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The Rehnquist Memo and the art of bullshit


If you haven’t read it, the memo William Rehnquist wrote urging the Court to re-affirm Plessy v. Ferguson is a essential window into the legal and political movement that now dominates the Supreme Court:

The essentially nihilist worldview — racism is not good, per se, but white Southerners are big fans of it and attempts to redress it are futile — expressed in the memo will be very familiar to you if you’re familiar with the work of Sam Alito and Clarence Thomas as well.

Just as instructive as the thoughts themselves is that he twice got confirmed to the Supreme Court, at a time in which extremist candidates could still be voted down, with “Plessy was right” right on his resume. The answer, as Farias says, was that he lied about it, claiming that he was merely summarizing the thoughts of his boss, Justice Robert Jackson. This claim has been about as extensively debunked as it’s possible for a claim to be. But, really, the text itself should have been dispositive evidence that Rehnquist was lying. If senators who voted for him didn’t know it, they didn’t want to know. To believe that Rehnquist was merely summarizing Jackson’s thoughts rather than his own, you have to believe that:

  • A memo summarizing Jackson’s views would be titled “A Random Thought on the Segregation Cases.”
  • That a former Attorney General of the United States who had served on the Court for more than decade would need tendentious summaries of a bunch of stupefyingly obvious landmark cases, all of which would be known to any student who has taken an undergrad con law class and some of which would be known to any student who has taken a decent high school civics course.
  • That Jackson would think his best and most famous civil libertarian opinion was the contemporary equivalent of Dred Scott and Lochner.
  • That the chief U.S. prosecutor of the Nazis at Nuremberg would think that the concept of human rights is a pointless sham.
  • That William Rehnquist was, for the only tine in his lengthy career, ahead of the status quo on a civil rights issue.
  • That a memo allegedly discussing the view of someone else would conclude with language like “I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal?? colleagues, but I think Plessy v. Ferguson was right and should be re‐affirmed.”  

The dedication of Republican elites to pure bullshit substantially precedes Donald Trump, is what I’m saying. And the views expressed in the Rehnquist memo live on in decisions like Shelby County and Parents Involved.

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