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It’s a Bill Rehnquist world


The Stevens papers contain some new (if redundant) evidence that Rehnquist always thought that Plessy v. Ferguson was correct:

It was impossible to listen to oral arguments this past Supreme Court term without being struck by the way this court’s conservative supermajority views the 14th Amendment. According to these justices, the key Reconstruction-era amendment was intended merely to promote a theory of “color blindness”—in which race is simply ignored—not to actively lift Black people from a previously subjugated status following the end of slavery. Indeed, the newest justice, Ketanji Brown Jackson, made headlines at one of her first oral arguments after she took pains to debunk this historically dubious theory.

In that voting rights case, Allen v. Milligan, the first Black woman to hold a seat on the Supreme Court explained that the drafters of the amendment intended that its vision be applied “in a race-conscious way” so that freed former slaves “were actually brought equal to everyone else in the society.” She went on to urge, “That’s not a race-neutral or race-blind idea.”

Unfortunately, Jackson will likely be raising these points again—this time in dissent—as the Supreme Court is poised to end the term by using the “color-blind” formulation to gut affirmative action in higher education, weaken or decimate a key part of the Voting Rights Act, and erode long-standing tribal protections for Native American families and their children. When the court does so, it will be another belated victory for William H. Rehnquist.

The late chief justice, who long sought to turn the 14th Amendment on its head, notoriously drafted a 1952 memo as a Supreme Court clerk that defended racial segregation in the South and the disastrous Plessy v. Ferguson decision on which the institution’s legality was based. Although Rehnquist denied during his confirmation hearings that the memo reflected his own views—saying they were meant to reflect those of Robert H. Jackson, the justice he was clerking for in 1952—a newly released court document, not previously reported, lays bare Rehnquist’s abhorrent true position on segregation as late as 1993.

That year, the then chief justice was still defending the logic of Plessy in no uncertain terms and using his position as a justice to block the court from acknowledging that the 14th Amendment barred segregation. “The Fourteenth Amendment prohibits discrimination; it does not require integration, and I think it is a mistake to intimate that it does even as a ‘goal,’ ” Rehnquist wrote in a memo to Justice Sandra Day O’Connor as part of an effort to have her remove a passage from an election decision. (For good measure, Rehnquist also requested that O’Connor remove a suggestion that the Civil War was fought in part to secure voting rights for Black people.)

Of course, the evidence about Rehnquist was always clear from his own writings, however many senators pretended not to believe it or secretly improved:

At his hearings, Rehnquist would later insist: “I believe that the memorandum was prepared by me as a statement of Justice Jackson’s tentative views for his own use.” (Similarly, Rehnquist would dismiss his activities as a poll watcher in the 1960s challenging Black and Hispanic voters in Phoenix.)

My “favorite” part of Renhquist’s story that he was merely speaking in the voice of Robert Jackson is that he specifically cites West Verignia v. Barnette alongside Dred Scott and Lochner was one of the worst decisions in Supreme Court history. “I, Robert Jackson, have not only always admired Plessy v. Ferguson, but despised the Supreme Court protecting the rights of religious dissenters. I also opposed the prosecution of Nazis. Sincerely, Robert Jackson.”

Without bad faith, the American conservative legal movement would spontaneously combust.

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