Dershowitz on Rehnquist

Sanford Levinson SLevinson at
Sat Sep 10 10:17:05 PDT 2005

I am curious about one sentence in the now notorious obituary:  "Yet no
opinion comes to mind which will be 
remembered as brilliant, innovative, or memorable."  This is obviously
wrong with regard to "innovative" or "memorable."  Surely the opinion in
National League of Cities is "innovative" by any reasonable criteria,
and, for better and for worse, some of Rehnquist's opinions are surely
"memorable," such as his disgraceful comment in Garrett about
discrimination against the handicapped being thoroughly "rational" and
therefore untouchable by Congress under Section 5.  But what opinion
would any of his admirers on this list offer as an example of
"brilliance"?  Perhaps, like Dan Farber, you think that "billiance" is
overrated.  But if you don't, then I'd be genuinely interested in which
of his opinions are supposed to manifest that quality.  One candidate, I
suppose, is his dissent in Grutter, which does indeed demolish much of
O'Connor's argument with regard to "critical mass" and the like. One
problem, though, presumably for any of the justices, is whether it is
Rehnquist who gets the A+ or, rather, his clerk.  

Indeed, to be frank, I'm not sure I can think of any opinions offhand in
recent years, by any of the justices, that strike me as "brilliant."  So
I suppose that those of us who are skeptical of Rehnquist's "billiance"
might address whether anyone else on the Court does any better. 

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