Dershowitz on Rehnquist

Paul Finkelman paul-finkelman at
Sun Sep 11 08:04:13 PDT 2005

My understand, and recollection from the hearings when he became CJ is 
that the restriction was in his deed and that he said it he did not want 
to go to the expense of having a new deed drawn up, since the provision 
was unenforceable.  This was a plausible argument from a narrow economic 
position, why spend a few hundred bucks on a new deed; but as a Supreme 
Court Justice we could perhaps assume  1) he could afford it; 2) he 
could do it himself or have a clerk do all the paper work; 3) probably 
any attorney in town (especailly an acitve Republican) would have done 
it pro bono for a Justice.  The issue is that he did not see anything 
improper about it and had no sense of hte propriety of  it. Just like 
leading people in singing Dixie or another time, when he appeared in an 
Indian headress  saying he was the "Chief" of the Supreme Court.  This 
kind of behavior, cumulative over time, sends a terrible message to all 
Americans; if in fact he also told racist jokes and goosestepped in 
college, then again, its tells us somethnig about the nab,  His record 
on civil rights, on the rights of prisoners, on the rights of people on 
death row, all fit with the notion that he was a justice who had little 
concern about the poorest, least fortunate, minorities and others who 
have traditionally been on the margins of society.  Other conservatives 
on the Court -- both Harlan, Stewart Burger, Blackmun,  Powell, Warren 
(who was a moderate republican in his career and conservative on many 
issues) -- were far more sensitive to the need to be a justice for all 
the people.  It is hard to imagine any of them openly singing Dixie 
after it beame the theme song of massive resistance.

Paul Finkelman

Scarberry, Mark wrote:

>In response to Paul:
>I don't think the complaint was that Justice Rehnquist took title to real
>property by way of a deed that itself had a racially restrictive covenant in
>it. I think the complaint is that he took title to property as to which
>there was a recorded racially restrictive covenant in the chain of title. 
>We recently purchased a house for rental/investment purposes in a majority
>black area of Los Angeles. (Our daughter, who is teaching in a largely black
>middle school, and several of her friends will live in the house.) There was
>a racially restrictive covenant in the chain of title even though the
>sellers were an African American couple who had lived in the house for
>thirty or forty years. 
>The title report indicated that, as a matter of federal law, the title
>company would not disclose the existence of racially restrictive covenants
>in the title report. The title report also indicated -- without providing
>any detail -- that there were rather old conditions, covenants, and
>restrictions on the property. We discovered the racially restrictive
>covenant when we asked for a copy of the document that created the CC&Rs,
>something that it seems few buyers do, at least in California, with respect
>to such old CC&Rs. The developer who had subdivided a large parcel into
>residential lots 80 or so years ago had provided, with respect to all of the
>parcels, for minimum setback lines for houses and other mundane matters. The
>developer also had included a prohibition on non-Caucasians residing on the
>property. It was apparent from the document that the entire large parcel,
>covering the whole majority African American neighborhood, was covered by
>the racially restrictive covenant. And this is an area of Los Angeles that
>has had a majority of black residents for many, many years.
>Mark S. Scarberry
>Pepperdine Univ. School of Law
>-----Original Message-----
>From: Paul Finkelman
>To: JFN
>Cc: CONLAWPROF at; RJLipkin at
>Sent: 9/10/2005 8:47 PM
>Subject: Re: Dershowitz on Rehnquist
>I have been told that in recent years the late Chief Justice used to
>lead people in singing Dixie at circuit meetings; this may not be
>objectively racist, but given that Dixie was the "fight song" (so to
>speak) of opponents of integration, is does suggest a lack of
>sensitivity towards miniorities.   Is is something we would not expect
>from a man who was sworn to interpret the law for all Americans.
>One might argue, again as a matter of sense of propriety, that a Chief
>Justice would afford to have a new deed written with a restrictive
>covenant removed.  
>Neither of these are "sins" or "crimes."  Both illustrate why many
>Americans did not see him as a Chief Justice for all of us, but only for
>some of us.
>Paul Finkelman

Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

paul-finkelman at

More information about the Conlawprof mailing list