William Rehnquist, Historian

Roundup: Talking About History

From the NYT (March 7, 2004):

Twice members of the Supreme Court have played a decisive role in choosing an American president. In the 2000 Bush-Gore race a vote by five justices, including Chief Justice William H. Rehnquist, halted a recount of Florida's popular vote, giving the presidency to George W. Bush.

The other, lesser-known race was the 1876 contest between Rutherford B. Hayes and Samuel Tilden. An electoral commission of five senators, five congressmen and five Supreme Court justices gave disputed votes to Hayes in Florida and other states, in effect awarding him the presidency.

In his new book,"Centennial Crisis" (Alfred A. Knopf), Chief Justice Rehnquist, who played such a powerful role in the 2000 election, revisits 1876, inevitably evoking parallels between the justices' actions in the two races. Here are excerpts from a conversation about the book between Chief Justice Rehnquist and Dinitia Smith.

The book seems to argue that in times of crisis the Supreme Court should take a strong role in settling political impasses.

I don't think so. Because to me some of the other extrajudicial services the judges have been put in are probably not good for the court. I think you can argue back and forth about [Justice Robert H.] Jackson's role in Nuremberg, I think you can argue back and forth about Earl Warren's role in heading up the Warren Commission, and Owen Roberts's heading up the Roberts Commission right after Pearl Harbor.

I don't think you can say it's desirable that individual justices get into things simply when asked by the president. I don't think it's desirable for the court to wade into something just because it seems to be very controversial. I do think that in this particular instance in 1876, what they probably did was not good for the court, but I think it was good to the country. It probably averted a situation that could have resulted in violence.

It seems that in the 2000 election the court took a markedly more proactive role.

I don't really want to discuss the ins and outs of Bush against Gore.

In the book you mention Bush versus Gore a couple of times in the context of the severe criticism that some people directed at the court, your court, in the 2000 decision. What role did public outrage play in your writing this book?

None. We frequently get strong criticism of our decisions. But we certainly don't change our minds because of public criticism. Otherwise a lot of very important cases would come out the other way.

There is a forthcoming review in The Nation by Eric Foner, a professor at Columbia University.

He's a recognized historian.

One of the things that he says about your book is that it is"an elaborate though indirect apologia" for the court's decision in Bush versus Gore.

I really don't think they have anything to do with each other. But I'm glad to know the book is being reviewed someplace.

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