Dershowitz on Rehnquist

[JMHACLJ at aol.com]

Roe v. Wade brought me to the law.  The justices dissenting in that  case 
offered, perhaps falsely, the hope that our constitutional ship could be  
salvaged, though with great labor and over time.  Perhaps, in another  generation, 
the decision in Dred Scot drew young idealists to the law.  So,  my early 
impression of Rehnquist was heroic.  With respect to the abortion  decisions 
themselves, he never acted in a way to taint my frank admiration for  his utter 
rejection of the non-constitutional decision-making of Roe and its  unaborted 
progeny.
 
On the other hand, knowing that the role of the Chief in majorities in  
assigning opinions, I was disappointed with his choice of JP Stevens to write  the 
Court's majority opinion in Hill v. Colorado.  Given that he  could have 
assigned the opinion to anyone in the majority, I have always been  perplexed by 
his choice of the justice most openly hostile to the application of  the First 
Amendment in the context of public protests provoked by  Roe.  And if 
Dershowitz wanted to make a candid assessment of  Rehnquist's decisions, which he only 
purports to do with his toss off  line regarding the absence of any decision 
of significant contribution, that  would certainly be appropriate, especially 
later in the symposia that will,  undoubtedly, be convened in commemoration of 
Rehnquist's life and  service.
 
What is indecent, offensive, and ungentlemanly about Dershowitz's rambling  
jeremiad is not any frank and honest laundry list of cases in which Rehnquist  
took positions (remember, at least in the portion of the piece circulated  
here, there was no such list).  No, what went out of the bounds of  propriety was 
Dershowitz's tally of indictments from outside the body of  Rehnquist's 
opinions.  Unanswered, Dershowitz's  mean-spirited, cowardly snipe will reflect 
poorly on the legal profession,  on the professorial profession and on humanity.  
So I will not leave his  loutish behavior unnoted.  Chief Justice Rehnquist 
was not yet  decently buried and Dershowitz began his unloading his unseemly 
version of  history.  
 
Of course, some of his accusations had played out previously, either during  
the first, or the second, of the Chief's confirmation hearings:  I remember  
the particular ire of Ted Kennedy over Rehnquist's attribution of views to  
Justice Jackson when questioned about the Plessy/Brown memo.
 
Perhaps Rehnquist, even in life, would never have taken an action against  
Dershowitz.  If so, that would be the Rehnquist who compelled Jerry Falwell  to 
buck up and take the sniping from Hustler magazine, citing in the opinion to  
the role of caricature in political cartooning.  In any event, Dershowitz  
chose a safe time to accuse Rehnquist of being a closet Nazi, or a closet  moron.
 
I remember, in my youth, watching re-runs of the Bowery Boys.  One  scene 
always sticks in my mind, Leo Gorcey and Huntz Hall were near the back of  a 
florist's delivery truck when a beautiful, large arrangement fell of the back  of 
the truck.  Knowing that it would be wrong to take the arrangement  without 
first giving the truck driver the opportunity to come retrieve his lost  load, 
they stood beside the street and whispered, under the noise of the  
neighborhood and the traffic passing by, "Hey mister, you dropped your  flowers!"  Of 
course the point was to show a nod toward proprieties, mores,  morals, before the 
taking of unfair advantage.
 
Here, when Dershowitz might have said these things to the Chief in life,  
when it bore the risk of an action for defamation, his decision to  shout them as 
the sad processional of the Chief's funerary entourage smacks  more of the 
ugly funeral disruptions by the "God Hates Fags" crowd than of any  well-thought 
explication.  Of course, if, as seems likely from the  product, Dershowitz's 
object was to create controversy and to attract  attention to himself, 
"Mission Accomplished."
 
Jim Henderson
Senior Counsel
ACLJ
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