Nil nisi bono de mortuiis (Speak only good about the dead)

Recently deceased prescription-drug ex-junky.

(Associated Press)

There's more to this than just bashing a famous Conservative dead jurist. This famous dead guy presided over the U.S. Supreme Court, and before that was an associate justice (a Nixon appointee). In that era, the Court chose to rule on scores of cases involving "drugs" -- a very fuzzy and hazy phrase hereabouts that can be stretched by law enforcement, Congress and state legislatures to include everything from marijuana/cannabis to heroin to LSD to Ecstacy to prescription pharmaceuticals like the synthetic opiate analgesic Oxycontin / Oxycodon.

The most powerful piston in the legal engine that has made the United States of America, a.k.a. The Land of the Free, the Earth's Number One in Prisoners (more of our citizens behind bars than China or Russia) is the War on Drugs, the War Without End, Amen, the War whose Enemies are almost entirely our neighbors and our parents and our children and our sisters and our brothers. We currently have about 2,200,000 children, women and men behind bars in the USA. On Planet Earth, one of every four prisoners is in a USA prison or jail or Kiddie Jail.

A handful of times every year throughout Rehnquist's era on the Court, the Supreme Court chose to decide on a case usually focusing on Rules of Evidence and Questions of Due Process involving "drugs." Parking-lot collisions, mostly, between the War on Drugs and the Constitution's Bill of Rights. The Bill of Rights usually loses; long before the Patriot Act and the War on Terrorism, the War on Drugs had effectively stripped American citizens of most of their Constitutional protections. That's why tens of thousands of American high-school students have to urinate on demand to prove they're not on drugs, even though there's no evidence or suspicion that the particular student, chosen at random, has ever had anything to do with drugs or alcohol.

The latest Drug Panic and Hysteria du Jour grabbing America's headlines involves over-the-counter (off-prescription) cold medications like Sudafed, because these contain a chemical, pseudoephedrine, which can be used as a precursor to manufacture "speed" -- the addictive "up" methamphetamine, which can be "cooked" in a home kitchen as an underground small-scale cottage industry. State legislatures and now the US Senate are racing to demand that purchasers of these cold medications show identification and have their names entered into computer law-enforcement databases to try to identify who's buying "too much," and thus who might fall under suspicion of being a meth cooker. So far, "too much" is defined entirely at the discretion and intuitive suspicions of drug police.

The legal question will shortly arise (if it hasn't already): Does buying six bottles of Sudafed, or two bottles each at three drug stores over six months, justify the issuing of a search warrant of a private residence? The case will involve a search that indeed claims to have found a meth cook operation, and the alleged (and convicted) cooker's lawyer will challenge the grounds for issuing the original warrant.

(Do you have any Sudafed or any of a dozen over-the-counter cold pills with pseudoephedrine in your medicine cabinet? Surprise! You thought you just had a cold or the flu or hay fever. The narcs and prosecutors may decide you're a Drug Kingpin. I must be kidding, I'm making a joke, right?)

If the case had reached the U.S. Supreme Court last year, the Chief Justice would, apparently, have been a former abuser and addict of a powerful prescription sedative and hypnotic called Placidyl. Ordinarily, I would have sympathized with the guy, first for his pain, then for the troubles he had with the drugs he took for the pain, and I would have been happy that eventually he got beyond his apparent addiction to prescription painkillers.

But this particular guy presided over the U.S. Supreme Court as it decided on the Rules that helped America populate the world's largest Gulag. (We won the Gulag Gold Medal in 2000 under Bill Clinton; the War on Drugs is a bi-partisan achievement. The co-sponsors of the new Senate-passed methamphetamine act are the California Democrat Feinstein and the Missouri Republican Talent.)

I received this forward from an official of SSDP -- Students for Sensible Drug Policy. Scores of American colleges and universities have a chapter, including the excellent all-women Smith College down the street from me. Good or Bad, Effective or Inept, Heroic or Misguided, what's clear is that if there's ever to be any Drug Policy or Gulag Reform in America's future, SSDP is the Future of Drug Policy Reform. I am a member of the SSDP Geezer Auxiliary.

~ ~ ~

Slate (Internet magazine)
Friday 9 September 2005

Chief Justice Rehnquist's Drug Habit
The man in full.

By Jack Shafer

As we usher the 16th chief justice of the United States to his celestial reward, let us remember him in full. He labored successfully to return power to the states, treated colleagues with warmth and respect, was said to be a gregarious boss, and, inspired by a judge's costume he saw in the performance of a Gilbert and Sullivan operetta, added four silly gold stripes to each sleeve of his judicial robe.

And for the nine years between 1972 and the end of 1981, William Rehnquist consumed great quantities of the potent sedative-hypnotic Placidyl. So great was Rehnquist's Placidyl habit, dependency, or addiction­depending on how you regard long-term drug use ­that by the last quarter of 1981 he began slurring his speech in public, became tongue-tied while pronouncing long words, and sometimes had trouble finishing his thoughts.

The parade of news stories and TV segments that followed Rehnquist's death made little mention of his affair with Placidyl. New York Times Supreme Court reporter Linda Greenhouse offered more than any reporter, but still just 57 words near the end of a 6,100-word story. The Boston Globe made a two-sentence mention. The Washington Post story about his death ignored this chapter of his life, as did the Los Angeles Times.

(Slate can't brag on this score. David Plotz's 1998 "Assessment" and last week's Rehnquist retrospective-obituaries by Dahlia Lithwick, Walter Dellinger, and Richard W. Garnett avoided the topic.)

Obviously the lede of the chief's obituary should not have read, "William H. Rehnquist, a man with a jones for Placidyl, died yesterday. He also served as chief justice of the United States for 19 years." But the reluctance to explore this part of Rehnquist's life at any length illustrates a general rule of journalism: Most obituarists prefer the airbrush to the sharpened pen when it comes to the famous and powerful. In Rehnquist's case, reporters can't make the "I was on deadline" excuse. The chief justice gave generous advance notice of his impending death for months, and novella-length pieces like the Greenhouse obit were hardly banged out over Labor Day weekend.

Recounting Rehnquist's Placidyl story isn't just a bit of journalistic blood sport at the expense of a dead man. His unorthodox drug consumption first made headlines in 1982, when the Washington Post (owned by the same corporation that owns Slate) broke the story, when he entered the hospital to get off the stuff. The Placidyl episode was also news in 1986, when President Ronald Reagan upgraded Rehnquist from associate justice by nominating him as chief. A confidential report on Rehnquist's medical history prepared for the Senate Judiciary Committee, which contained more details about his habit, was leaked to the press.

The Rehnquist story deserves a third airing today if only to illustrate the ugly double standards that excuse extreme drug use by the powerful, especially if their connection is a prescribing doctor, and condemns to draconian prison terms the guy who purchases his drugs on the street. Reviewing Rehnquist's tale one more time also demonstrates the reluctance of the Senate­and some members of the press­to grade the mental competency of judges and judicial nominees.

The 1986 medical report on Rehnquist described him as seriously "dependent" on Placidyl from 1977 to 1981. He often consumed three month's worth of the drug in one month before requesting more from Dr. Freeman H. Cary, the attending physician to Congress, who prescribed it. Anonymous sources told the Post that Cary first prescribed Placidyl to Rehnquist in 1971 to help him sleep through his severe back pains, but "Cary reportedly told the FBI that Rehnquist had taken it before."

What is Placidyl? Some news clips, such as the Boston Globe obit, call it a painkiller. Yes, it's a painkiller­in the sense that a fistfull of Ambien is a pain killer. You take it and it knocks you out. Placidyl is a "sedative-hypnotic" developed to help insomniacs sleep. See this period advertisement for Placidyl and this one, too. The abuse potential of Placidyl has always been rated as high: An associate professor of psychiatry at Johns Hopkins University told the Post in 1986 that it was "a strong drug I would use only under very exceptional circumstance" and that he wouldn't give it to people for more than one or two weeks. He added that it shouldn't be given to patients who suffered both pain and insomnia.

The standard dose for adults is 500 milligrams, taken at bedtime. Rehnquist initially took 200 milligrams daily but by 1981 was taking 1,500 milligrams a day. Increasing dosage indicates drug dependency, the Johns Hopkins professor explained. For more about Placidyl's potency, see this "product information" from 1971 distributed by the Abbott Laboratories, the manufacturer in the early 1970s, and reprinted in Licit and Illicit Drugs by Edward M. Brecher.

After the Post broke the story about Rehnquist's drug habit, other news organizations reported that his "health problem" had been apparent to Supreme Court observers for three months before he was hospitalized on Dec. 27, 1981, (UPI) and that "reporters and lawyers at the Court" had notice Rehnquist's speaking problem "in recent months" (New York Times).

According to a Jan. 4, 1982, New York Times account, Rehnquist sought help with the drug in December 1981 because it no longer relieved his pain. He entered George Washington University Hospital on Dec. 27. According to the physician spokesman for the hospital he suffered "disturbances in mental clarity, characterized by distorted perceptions," as doctors weaned him off the drug. The spokesman added that after his Placidyl was cut off, Rehnquist began ''hearing things and seeing things that other people did not hear and see.'' The doctors took his dose back up before re-weaning him. By mid-January, Rehnquist returned to the bench.

When Rehnquist's drug problem became an issue during the 1986 confirmation hearings, Sen. Orrin G. Hatch, R-Utah, defended Rehnquist in a Post story, saying he got into trouble with Placidyl because he was "a very compliant patient" who "followed the advice" of his doctors. Ah, yes, one of the most brilliant jurists of his time was the victim of his rotten doctors for almost a decade! Are we to believe that one of the court's sharpest minds never availed himself of a Physicians' Desk Reference for independent medical information, or in any way tried to educate himself about the drug he was taking in larger and larger quantities? The Senate Judiciary Committee asked Rehnquist no questions about his drug use, and he was, of course, confirmed as chief justice. The debate over whether Rehnquist's drug use might be relevant to his fitness to serve as chief never got started.

The Rehnquist narrative presented here owes much to legal scholar David J. Garrow's "Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment," a 50,000-word article in the fall 2000 issue of the University of Chicago Law Review. Garrow believes a constitutional amendment should be passed forcing judges to retire at 75, and he inquires about the mental competency of a number of Supreme Court justices, including Rehnquist and Thurgood Marshall. Most court observers now concede that Marshall had lost much of his hearing and half his bag of marbles by his final years of service on the court. Garrow blames the Supreme Court press corps for not aggressively covering either such mental slippage or Rehnquist's "publicly visible struggle with deleterious overmedication."

One fascinating aspect of Rehnquist's drug habit is that nobody has ever demonstrated that his performance ever flagged during his decade-long binge. USA Today Supreme Court correspondent Joan Biskupic didn't cover the court during Rehnquist's drug days, but in examining the papers of justices Brennan, Powell, Marshall, and Blackmun, she says, "There's no sign that [Rehnquist] wasn't keeping up with his work" over the period he was taking Placidyl.

Tony Mauro, who covers the court for American Lawyer Media's Legal Times, says Rehnquist's speech problem manifested itself just as he joined the beat. "I do remember him speaking oddly," he says, but he didn't give it much thought. "In retrospect, I should have. A lot of us [reporters] felt that way."

A defense can be made for not including the Placidyl saga in Rehnquist's obituaries. As the Washington Post Supreme Court correspondent Charles Lane points out, his story was not intended to be "a complete biography." Lane has written about Rehnquist's drug use in the context of his thyroid cancer.

But am I unfair to link the reluctance of journalists to zoom in for a close-up on a dead person's warts to a general deference to authority or, in the case of Rehnquist, a class bias that predisposes them to look past his drug habit as purely a medical problem? I think not. This was a watershed event in Rehnquist's life. Did the experience­being dazed on drugs, humiliated in the press, getting off Placidyl­contribute to his jurisprudence? How could it not have? Supreme Court correspondents, start your word processors.

* * * * * * *

Before you send e-mail, don't even think of accusing me of being a Rehnquist hata: If you were to Venn-diagram my judicial philosophy (such as it is) against that of Rehnquist's and Justice Ruth Ginsburg's, I'd overlap with Rehnquist. That e-mail is slate.pressbox@gmail.com

Jack Shafer is Slate's editor at large.