Tag Archives: Supreme Court

What Did/Would Chief Justice Rehnquist Think of Ted Cruz?

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Ted Cruz, after great success as a Harvard Law School student, became a law clerk to two federal judges.  During 1995-1996, Cruz was a clerk to Judge J. Michael Luttig of the United States Court of Appeals for the Fourth Circuit.  During 1996-1997, Cruz clerked at the U.S. Supreme Court for the Chief Justice, William H. Rehnquist.

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It’s of course Ouija Board stuff to wonder what Chief Justice Rehnquist would think today about Senator Cruz as he runs for president.  Rehnquist died in September 2005, when Cruz was the appointed Solicitor General of Texas.  He argued cases regularly, skillfully before the Rehnquist Court.  But I think that no one then was imagining Ted Cruz as a serious presidential candidate, or at least not the one that he is now in his speeches, debates and issue positions.

As a starting point, what did Chief Justice Rehnquist think about Ted Cruz as a person, in his clerkship year and thereafter?

Some might have direct knowledge, but that has not been shared.

Some indications might exist on paper or other media, but they have not surfaced.

Some who knew Rehnquist well could venture their educated guesses, but I don’t know that any has.

I knew Chief Justice Rehnquist only a little bit.  I interviewed and interacted with the Chief Justice a couple of times in 2003, when he generously met with me to discuss Justice Robert H. Jackson, whom Rehnquist had served as a Supreme Court law clerk during 1952-1953.

My guess is that the Chief Justice Rehnquist I met would not have thought well of the Ted Cruz now running for president.  Rehnquist in 2003 was too many things that Cruz seems not to be.  Rehnquist was mellow, relaxed and not judgmental.  He was reflective, including about himself as a law clerk and later.  He had some strong views, of course, but he laughed at extreme partisanship and made fun people who demonized others.  He was kindly.

I suspect that Ted Cruz knows that his candidate persona today is not the late-life Rehnquist type (and maybe that he was not a beloved Rehnquist law clerk).  The evidence is Cruz’s understanding of the Chief he does not resemble—Rehnquist was, Cruz wrote in his memoir last year (click here for an excerpt on his Rehnquist clerkship), “very much a Midwesterner.  He was polite, low-key and modest.”

Chief Justice Rehnquist loved to make small bets, including on politics.  I bet that Rehnquist wouldn’t hesitate to vote against Ted Cruz in a 2016 Republican primary.  I think that Rehnquist would agonize a bit about Jeb Bush, and then he’d vote for John Kasich.

Rest in Peace, Louis Stokes

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Louis Stokes, age 90, died on Tuesday at his home in Cleveland, Ohio.  As well-deserved obituaries are reporting, he was a World War II veteran, a lawyer, a civil rights champion, an African-American trailblazer, a Member of Congress for thirty years, and a great humanitarian.

To read more about Louis Stokes’s great life, here are links to stories in The Cleveland Plain Dealer (here and here, and also follow the additional links therein, and here is the image of today’s Plain Dealer front page, which is almost entirely a photograph of Rep. Stokes), The Washington Post (here) and The New York Times (here).

I had the good fortune to know Louis Stokes a little bit over the past decade-plus.  We met in 1998, when he participated in a St. John’s law school conference on the 30th anniversary of the Supreme Court’s 1968 landmark decision, Terry v. Ohio, which upheld the constitutionality of, while also applying constitutional limits to, police stops and frisks.

Louis Stokes had been John Terry’s lawyer.  Beginning in late 1963, Stokes, then one of Cleveland’s foremost criminal defense lawyers, represented Terry and another man who were charged with illegally carrying concealed weapons after they were stopped and frisked, resulting in their guns being detected and seized, by a Cleveland police officer.

Stokes ably represented the men at trial and on appeal, including before the Supreme Court of the United States.  To listen to his oral argument in Terry v. Ohio, click here.  To read his 1998 reflections on the case and the Court’s decision, adverse to his client John Terry, click here:  Stokes 72StJohnsLRev727.

Through our contacts, I learned that Louis Stokes was not merely a brave pioneer, a great lawyer and a dedicated public servant.  He also was a generous, engaging, unpretentious and very kind person.

He was, in all respects, a hero.  I’m one of millions mourning his loss and giving thanks for his life and example.

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July 4, 2008:  Louis Stokes speaking at Chautauqua Institution.

Go Read a Watchman

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I’ve now read Go Set a Watchman and recommend it highly.  I don’t know, of course, if Harper Lee really wanted to publish it, or what she thought in the 1950s and 1960s or later or thinks now about it and To Kill a Mockingbird and their overlapping characters.  I do know that Watchman has a strong plot, gripping writing, and really important ideas to consider about race, constitutional law, Brown v. Board of Education, the Supreme Court, etc.  It’s a book for general readers, including Mockingbird lovers – assuming that Miss Lee thinks this is a finished book and wanted it published, she really aimed it at Mockingbird lovers, with concern to assist their growing up.  (And note that she published this more complicated, adult portrait of “Atticus Finch,” a character that obviously is based on her father Amasa Coleman Lee, long after his death in 1962; she published Mockingbird, with its earlier, simpler and (maybe) heroic Atticus, in 1960, while her father was living.)  Watchman is, in addition to literature that I think is great and will last, a book for anyone who is interested in U.S. history.  And, yes, it’s a book for lawyers, law students and law professors.  (Nuggets:  it has a great wisecrack about Eleanor Roosevelt and mentions Alger Hiss and – a first in fiction? – Supreme Court Justice Owen J. Roberts.)  [Hat tip: Brad Snyder, who got to that late page mentioning OJR before I did.]  So very seriously, buy the book and read it.

Remember Palmer v. Thompson

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Last Friday, June 5th, police in McKinney, Texas, a Dallas suburb, were called about some kind of fight or disturbance at a community pool in the Craig Ranch subdivision.  At the scene, the police found teenagers in swimsuits.  At some point, one officer, Cpl. Eric Casebolt, roughly threw a fifteen-year-old girl, who was wearing an unthreatening bikini, to the ground.  He also drew and pointed his gun at two other kids.  They ran away, and luckily no shot was fired.

At least two kids recorded these events on their phones and then made the videos public—click here to view one compilation of the videos.

Corporal Casebolt is white and many of the kids involved are black.  As the videos make plain, one dimension, maybe the defining and driving dimension, of this episode was and is race.

It also is about swimming pools.  As Brit Bennett describes in today’s New York Times (click here), U.S. racism has a long history in the swimming pool context.  Too often, for too many, there has been something ugly, indeed intolerable, about races being together, and with bodies somewhat exposed, near and in shared water.

In highlighting these very real and sadly revealing issues, Ms. Bennett did not mention the U.S. Supreme Court.

Of course the Court did much, especially beginning in the late 1940s and through Brown v. Board of Education (1954) and into the 1960s and later, to interpret and apply the Constitution’s limits on government racism.

But not always.  Not with regard to swimming pools.

In 1962 and earlier, the city of Jackson, Mississippi, had five public parks with swimming pools.  Four of its pools were officially open to whites only, and one pool was open to blacks only.

Black plaintiffs filed a federal lawsuit challenging this racial segregation.  A federal Judge declared that it violated the Fourteenth Amendment’s Equal Protection Clause.  The U.S. Circuit Court affirmed, and the Supreme Court declined to review the case.

In Jackson, the city council acted to end segregation in various public places and facilities:  parks, auditoriums, golf courses and the zoo.  But not the pools.  The city decided to close its pools rather than to operate them on a racially integrated basis.

Black residents of Jackson filed a second federal lawsuit, challenging the constitutionality of these actions.  They lost in the District Court and then in the Court of Appeals (by a vote of 7-6).

In June 1971, the U.S. Supreme Court affirmed that decision.  In Palmer v. Thompson, the Court, by a 5-4 vote, held that the city’s decision to close its pools rather than to integrate them did not violate the Equal Protection Clause.

To read Palmer, click here.

The decision was, underneath the various Justices’ technical discussions of government action and inaction and their statements of personal disapproval of the city’s racism, a striking break from, if not the abandonment of, the Court’s leadership then in explicating our equality Constitution.