Peter Irons is anathema to Chief Justice Rehnquist, for Irons is the person who discovered the audiotapes [b:May it Please the Court|556611|May It Please the Court Live Recordings and Transcripts of the Supreme Court in Session With Cassette |Peter H. Irons|http://photo.goodreads.com/books/1223662901s/556611.jpg|543803] made during Supreme Court pleadings, edited them and released them to the public. They make fascinating listening. It is just amazing to hear Thurgood Marshall responding to questions put to him by the justices in Brown v. Board of Education. Probably no two justices had less in common judicially than William Brennan and William Rehnquist. The duels between them are explained and set in context by Peter Irons in his study of several hundred cases. In only two did Rehnquist and Brennan agree.

All of the cases but seven related to conflict between government and the individual. Brennan voted against the government in each; Rehnquist always voted for the state. Irons summarizes the philosophy of each justice. Brennan constantly referred to the dignity of the individual; Rehnquist rarely did, instead applying the term “deference'” when discussing the relationship of the individual to the majority represented by the state. Brennan’s training as a Catholic and his exposure to the “social gospel” of the church explain his devotion to “justice and fair play and simple human dignity.” He linked the Declaration of Independence to “God-given inalienable rights” that stemmed from the truth of Christian faith. Freedom from the “absolute state” was the message he learned from his religious training. The Due Process clause of the fifth amendment as applied by the fourteenth was designed to limit governmental authority and to protect “life, liberty, and property.” The American Revolution represented a rejection of the prevailing assumptions of colonial social hierarchy, which provided governmental officials a great deal of arbitrary authority unchecked by law. Brennan also believed the role of the court and the Constitution was to protect minorities. The Borkian position that all substantive matters could be solved by a majoritarian process was not valid, argued Brennan. The principle of majority could not “rectify claims of minority right that arise as a response to the outcomes of that very majoritarian process.” He decried the “facile historicism” of conservatives, especially Attorney General Meese, who insisted that the meaning of “due process” was frozen in 1787. That position “establishes a presumption of resolving textual ambiguities against the claim of constitutional right,” and “turn[s:] a blind eye to social progress [and displays:] antipathy to claims of the minority to rights against the majority.” Rehnquist consistently applied a standard that was unabashedly majoritarian. The individual was subservient to the majority, and civil disobedience in support of any moral position was wrong. He had argued since his law school days that no moral position can be supported rationally. “Neither idealism of purpose nor self-proclaimed moral superiority on the part of the minority qualifies in the slightest way its obligation to obey the law,” he said.

An analysis of votes in more than 1200 votes and 164 signed opinions reveals that his votes were guided by the following three principles: the individual loses in a conflict with the state; conflicts between state and federal government were always resolved in favor of the state level; and lower level courts should always have jurisdiction when in conflict with federal courts. The role of the government is to enforce the will of the majority, by force if necessary. It’s ironic that Rehnquist, labeled a conservative, would promote the interests of the state while Brennan, the liberal, consistently sided with the rights of the individual against the state monolith. But that’s the problem with labels.
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