flank. It--the decisions of Justice Rehnquist are not taught in law schools as great decisions. He'll be remembered primarily for his votes rather than for the content or quality of his decisions. And it's consistent throughout his life. He started his career by being a kind of Republican thug who pushed and shoved to keep African-American and Hispanic voters from voting.
[Since OpinionJournal might remove, or assign a new link to their posting of the Dershowitz transcript, which at the time of this post was available here, I have reposted it on my blawg for your convenience.] I would like to respond first to Professor Dershowitz's comments, and then comment myself on how we should react to such critical comments about someone who has so recently died. Dershowitz's definition of 'judicial activism' is the striking down of federal statutes, a measure not accepted by the academy or profession at large. To Dershowitz's credit, there isn't an agreed upon definition of judicial activism that doesn't reflect one's political persuasion. Those who define activism to mean the striking down of federal statutes are consistently liberal on the legal spectrum whereas legal conservatives define activism as the intervention of the federal courts in traditionally legislative matters. Dershowitz's accusation of Chief Justice Rehnquist as a judicial activist without first defending his definition of activism struggles about on legs incapable of support. Though the professor intends something substantive by judicial activist, as it remains undefended, his definition is a disutility. To the professors credit (again,) he points out a possible inconsistency in the chief's application of the equal protection clause in Bush v. Gore of 2000. The professor then bankrupts his credits with his closing, referring to the chief justice, of course: "He started his career by being a kind of Republican thug who pushed and shoved to keep African-American and Hispanic voters from voting." To be sure, Professor Derhsowitz's criticisms, if true, stand. Perhaps the Chief Justice selectively applied the equal protection clause. A careful, but time-consuming survey of the chief justice's decisions could confirm that accusation. But to follow what might be a plausible conclusion with polemic, especially taking into account protracted criticism from the professor, builds a constellation in which readers cannot help but judge the professor's more reasonable findings against his indelicate tone. Philosophers remind us to not look to the source of the argument (which is the provice of psychology, etc.) to refute it, but look to the argument itself. So, while I appreciate the novelty of the professor's claims, I realize their veracity cannot be judged by how he phrased them or the intensity of his polemic. That doesn't mean, however, that he doesn't lessen his argument's effectiveness because of his tone and the time he's chosen to level his viperous criticisms, after the chief's death. Now, this brings us to the second goal of my post, asking how we should react to such critical comments about someone who has recently died. Just this evening my roommate and I were talking about how for what we take to be unremarkable reasons certain celebrity figures are pedestalled by popular culture. My contribution was that in a society where expectations are low, all one has to do to exceed expectations is show up. I believe we've become impressed by the mediocre. I don't pretend to know why. It's just something I've observed. Here we have an analogously similar situation. In an environment of heated political debate, which so often and so quickly devolves into uncivil discourse [I cite the thread on this topic debated by Brian Leiter, et al.], we cannot be surprised when we see the ante upped. In other words, we should expect it to get worse (before it gets better, if at all). It's another unfortunate complexity of modern culture that public discourse is so bitter. Lambasting a recently passed public figure is merely another symptom of an uncivil public discourse. Of course simply because we should expect it doesn't condone it. My reaction to the professor's comments on Fox and then his post was unsurprised disappointment. While I was unsurprised that someone attempted to disparage a dead man, it was entirely predictable, I thought.
[Comments open.]
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