Permanent State of Emergency: Unchecked Executive Power and the Demise of the Rule of Law by Ryan Alford

Author:Ryan Alford [Alford, Ryan]
Language: eng
Format: azw3, pdf
Publisher: MQUP
Published: 2017-05-31T16:00:00+00:00

The Enduring Significance of Rehnquist’s Nomination

Nixon’s final Supreme Court nomination deserves to be discussed in detail. The selection of William Rehnquist was not merely a tactical victory in the executive’s struggle for immunity from judicial enforcement of the laws, but the development of a new paradigm for placing justices loyal to the executive branch onto the Supreme Court.

Rehnquist, who had served the same role for Nixon as John Yoo would for George W. Bush, would have increasing ideological influence within the judiciary over time; for example,55 Rehnquist was the key proexecutive force on the Supreme Court during the early Guantánamo cases. Furthermore, his successful nomination did not merely provide one additional vote in favour of raising the executive above the laws, but it also provided a road map for future administrations’ attempts to place trusted and compliant jurists onto the nation’s highest court.

Rehnquist’s nomination benefited from being conducted in the shadow of Lewis Powell’s, which had resolved the impasse between the Senate and the executive created by Nixon’s prior refusal to nominate well-qualified candidates to replace Justice Hugo Black. Rehnquist’s resumé also differentiated him from those substandard nominees: it included a master’s degree in government from Harvard University and his position as Stanford Law School’s class valedictorian.56 Upon graduation, he served as (Supreme Court) Justice Henry Jackson’s law clerk, going on to success in private practice before returning to government service within the Department of Justice’s OLC during the Nixon administration.57

While initially his confirmation had seemed assured, Rehnquist’s nomination was stalled by the discovery of memoranda he had written for Justice Jackson, which were part of an archive that had been made public after Jackson’s death. These had been written when the case of Brown v. Board of Education58 was pending before the court. Brown is now remembered as the “case of the century,” in which the Supreme Court finally repudiated racial segregation, holding that separate facilities for African-Americans could never be equal (and overturning Plessey v. Ferguson,59 a case from 1898 that had said that barring blacks from whites-only facilities was constitutional).

Fifteen years after Brown, the record of Rehnquist’s unabashed defence of segregation appeared shocking. He wrote, “I think Plessey v. Ferguson was right and should be reaffirmed. To the argument that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.”60

The explanation that Rehnquist provided to the Senate for this memorandum was bizarre: he said that Jackson had been considering upholding Plessey. As he wanted to be prepared for counterarguments in the justice’s conference after the oral arguments in Brown, Jackson had asked Rehnquist to prepare a list of possible objections.

This story is implausible. Jackson supported desegregation, and the idea that he wanted Rehnquist to ghost-write a set of objections for him in the first person in a memorandum signed by Rehnquist is absurd. A much

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