The Partisan: The Life of William Rehnquist.

AuthorSchmidt, Christopher W.
PositionBook review

THE PARTISAN: THE LIFE OF WILLIAM REHNQUIST. By John A. Jenkins. (1) New York, N.Y.: Public Affairs. 2012. Pp. xxi + 330. $28.99 (cloth).

  1. INTRODUCTION

    The Partisan, a new biography of Chief Justice William H. Rehnquist by John A. Jenkins, is a bad book. But it is a bad book that is worth engaging because it provides important information about its unquestionably important subject. (3) It is also worth engaging because its shortcomings, while pronounced, even egregious, in fact derive from challenges inherent in the enterprise of Supreme Court biography.

    I pursue three goals in this review. First, I identify what is useful in The Partisan-, information, some new, some helpful elaborations of what was already known, which helps us better understand Chief Justice Rehnquist, the private man and the public jurist. Second, I examine what Jenkins is trying to do in this book and where he runs into problems. The most obvious flaw of this biography is its relentless tendentiousness. The author clearly dislikes Rehnquist, and he uses the biography as a vehicle for an extended, largely unpersuasive, ad hominem attack on his subject. But Jenkins' goal is not merely to criticize Rehnquist the jurist. It is to "unmask" (p. xix) Rehnquist, to conflate his personality and his judicial views and thereby reveal the core of the man. Jenkins, predictably, finds what he was looking for: a harsh, uncaring, and deeply conservative ideologue. But in the process he presents a version of Rehnquist that not only fails to align with certain known facts about the man, but also lacks the complex humanity of a fully drawn biographical subject. Finally, I argue that the problems that this particular book puts in high relief are in fact symptomatic of the genre of Supreme Court biography. My critique thus provides a platform to consider the unique obstacles faced by any biographer of a Supreme Court Justice.

  2. WHAT WE LEARN ABOUT REHNQUIST

    1. REHNQUIST AND THE CHALLENGE OF BIOGRAPHY

      The life of any public figure might be divided into three categories. There is the public life. For a Supreme Court Justice this would include written opinions, public statements, information about relations with other Justices, and the like. There is the private life. This would include biographical information about the Justice's upbringing and education, relations with family and friends, activities and interests beyond the Court. And then there is the personal. This would include some difficult-to-define combination of personality, character, and self-identity. For the biographer, it is the reconstruction of this last, interior layer, what Judge Richard Posner has labeled the "essential self," (4) that pulls together, and gives meaning to, the various strands of the subject's life.

      The measure of a great biography is its ability to present a compelling portrait of the subject, one in which public, private, and personal align into a singular, comprehensible identity--but one that is not so reduced that it loses the complexities and texture of the human being at the center of the study. The explanatory force of a biography lies in its ability to allow each of the three realms of the subject's life to bring insight to the others. This is where the unique value of a biographical approach to law is located: The biographer reshapes our understanding of the subject's public life in light of those elements of the subject's life that are less well known.

      These considerations highlight why Rehnquist is a particularly difficult subject for the biographer. He insistently, even belligerently, resisted introspection. Rehnquist was a prolific author throughout his time on the Court, writing about a wide variety of topics, including the Court's history (5) and the challenges of judging and constitutional interpretation. (6) At one point he even drafted a novel about a judge and his clerk that clearly drew on his own experiences. But he recoiled at the idea of writing directly about himself. To write an "interesting" memoir, he explained in 2001, "you have to say that 'this is a good person,' 'that's a bad person,' 'that's a medium person,' 'he really let me down here.' And I just don't want to do that." (7) Rehnquist simply did not like talking about himself, friends explained. (8) His autobiographical opening to his book on the Supreme Court is self-conscious and stilted. (9) He rarely gave interviews, and when he did he generally avoided saying anything particularly interesting about either himself or his approach to judging. Judge Posner once described the "general challenge of judicial biography" as figuring out how to "write empathetically and arrestingly about dullish people who are not introspective." (10) Whether or not this is a fair assessment of the judicial profession, Chief Justice Rehnquist did little to undermine Judge Posner's observation.

      So perhaps it is not surprising that Jenkins found relatively little in his research on Rehnquist to reveal any sort of inner, personal world. This was a man who simply did not seem interested in exploring this terrain. Or if he did, he was not about to reveal his findings anywhere that a biographer might find them. The journals Rehnquist kept as a college and law student were filled with irreverent commentary about his studies, humorous sketches, and prosaic details of his travels, but not much revealing information beyond this (pp. 17,23). When, later in life, he added occasional entries to these journals, they consisted mostly of quotations from history books and biographies he was reading (pp. 79-80). Those insights we get into the personal side of Rehnquist in The Partisan are largely from the outside, and usually from a distance.

      Jenkins is similarly unsuccessful at shedding new light on Rehnquist's public side. As I discuss in more detail below, (11) when it comes to legal issues Jenkins is an unreliable, under-informed, and thoroughly biased guide. There is little of value in his scattershot and cursory engagement with Rehnquist's legal thought and doctrinal contributions.

      What contributions there are in The Partisan, then, consist largely of Jenkins' exploration into two areas of Rehnquist's life story that fall within the aforementioned category of the "private." Jenkins offers much information about Rehnquist's work and political activities prior to becoming a Justice. (12) Here we find a smart, curious, and often irreverent young man dedicated from his early years to a confident, doctrinaire, libertarian-inflected conservatism. It was this combative conservatism that would attract the attention of the Nixon Administration, setting in motion his appointment to the Supreme Court in 1972. The other area of Rehnquist's life for which Jenkins provides new insight is his extracurricular activities during his time on the bench. Although a notably constant man in many ways, there was a restless quality to Rehnquist's mind, one that expressed itself in his constant search for new challenges and diversions. As a justice he cultivated a variety of outside interests, never allowing the work of the Court to dominate his life.

    2. THE PRE-COURT YEARS

      1. Upbringing and Education

        Jenkins, like others before him, identifies the roots of Rehnquist's conservative political and legal commitments in his family and the community in which he was raised. (13) Born in 1924, Rehnquist grew up in Shorewood, Wisconsin, a suburb of Milwaukee on the shores of Lake Michigan. His political leanings formed early. He was raised in an anti-New Deal Republican family in a community that was, even at the height of the New Deal, staunchly Republican. (14) The town was all-white, its inhabitants accepting of a casual, seemingly unchallenged racial insensitivity (during his time as a student, Rehnquist's high school held a Harlem-themed prom) (p. 3).

        The subsequent steps in his life reflected the characteristics that were coming to define Rehnquist: he was bright and confident as a student; he was impatient; he could be irreverent; and he was politically conservative. Rehnquist received a scholarship to Kenyon College in Ohio. After a semester at Kenyon, he enlisted in the Army. Toward the end of the war, he shipped out to North Africa, where he served as a weather observer for the Army Air Corps. After his return to the United States in early 1946, Rehnquist attended Stanford University, supported by the G.I. Bill and various part-time jobs (p. 13). He graduated in just two years with both bachelor's and master's degrees in political science. After a brief, disappointing stint as a graduate student in the Government Department at Harvard, he abandoned his thoughts of becoming an academic and returned to Stanford for law school. Jenkins brings together scattered evidence of the sharpening conservative commitments of the young Rehnquist: while serving in North Africa, Rehnquist was impressed by Friedrich von Hayek's Road to Serfdom, the recently published free-market manifesto (p. 14); (15) his Stanford master's thesis articulated a narrow, libertarian-styled vision of individual rights (p. 22); (16) his disillusionment with Harvard stemmed at least partly from his professors' liberal leanings (pp. 24-25). During his time at Stanford Law School, he was, according to one profile, "widely regarded as both outlandishly conservative and outlandishly bright." (17) At Stanford, Rehnquist was editor-in-chief of the Law Review and graduated a semester early (p. 26).

      2. Supreme Court Clerkship

        While we have only scattered writings and recollections to reconstruct Rehnquist's nascent political and legal attitudes up to this point, the paper trail becomes far more revealing during the next stage of Rehnquist's life, when he clerked for U.S. Supreme Court Justice Robert H. Jackson. Rehnquist's memorandums for Justice Jackson, which came to public attention during his confirmation hearings to the Supreme Court in 1971, (18) have been thoroughly...

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