Why Rehnquist Was Good For Minorities

A few days ago I posted a RIP post in remembrance of Rehnquist and his importance on the Supreme Court. That post than initiated a response from my liberal latino friend Nebur that originally started out in the comments section and eventually spilled over into his blog, here and here, and the comments section there.

The gist of his argument is that Rehnquist was a racist and caused a lot of harm to minorities by, among other things, refusing to endorse Brown vs. Board of education, the Supreme Court case which explicitly outlawed racial segregation of public education facilities. Throughout the back and forth, I did learn some things about Rehnquist that I didn’t know before, and while I still think his judicial philosophy answers several of the objections Nebur makes, I am willing to concede the possibility that Rehnquist, in the end, might have been a ‘man of his time’ (along with several liberals), and was not as supportive of diversity as I originally thought.

But that is not all to the story. Personal views, racist or not, can only go so far. The real question of whether or not Rehnquist was good for minorities lies in his 33-year career on the court. Looking back, did Rehnquist’s rulings help or hurt minorities, that is the central question that must be asked here. Did his rulings, apart from whatever his personal beliefs may have been, hurt or help minorities?

Of course, liberals will never forgive Rehnquist for voting against one of their solutions to poverty (if you can’t fix em, get rid of em), Roe vs. Wade, the Supreme Court case that essentially brought in abortion during all nine months of pregnancy. But Nebur specifically said he wished to avoid mixing that topic into this one, so what Supreme Court case is left? The big tortilla is of course, Brown vs. Board of education. Nebur seems to believe that this case was so important, and Rehnquist refussal to accept it so tragic, that it alone warrents the majority of the criticism he gives to Rehnquist. Nebur writes, “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”.

I find it odd that Nebur would say that since that is pretty close to the circumstances we are in today. Talk to my friends at Compton High School about the ‘benefits of Brown vs. Board of Education’ and they will think you are out of your mind, that you are from a different world. Personally, I don’t lose any sleep over Brown vs. Board of Education, to me, that ruling is only useful to Ivy League professors, it gives them a sense of importance and feeling of connection to ‘them poor minorities’. But to us in the real world, the people that have to live outside of university walls, we see Brown vs. Board of education for what it is; at best, very limited progress (Thomas Sowell, for example, has a great three part series that gets very close to saying that Brown did more harm than good, here, here, and here).

So I don’t worry much about Brown, since more than fifty years later, Brown shows to have made almost no progress in it’s supposed goal. But there is a Supreme Court case I do care about, and Clint Bolick, president and general counsel of the Alliance for School Choice, describes it here:

Regardless of how his other decisions are viewed, it is a cornerstone of a proud judicial legacy that no judge has done more for parental choice than Chief Justice Rehnquist.

Starting with his 5-4 majority in Mueller v. Allen in 1983, a decision that upheld tuition tax credits in Minnesota, Rehnquist crafted a judicial standard that was both in keeping with the original intent of the First Amendment and hospitable to school choice. That commonsense standard held that programs that are neutral toward religion and allow third parties to determine where to direct education funding do not offend the prohibition against establishment of religion.

The Court applied that standard 19 years later n the landmark Zelman v. Simmons-Harris decision, again authored by Rehnquist. That decision upheld the Cleveland school choice program and created tangible hope for the first time for thousands of children trapped in inadequate schools.

With the passing of Chief Justice Rehnquist and the retirement of Justice Sandra Day O’Connor. two of the five justices who formed the Zelman majority are no longer on the Court. We hope that the justices chosen to replace them will honor the cherished constitutional tradition of parental autonomy.

All Americans are in Chief Justice Rehnquist’s debt. We will miss him and will honor his memory by working to expand educational opportunities for children who need them desperately.

So Nebur could have Brown, in fact, throw in Lyndon Johnson’s supposed “War On Poverty”, those were billions and billions of dollars completely wasted, and throw in Bill Clinton’s billions to education, another failed attempt, he can keep all of that. I, on the other hand, am concentrating on the big prize. As history has shown, government is not the solution to minority problems, this is essentially why Brown failed, why LBJ’s “war on poverty” failed, and this is also why Bill Clinton’s large increase in educational funding did very little, to almost nothing, to improve the test scores. No, government is not the solution, government is the problem, and vouchers addresses the problem at its core.

In vouchers, like in the free-market in general, we look forward to a system that will, for the first time in its history, be forced to deal with competitive pressures, no longer able to hide behind the large cape of the government. Much like the post office of old, when it was inefficient, unresponsive, and high in waste, but as soon as it was exposed to private sector competition, it was forced to improve. Now USPS is almost indistinguishable from other competitive mail systems, it is overall consumer-oriented and pretty reliable. Competition did not destroy USPS, it made the public system more efficient, while providing freedom of choice to consumers. I see the same direction with public schools, vouchers will not destroy them, but help them work at their maximum levels.

So in vouchers, we can look forward to a day where people don’t have to have hunger strikes to get a better school opened in their neighborhood. We look forward to a day where good teachers are rewarded, where good teachers looking to find a job don’t have to be shut out of the teaching community by huge, arbitrary, barriers. We look forward to a day where schools in the ghetto can have schools that are closer to what schools in the rich areas are like. In other words, by unhinging the schools from the inefficient, slow, unresponsive, highly politicized, bureaucratic thing we call government, we get a system that works primarily for its customers, the poor kids currently left behind year after year by our current public school system.

So what Rehnquist did, not just by being a deciding vote in a very critical case, but by being the most instrumental justice in that case, was to start a revolution that could help more minorities than Brown, LBJ’s War On Poverty, and Clinton’s failed public school funding couldn’t even dream of achieving. Will vouchers live up to their expectations? We can’t tell for sure, but if the preliminary results are any indication (here, here, here, here, here, here, here, here, here, here here here and here), we can already be sure that the next fifty years after Zelman v. Simmons-Harris, are already going to be very different than the fifty years after Brown, and certainly the fifty years after Lyndon Johnson’s ‘war on poverty’ – legislation that did more harm than good – and certainly better than Bill Clinton’s more money for education.

And because of that, I will continue to mourn the loss of Rehnquist, specifically his absense on future Supreme Court cases.

20 Responses to “Why Rehnquist Was Good For Minorities”

  • Good post’fonso,

    No puedo tener acceso a links, (I think it is my work’s spam blocker), que el dijo? I want to read what he has to say.

    Hey I saw you were down this away over Labor day. Sorry I missed you pero mi hermana estaba in town. Is EMC from Austin?

  • Hey W.NM.,

    Yeah, EMC is from Austin. As for what Nebur said about Rehnquist, a bunch of mean stuff.

    Shoot me an email, I’ll cut and paste pa que veas.

  • HP, you mean Nebur said honest and well-researched stuff about Rehnquist.

  • Yep, just like I said honest and well-researched stuff in response. 😉

  • HP,

    I cannot win with you, not that i am trying. The fundamental gist of my argument is that Rehnquist was a racist who used the law to achieve his racist ends. He did it overtly as a lawyer, and perhaps more covertly as a justice.

    My gist is that whether he was a “man of his time” or not, so were MLK, the freedom riders, the Kennedys, the white NAACP lawyers, and Earl Warren, who as Chief Justice secured an unanimous decision in the Brown case. Unanimous! Rehnquist does not get off the hook for his racism because of the timing of his racist views. He sinned against our country. His legacy should reflect that.

    I disagree with you on vouchers, but that was not the point of my comments. I disagree with you on abortion, but that was not the point of my comments.

    The point of my post was that the Chief was a bad guy. He was a racist. He didn’t consider blacks and jews and indians and people of color as his equals. He did not find them good enough to be his clerks. And I backed up my comments with documents and his own quotes. I did not rely on the National Enquirer or a fringe anti-government nut to back up my claims.

    You liked the guy, and I am talking mess about one of your conservative heroes. I understand why you take offense. I cannot, however, stand silent on his legacy, especially in the midsts of a confirmation battle to name his torch-barer.

  • Nebur,

    Where can I read your sources?

  • Nebur,

    Thanks dude.

  • Nebur,

    I find it odd that you’re for ‘choice’ when it comes to abortion, but against ‘choice’ when it comes to allowing parents to choose what school to send their own kids too, shouldn’t that be reversed? I know, I know, you don’t want to discuss that here, but I’d still like to hear why you are against vouchers. Remember, vouchers are not based on some ‘National Enquirer or a fringe anti-government nut’ to back them up. Milton Friedman, for example, the most respected economist of the 20th century, is a strong supporter of vouchers. In addition to him, we now have, while a very limited form, vouchers implemented in various states, and the preliminary results are quite encouraging, especially if your focus is poor minorities. So when you have time, I’d like to see why you are against vouchers.

    As far as Rehnquist goes, I am getting the feeling that we are speaking past each other: I am primarily defending him as a judge, not his beliefs, or him personally.

    Granted, he made errors, and I granted that Brown was one of them, but, based on his rulings, I think his voucher rulings far surpass any of his previous mistakes, which were all explained above.

    I know Brown weighs heavily in your argument against Rehnquist, but I also think that Brown, based on an originalist (aka strict constitutionalist) judicial philosophy – a philosophy that I support – was, quite frankly, judicial activism. Was it ‘legitimate’ judicial activism? Was it illegitimate judicial activism? I think good honest people can reasonably disagree on these points, so while I happen to think it was legitimate judicial activism, I don’t deny that it was judicial activism.

    So, as I explained ad nauseam in the comments section of your posts, when you evaluate a judge who clearly was against judicial activism in general, in other words, who tended to hold to an originalist (AKA strict constitutionalist) judicial philosophy, you can’t assume they are against the specific outcome of a case simply based on their rulings, they may be against the Supreme Court deciding the case, not against its results.

    And just so were clear, I did not ‘like the guy’. I don’t know the guy to like him, I’ve never went out to lunch with him, drank beers with him, or in anyway communicated with him, I only know him by his rulings, and based on that, I like the guy a whole lot.

    So again, just so were clear, whether he was personally racist or not is, while still a very important side matter, irrelevent to the point at hand. The real question should be, ‘did his rulings hurt minorities’, and based on that question, I think the answer is no, specifically because of his voucher support.


    Did you get my email?

  • Si compadre,

    I read the links he left when I got home.
    Thanks for following through. I’m still reading them, I had to cut and paste to Word so I could print and read.

    Nebur, do you have a link to a better copy of Mapp vs. Ohio? One like the link to Plessy vs. Ferguson or Bob Jones U vs. the US? Bear with me, I am no lawyer, scholar or anything like that. I am studying to be an RN and would rather lance a boil or clean a bedsore than read legal stuff. Thanks again for the links.

  • W.NM.,

    Be sure to also read the Thomas Sowell posts I linked to, he gives a greater overview of the ‘costs’ associated with brown that many people currently don’t take into account.

  • HP,

    Racism is never a never a side matter. It is the lens through which we wee the world.

    As for vouchers, I may write more later. For now, let us just say that i am against the gutting of the public education system.

    I am not against “choice.” I’m cool with your choice of where to send your kids to school, I just don’t want to pay for that choice. I am against funneling public moneys into religious or faith-based organizations. I am against children learning by CD-rom or DVD, as so many home-schooled children do in my community. I am against an educational system where uneducated people “teach”. As a son and grandson of extremely educated public school teachers, I find it offensive to give my tax dollars to pay for uncredentialled individuals to “teach,” often times in a church setting.

    Oh…. and I am against robbing children of the socialization that public education gives them. We learn how to live in our great salad bowl by interacting with those who are different than us. That is less likely to happen in isolated schools outside of the public school system.

    In a time of budget cuts, the public coffers do not need to be diverted to churches.

  • Nebur,

    When you refer to “salad bowl” do you mean people A may “interact” with people B but they must stay “with their own Kind”? Do the ingredients ever blend (not just in flavor but in substance? What of the “Hybrids”? Just curious.

    BTW, I printed some of those links out. Do you know where a link to a better Mapp vs. Ohio is? Do you know of any views counter to the one you hold for comparison? Again, I know nothing on this subject and want to formulate an independant opinion. Thanks

  • Nebur,

    Racism is the lens through which we see the world, and that is important, but ones personal views pale in importance compared to whether they act on those views. Hence my defense of Rehnquist’s judicial rulings, not his personal beliefs, be they racist or not.

    As far as vouchers goes, I know you’re gonna write more later, but allow me to respond to what you wrote.

    First of all, it says something about your priorities when in your whole response, you never address vouchers primary goal, the poor children trapped in failing schools. With all due respect Nebur, it is the poor children trapped in failing schools that are my primary focus.

    If it means the poor getting a better education, I can careless about what happens to any one school. If it means the poor getting a better education, I can careless about what school they get it at, be it a Catholic school, Jewish school, or secular school. If it means the poor getting a better education, I can careless about whose tax dollars paid for it. If it means the poor getting a better education, I can careless how they received that education, be it by ‘CD-rom or DVD’ or from teachers. If it means the poor getting a better education, I can careless about what certification the teacher had, afterall, certifications tell us very little about the quality of the teacher. If it means the poor getting a better education, I can careless about what ‘socialization’ they get.

    In other words, when I evaluate vouchers, it is the poors, who are disproportionately minorities, education that I care most about. All of the things you responded with are completely secondary, to what I worry about. But here, allow me to respond to them anyway, since it seems you may not fully understand how vouchers work….

    You write,

    For now, let us just say that i am against the gutting of the public education system.

    Before I explain this particular point, I want to stress that vouchers will not destroy our public school system. As the United States Postal Service example I gave above demonstrates, vouchers will make the public school system better, not destroy it.

    As far as gutting an individual public school, well there are many different ways one can implement vouchers, and a voucher plan does not necessarily have to ‘gut’ the public school. For example, here in California, there is already ~$11,000/year per student of our tax dollars set aside for the public school of that student. The way vouchers would work is if that student happens to go to a failing school, that school would be put on probation, and only after still not reforming, would vouchers get implemented. They would start off slow, giving the market a chance to meet demand, but eventually every kid in that failing school would be given a voucher that could be used to send that kid to the school of the parents choice. Now heres the thing, not all of the ~$11,000 needs to go to the parent. The state could decide that only $4,000 or $5,000 is necessary, given current market values of private schools. So the remaining $7,000 or so could be used to help the school improve, or it could be used to help other good schools improve. Bottom line, only the schools that are failing are ‘gutted’, but who cares, why would anybody want to put more money into a school that is failing and unreformable anyway?

    You also write,

    I am not against “choice.” I’m cool with your choice of where to send your kids to school, I just don’t want to pay for that choice.

    But here is the rub, you are already paying for it. In other words, vouchers does not require any additional funding, nobodies tax dollars are going to go up. What vouchers does is redirect the already allocated money, that was originally going to go to the public school, and instead, gives it to the parent in the form of a voucher to send the kid to the school of their choosing. So essentially, it is giving parents a choice that they would otherwise have not had before.

    You say that you are not against my choice of where to send my own kid, and presumably, you wouldn’t be against other peoples choices of where to send their own kids, but as soon as vouchers empowers the poor, who again are disproportionately minorities, the power to make the same choice, you are against that? And this from someone who presumably is not against tax dollars being used to pay for the poors abortions? Remember Nebur, the only difference between my choice of where to send my kids and the poors choice of where to send their own kids, is that I can financially afford it. So essentially, you are against vouchers giving the poor the very same right every rich person already has? On something as basic as education?

    To be honest Nebur, I expected more from you. I expect this from limousine liberals who have never tasted poverty. Of course they are going to want to be patient with the public school system, afterall, their kids are in elite private schools. I expect to hear from them, ‘just give the public school one more chance’, or ‘if only one more billion was spent on education’, or ‘if we only tweaked this one problem’, I expect to hear that from them decade after decade, because it is not their kids that are suffering the consequences. I bet that if it was their kids going to Compton High School, going to these ‘socialization institutes’, they would sing a different tune. But to hear it from you, is very bothersome.

    Your response reminds me of Casey Lartigue’s experience volunteering with the Washington Scholarship Fund, he writes:

    there is one woman who needs a cane to get around. She is rather frail, probably in her 70s. Last year she went to a JAIL in DC to recruit families for the scholarship program. I wasn’t there that day, but heard from someone else there that the many ladies waiting to get into the jail to see their men were eager to sign up. I don’t know the exact story behind it, but one inmate “temporarily” got away from officers to make sure his child was signed up for the voucher program.

    He continues with,

    It was stressful talking to these parents, hearing their stories, knowing how desperate they are to get their children out of the situations they are in now. I’m on the WSF board, I volunteer, and every time I leave one of those sessions I feel drained. When I hear people denounce the program, I always like to check from where the person is talking. It is never in the room or at any Washington Scholarship Fund events. That’s because the parents would probably rip them up. It is so much easier to denounce when you aren’t involved or have an ideological or political axe to grind.

    Some of the parents who feel that this is the last chance to get their children into a quality school get really emotional about the program. I was present last year during the publicly funded lottery–a cold process with a lot of lawyers and other witnesses present. Then I was there when some of the parents were notified that they had received scholarships. So many shouts of hallelujah! and praise the lord! were coming through the phone lines. Then there are the sad calls to parents to let them know that they had not received a scholarship. So many are skeptical before, during, and after the process. When they don’t receive a scholarship, it confirms their worst fears. But the ones who win scholarships? Hallelujah!

    Education is THE meal ticket out of poverty, it is the only chance the poor have to move up into the ranks of the middle and upper class, without it, you are dooming them to a life of poverty, a life of financial troubles and a circle of poverty that will keep them in poverty generation after generation, these parents know it, and regardless of their current circumstances, they want to do everything in their power to change that for their kids, for the next generation of their children, and they want to give their children what every parent wishes, a better life than they had, and so when somebody proposes something that has a track record of fixing that, they understandably careless about ‘whose tax dollars pay for it’, or ‘what religious school their kids may go to’, or ‘the socialization of their children’, they primarily care about their childs education, and getting them out of these failed public schools, as they should.

  • The simple fact, HP, is that you believe the hype. I don’t. More money for better public schools equals better education. Period.

  • Than why didn’t the Clinton administration fix our problem? He drastically increased money for education….

    I’ve blogged several times on the weak, to non-existent, link between more money for education and results, just click on the ‘education’ link on the bottom right to see them.

    But in short, this is what you get with more money for education; a picture is worth a thousand words…


  • OK,

    I was out of pocket for a while but wanted to reply to Nebur’s links.

    From what I could read from the actual “briefs” Nebur linked to, his(WHR) arguments were usually that the Constitution did not allow for the courts to interpret but a very narrow scope. Most decision making was to be left to the Legislative branch.

    As for the other posts, (Chimes, the Nathan Newman article and the “Common Dreams New Center” article, etc. appear to be editorial type essays that were either not documented or based on hearsay/chisme/cousins’ neighbors’ friends’ saw. I didn’t care to see the dress up doll and for some reason, a few links were dead. This seemed like a very obscure choice of “documentation”

    so I scanned the web to find a better balance of news articles that addressed the accusations, here is a sample of what I found:



    Fox News:



    Quote: He also held the view that the Warren Court had gone beyond what the framers of the post-Civil War 14th Amendment had intended in guaranteeing “equal protection of the laws” by state governments. Rehnquist felt that, in fact, the amendment was meant to proscribe a narrow range of discriminatory conduct and that only the Supreme Court, not Congress, had the power to say what that conduct would be.

    Michael Ariens:






    Now I tried to find a varied sample, (no Michael Moore, no Michael Savage). None of the above are pinnacles of Conservatism (that I know of) and all had hosannahs and huffaws but of interest is that a few mention that even “liberal” politicians felt he was an effective, efficient and likable Justice.

    Ariens article had a fellow Justice (Douglas) who supported his denial that the memo Nebur refers to did NOT reflect his (WHR) views, but were instead a consolidation (of sorts ) of Justice Jackson, who he clerked for. This was interesting because he was the only one on the court in 1971 who was on the court in 1952.

    Regarding the “Common Dreams” accusation, I believe it is the WaPo article that stated that the charge could not be verified by the FBI. There are more articles on the web, but these seemed to convey the general consensus of the 10 or so I read.

    Now, where does this leave the debate? I do not know enough about the man. While the above sampling is probably too narrow to form a statistically sufficient outcome as to what his true disposition was (at least to my satisfaction), I think it is sufficient enough to debunk your accusations, Nebur. . Your doc’s appear to be too onesided and therefore do not hold up to reasonable critique,( ie: was he racist or was he following a strict constructionist agenda that believed a majority of things should be decided by the legislative branch, thus holding to these principles regardless of how unpopular it may be, perhaps even to a fault). It also seems reasonable to presume that if any of your allegations were true, there would be documentation of it in the above papers, or at least a more thorough discussion..

    Now I couldn’t read the Mapp vs. Ohio and would like to read any links you have to that, it may have something that supports your view. And again, you may have more information to prove your point that I am unaware of, but I only went on what you left me to read. Finally, as I stated earlier, I am not an attorney, legal expert, statistician or anything like that. I am only a student nurse (who has a 10 year old BA in economics) that questions everything.

    OK, enough legal caca, back to studying bacterial infections.

  • Damn W.NM., you don’t mess around!!! Remind me to never disagree with you, you know how to really research!!!

  • Nah,

    Thanks anyways, pero from what I’ve read at HP, no aparece nosotros tiene mucho a discrepar sobre. Unless you tried to say the Lakers were better than my Spurs. That’d be a big ole NUNCA!

    BTW, it was the Time article (not the WaPo) that stated the FBI couldn’t document Nebur’s allegations.

  • Oh no, a Spurs fan!!! Yuck!!!


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