Speak ill of the dead.
William Rehnquist, Chief Justice of the United States Supreme Court until his death two days ago, was the offensive line of the conservative revolution that has come close to undoing our nation, dividing us into two nations, black and white, and stripping the poor and helpless of any claim on their national government. The only thing he did not achieve was to reduce America's women once again to back alley coat hanger abortionists. But not for lack of trying.
For doubters, I have only two words: New Orleans.
Chief Justice Rehnquist was a judicial activist in the worst sense of the word, repeatedly using an eighteenth century interpretation of the Constitution to undo the legislation of the peoples' representatives -- reversing popularly passed measures for affirmative action, violence against women, and gun control.
He had so little respect for the rule of law that, when he found himself in the minority in GARCIA v. SAMTA, the case that revived the federal government's power, his dissent simply stated that judges just impose their personal views anyway, so he was waiting for someone in the majority to die, so that he could force his position through their conservative replacement.
But when asked to interpret the Constitution actively to help people, Rehnquist magically turned into a pure strict constructionist. As a result of one of his decisions, it is fair to say that if any judge is responsible for the horrifying sight of the helpless, impoverished, dying, overwhelmingly black people in New Orleans, it's Rehnquist. Fifteen years ago, he ruled that governments owe their people nothing. While you listen to the eulogies of the former Chief Justice, who died in his bed and at his desk after eighty productive, healthy years, consider "Poor Joshua" Deshaney, whom William Rehnquist said had no claim against the society Rehnquist ruled.
The Winnebago County authorities first learned that Joshua DeShaney might be a victim of child abuse in January 1982, when his father's second wife complained to the police, at the time of their divorce, that he had previously "hit the boy causing marks and [was] a prime case for child abuse." The Winnebago County Department of Social Services (DSS) interviewed the father, but he denied the accusations, and DSS did not pursue them further. In January 1983, Joshua was admitted to a local hospital with multiple bruises and abrasions. The examining physician suspected child abuse and notified DSS, which immediately obtained an order from a Wisconsin juvenile court placing Joshua in the temporary custody of the hospital. Three days later, the county convened an ad hoc "Child Protection Team" - consisting of a pediatrician, a psychologist, a police detective, the county's lawyer, several DSS case-workers, and various hospital personnel - to consider Joshua's situation. At this meeting, the Team decided that there was insufficient evidence of child abuse to retain Joshua in the custody of the court. . .
Based on the recommendation of the Child Protection Team, the juvenile court dismissed the child protection case and returned Joshua to the custody of his father. A month later, emergency room personnel called the DSS caseworker handling Joshua's case to report that he had once again been treated for suspicious injuries. The caseworker concluded that there was no basis for action. For the next six months, the caseworker made monthly visits to the DeShaney home, during which she observed a number of suspicious injuries on Joshua's head; she also noticed that he had not been enrolled in school, and that the girlfriend had not moved out. The caseworker dutifully recorded these incidents in her files, along with her continuing suspicions that someone in the DeShaney household was physically abusing Joshua, but she did nothing more. In November 1983, the emergency room notified DSS that Joshua had been treated once again for injuries that they believed to be caused by child abuse. On the caseworker's next two visits to the DeShaney home, she was told that Joshua was too ill to see her. Still DSS took no action.
In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded. Randy DeShaney was subsequently tried and convicted of child abuse.
Joshua and his mother brought this action under 42 U.S.C. 1983 in the United States District Court for the Eastern District of Wisconsin against respondents Winnebago County, DSS, and various individual employees of DSS. The complaint alleged that respondents had deprived Joshua of his liberty without due process of law, in violation of his rights under the Fourteenth Amendment, by failing to intervene to protect him against a risk of violence at his father's hands of which they knew or should have known.
Although the liberty protected by the Due Process Clause affords protection against unwarranted government interference . . ., it does not confer an entitlement to such [governmental aid] as may be necessary to realize all the advantages of that freedom."
[Joshua and his mother] contend, however, that even if the Due Process Clause imposes no affirmative obligation on the State to provide the general public with adequate protective services, such a duty may arise out of certain "special relationships" created or assumed by the State with respect to particular individuals. Petitioners argue that such a "special relationship" existed here because the State knew that Joshua faced a special danger of abuse at his father's hands, and specifically proclaimed, by word and by deed, its intention to protect him against that danger. . . Having actually undertaken to protect Joshua from this danger - which petitioners concede the State played no part in creating - the State acquired an affirmative "duty," enforceable through the Due Process Clause, to do so in a reasonably competent fashion. Its failure to discharge that duty, so the argument goes, was an abuse of governmental power that so "shocks the conscience," Rochin v. California, 342 U.S. 165, 172 (1952), as to constitute a substantive due process violation.
We reject this argument.
It doesn't take much imagination does it to envision how the society might have evolved over the last sixteen years, since Rehnquist's decision in DeShaney, if it had gone the other way. But instead we have the sights and sounds of the last seven days. Poor Joshua. Poor America.