I find it ironic that you first start off your response defending the ‘rights of the minority’, the ‘rights of those who had no say in the legal justice system’ against those who wish to ‘impose their will on the minority’. It was so well written, so well thought out, that I was right there smiling at everything you say.

Than, you get to abortion and write, “However, Roe placed the choice directly in the hands of women. There’s no greater example of self-government than a woman’s right to govern her own body”. The irony comes in the fact that you argue against the very thing you argued for in the above paragraphs. How would someone saying, “However, Dred Scott placed the choice directly in the hands of citizens. There’s no greater example of self-government than a citizens’s right to govern their own property” be any different than yours? In other words, in both cases you are a priori assuming that the persons in question, blacks and unborn children, are not persons, and than reasoning from there. You are, in effect, arguing in favor of the ‘majority trampling on the rights of the minority’, of ‘imposing ones will on another’, and all of the stuff you argued against above. But back to our point…

As you probably have already guessed, I am strongly pro-life. There are few things in my political make up that I believe in as strongly as my pro-life views, yet I would still prefer a states right Supreme Court verdict with regard to abortion as opposed to a federalized ‘living constituion’ federal ban on abortion (although I would support a constitutional ammendment that bans abortion, precisely because it is still done democratically). Why? Precisely because I believe that moral issues, whether one agrees with the specific moral issue or not, are better settled through democratic means, than through forced federalism. So just because someone believes in states rights on an issue, does not necessarily mean that one is against that specific issue.

So for you to prove that Rehnquist was a biggot, the onus is on you to show that he was conveniently a states right person. In other words, that he voted for states rights on certain issues (say with segregation issues) and not on other issues. But that is something you cannot do, since Rehnquist was consistently pro-states rights, not just with segregation, but with all(or even just most) issues of his time, most notably Roe vs. Wade (He ruled against it, and in doing so, voted in favor of states deciding for themselves).

So since he was consistently states rights, one should judge him based on that principle, not on individual cases, and on that principle I tend to agree with him, while disagreeing with him on the particular instance of segragation.

First of all, as a lawyer, I know that any principle, constitutional or otherwise, can be bastardized to achieve any purpose. Example: It sounds real nice and democratic to promote federalism and say that the people (and not a centralized power) should “decide their own fates,” until we stop and think that a great many of those people are simply trying to breath, their necks gasping under the oppressive boot of the the dominant class. Federalism is a crock of manure. Bigotry is wrong; institutionalized bigotry is unconscionable. The showdown in Little Rock was proof that the South would not have changed its ways had the Supreme Court not stepped in.

Second, Brown v. Board did not fail us, rather government and lawyers sabotaged the implementation of Brown. And coincidentally, Mr. Chief Justice Rehnquist was a chief player in the anti-Brown efforts. As a lawyer, he fought to keep blacks and hispanics from voting. He fought to keep the federal government from enforcing Brown. He fought to keep his home (with a racially-exclusive covenant) free from those pesky blacks and hispanics and jews.

Third of all, you argue that the Supreme court’s decision on the abortion issue “took away the citizen’s right to decide the issue for themselves.” Logical fallacy, my good friend. Logical fallacy. You argument, unless I am mistaken, runs as follows: People should be able to decide issues for themselves, ergo, when the Supreme Court took away the right of the State’s to decide the issue, it somehow took away the people’s choice. However, Roe placed the choice directly in the hands of women. There’s no greater example of self-government than a woman’s right to govern her own body.

Rehnquist was a biggot. So was Robert Byrd. Unlike Byrd, W.R. never disavowed himself of his racist past. For my eulogy to the Chief Justice, I paraphrase a line from Fiddler on the Roof. The irony is not lost on me, given that W.R. was also a raving anti-semite:

“May God bless and keep Rehnquist…… Far away from me!”

There is something to be said in support of federalism as a general principle. There is something to be said in allowing society as a whole to settle their contentious issues, through democratic means, instead of having it forced down their throats by some centralized power. Liberals understand this clearly with their arguments against a constitutional ban on gay marriage, but they seem to lose sight of it on other issues. Just look at, for example, what federalizing abortion has done to that topic, a lot of the reason abortion is such a divisive issue today is because the Supreme Court took away the citizens right to decide the issue for themselves.

In addition to allowing citizens decide their own fates for themselves, it must also be remembered that federal legislation itself is very very limited in its results. Just look at Brown vs. Board of education, many people thought, at the time, that its ruling was the panacea, yet the results fifty plus years later clearly show that Brown vs Board of education did little, if anything at all, to help the situation (Sowell has a great three part series on the aftermath of Brown 50 years later, here, here, and here).

So while I do agree that Rehnquist was wrong on this particular point, I don’t see it as quite the failure you do.

This being said, I believe that our country is worse off because of his tenure. He was an avowed segregationist and, like so many of his great white fathers, veiled his views in constitutional phrases like federalism and reserved powers.

No one who argued the constitutionality of Plessey v. Fergusson (in the 1950’s lo less) should ever have become a supreme court justice. If it were up to him, i would have been educated in a run-down schoolhouse with no books and a whole lot of dark faces.