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The Rehnquist Legacy IIB: How the Memo Matters


Since it’s back in the news again, it may be worth exploring what the pro-Plessy memo written by William Rehnquist actually means.

As I briefly alluded to in my previous post, I think that one can make a very good case that, in and of itself, the significance given to the memo by Brad DeLong and Matt Yglesias has been overstated. Most importantly, it’s worth noting that the opinion that Plessy should be upheld was the mainstream conservative position at the time; it would be shocking had Rehnquist not supported Plessy. In addition, because two important strains of constitutional interpretation-precedent and originalism-strongly compelled (as of 1952) the claim that Plessy should remain good law, many liberal law professors–not to mention personally liberal Supreme Court Justices like Frankfurter and Jackson–were tortured by the idea of overturning it. I do not mean to suggest that it should not have been clear at the time that Plessy was wrong; I think it clearly was, and since I’m not an “originalist” I don’t have to go through embarrassing and implausible contortions to justify the result. As the great legal theorist Charles Black said, the appropriate response to the claim that Jim Crow was consistent with the equal protection of the laws was laughter, “the sovereign prerogative of the philosopher.” My point is simply that in historical context Rehnquist’s memo wasn’t particularly shocking, and had he repudiated his position I don’t think it would be that big a deal. To put the shoe on the other foot, Mark Levin’s atrocious recent book about the Court tries to make a big deal out of the fact that the great progressive justice Hugo Black had briefly been a member of the Klan in the 1920s (something that we all, I think, can agree was worse than believing that even the most odious 50-year old legal precedent should be upheld.) Does this repudiate Black’s steadfast support of civil rights on the Court? Of course not. It’s a blot on his record, a negative piece of information that one should use when evaluating his record, and that’s it. I would say the same about the Rehnquist memo, and it’s less important than what Black did.

Does this mean, then, that we shouldn’t really bother discussing the memo? No. There is, in fact, a great deal of useful information contained in the content of his memo and its aftermath that can be used to evaluate Rehnquist’s record:

Rehnquist Lied Under Oath.
Rehnquist doesn’t deserve the same pass that I give Black, because Rehnquist twice lied to Congress about the memo, and even worse in doing so smeared the reputation of the justice he worked for. Black, at his nomination hearings, didn’t deny his Klan membership; he said that he had joined simply because it was politically necessary to get elected in Alabama, and he repudiated the organization and affirmed his commitment to civil rights and civil liberties. Had Rehnquist just admitted that the memo reflected his views at the time-which it obviously did-but that he (like many others) had come to see that he was wrong, then I don’t think that the memo would be a particularly big deal. He chose a much more dishonorable course, and that should certainly be a major stain on his historical record.

Rehnquist on Federalism.
As iocaste correctly points out, there’s a lot of valuable information about Rehnquist in the content of the memo, beginning with his claim that the court should limit itself to policing boundaries among branches and levels of government, not individual rights claims. (Indeed, this is the strongest evidence against Rehnquist’s subsequent disavowals of the memo; it’s remarkable how little his judicial philosophy changed since he was a clerk.) I’ll come back to the federalism issue in a subsequent post, but for now I’ll add one thing: his claim that the court’s power has been most effectively preserved when it sticks to separation-of-powers and federalism cases could not be more wrong. The two largest crises of legitimacy faced by the court up to that time-Dred Scott and the constitutionality of the New Deal-arose because of attempts by the Court to limit the powers of Congress.

Rehnquist on Civil Rights.
Rehnquist’s consistency wasn’t, of course, limited to federalism. Another crucial difference with Black is that while the latter was an extremely strong supporter of civil rights on the court, Rehnquist had a consistently bad record on civil rights. He opposed civil rights legislation at all levels of government and irrespective of the institution involved, and on the court always (with the appalling exception of Bush v. Gore) advocated a narrow interpretation of the equal protection clause. The one twist is his late-in-life softening on gender equality. After being extremely hostile to equal protection claims raised by advocates of women’s rights, Rehnquist infuriated Scalia by concurring in the landmark opinion US v. Viginia, which ended gender segregation at the Virginia Military Institute (albeit while advocating a more narrow position than the majority.) He also, surprisingly, wrote the opinion upholding the Family Medical Leave Act. I’m not sure what explains the shift. Perhaps he was influenced by the sad, painful death of his wife, or maybe it was the influence of Sandra Day O’Connor, who graduated 3rd from the law school class in which Rehnquist graduated first, but was offered only secretarial jobs.

Rehnquist’s Brand of Conservatism.
The last interesting thing about the memo is that it’s very revealing about his particular version of conservatism. “Nihilist” would be too strong, but maybe “indifference to claims about justice” with some Tory fatalism thrown in captures it; he is quite different than a Thomas or Scalia in this respect. His argument that “in the long run, it is the majority who will determine what the rights of the minority will be” reflects his conservatism, which was not rooted so much in a reverence for traditions as his belief that it was futile to try to change long-held social beliefs. While he was an apologist for segregation, his arguments didn’t take the form of defending the Southern Way of Life or some such; rather, they reflected an indifference to civil rights claims combined with the conviction that there was nothing one could do about Jim Crow until those states were good and ready to change. This is also reflected in his abortion jurisprudence; he dissented in Roe, of course, but he also refused to join Sclia’s comparisons of Roe to Dred Scott and the latter’s obvious substantive sympathy with anti-abortion principles. Rehnquist is as indifferent to claims about fetal rights as he is to claims about women’s rights or the right to privacy. He cared about federalism, but no issues of substantive justice interested him much. Again, it’s remarkable how little that changed over the years.

So it’s not that the memo doesn’t matter, but it perhaps matters in different ways than it’s assumed to.

(Cross-posted to Majikthise.)

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