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The Rehnquist Legacy IIA: Jackson and The Brown Memo


Susie at Suburban Guerilla notes this Alan Dershowitz post about William Rehnquist, which (among other things, some of which are better substantiated than others) discusses the infamous memo Rehnquist wrote when he was clerking for Justice Robert Jackson, in which he claimed that Plessy v. Ferguson “was right and should be upheld.” Kathryn Jean Lopez responds by attacking Dershowitz’s tact without identifying anything he says that’s wrong. With respect to the memo, I suspect the conservative defense will mirror the one Rehnquist tried under oath: that the memo reflectedJackson’s beliefs, not Rehnquist’s. This defense, however, is almost certainly false. As I’ve mentioned before, Richard Kluger systematically demolished Rehnquist’s claim in his fine book Simple Justice. For those of you unfamiliar with the arguments, allow me to summarize the evidence that Rehnquist was lying:

  • The form and content of the memo. It seems most unlikely that a formal memo outlining a justice’s position would be titled “A Random Thought On the Segregation Cases.” It is even less likely that Robert Jackson, a high-level New Dealer who had served on the Court for more than a decade, would require a crude, shallow summary of the problems with the Court’s Lochner-era jurisprudence. And as I will explain in more detail in my subsequent post, the jurisprudence outlined in the memo is remarkably consonant with Rehnquist’s philosophy on the bench.
  • The contradiction with Jackson’s beliefs. The most obvious problem with the apologist argument is the simple fact that Jackson (of course) joined the unanimous opinion in Brown. But it gets even more problematic. Rehnquist and his apologists ask us to believe that the justice who authored a landmark opinion defending the right of
    Jehovah’s Witnesses to refuse to salute the flag (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us”) and dissented memorably in Korematsu (“The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need”) believed that the judicial protection of minority rights is futile. They ask us to believe that the legal beliefs of the chief American prosecutor at the Nuremberg Trials can be summarized as “the majority shall determine what the rights of the minority are.” To call these assumptions “implausible”
    seems too generous.
  • The consistency with Rehnquist’s beliefs. And, of course, the biggest problem with the Rehnquist defense is the extraordinary unlikelihood that Rehnquist thought that
    Plessy should be overturned in 1952. Consider his record. Rehnquist had a consistent record of opposing every civil rights initiative—federal, state, or local, judicial or legislative—that he discussed publicly. This included persuading the Republican Party’s 1964 presidential candidate to oppose the 1964 Civil Rights Act. He worked as a vote-suppressing lawyer (all of which, in my judgment, is more important than the memo itself.) On the Court, he never supported readings of the equal protection clause that would broaden judicial protection of minority rights (with the exception of “Republican voters in Florida.”) And yet Rehnquist and his defenders ask us to believe that, at a time when many of the country’s prominent liberal law professors were tortured about overturning Plessy, that Rehnquist was for the first and only time in his life ahead of the
    curve on a civil rights issue when it came to Brown v. Board. To state the obvious, this strains credulity far beyond the breaking point.

The importance of this memo is open to debate; as I implied earlier and will argue in more detail later, I think that it’s reasonable to argue that in and of itself its significance is exaggerated. But as to the question of whether the memo reflected Rehnquist’s views, about that there’s no serious debate. The memo clearly reflected Rehnquist’s views at the time, and anyone who argues otherwise is a hack slandering the reputation of Robert Jackson.

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