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On Behalf of | May 23, 2018 | Firm News

In a time when some judges deny implicit racial bias in our criminal justice system, it may be wise to consider the full racial views of judges.

For instance, in 1952, a young Supreme Court clerk wrote a memorandum entitled “A random thought on segregation cases” that stated:

The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was whether to overrule Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional.

I realize 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 reaffirmed.  Memorandum  from  William  H.  Rehnquist  to  Justice  Robert  H.  Jackson,  A  Random  Thought  on  the  Segregation  Cases  1,  circa  December  1952,  Robert  Houghwout  Jackson  Papers,  Library  of  Congress,  Manuscript  Division  [hereinafter  Jackson  Papers],  Box  184,  Folder 5

The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk’s initials — “WHR,” for William H. Rehnquist.  The memo was disclosed by Newsweek in Supreme Court: Memo from Rehnquist, Newsweek, Dec. 13, 1971, at 32, 32.  The article was released on December 5, after Rehnquist had testified before the Senate Judiciary Committee, after a majority of the committee had voted favorably on his nomination, but immediately before the floor debates began Rehnquist’s nomination to the Supreme Court.

On December 8, 1971, Rehnquist wrote a letter to Senate Judiciary Committee chairman James 0. Eastland (D-Miss.) explaining that the memo “was prepared by me at Justice Jackson’s request; it was intended as a rough draft of a statement of his views at the conference of the Justices, rather than as a statement of my views.” 117 CONG. REC.45,440 (1971).

Many, if not most, commentators say Rehnquist was not being truthful in his statement that the memo represented a belief by Justice Jackson rather than William H. Rehnquist.  MICHAEL KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 304-09 (2004); WILLIAM M. WIECEK, 12 HISTORY OF THE SUPREME COURT OF THE UNITED STATES: THE BIRTH OF THE MODERN CONSTITUTION: THE UNITED STATES SUPREME COURT, 1941-1953, at 420, 689, 691, 696-703 (2006); RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN v. BOARD OF EDUCATION AND BLACK AMERICA’S STRUGGLE FOR EQUALITY 607-09 n. * (1976); Brad Snyder & John Q. Barrett, Rehnquist’s Missing Letter: A Former Law Clerk’s 1955 Thoughts on Justice Jackson and Brown, 53 B.C.L. Rev.631 (2012); Gregory S. Chemack, The Clash of Two Worlds: Justice Robert H. Jackson, Institutional Pragmatism, and Brown, 72 TEMP. L. REV. 51, 54 n. 21 (1999); Laura K. Ray, A Law Clerk and His Justice: What William Rehnquist Did Not Learn from Robert Jackson, 29 IND. L. REV. 535, 553-59 (1996);Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson and the Brown Case, 1988 SUP. CT. REV. 245, 245-47.

Later clerks such as E. Barrett Prettyman Jr. in 1955 referred to the Rehnquist antics as “foolishness.”  In an interview, Mr. Prettyman said “there is absolutely no doubt in my mind” that the 1952 memo represented Mr. Rehnquist’s views and not those of Justice Jackson.  “The fact that a justice and a chief justice lied in order to advance himself,” Mr. Prettyman said, referring to Chief Justice Rehnquist in his confirmation hearings, “the fact that he thought the way he did about Brown — which was that it would be a national disgrace — those facts alone justify an exploration of what happened.”

In the end, is it really the right to confirm conservative judges who will endorse Brown not because of racial bias in our criminal system, but because of the desire of a judge, like Rehnquist Bork and Thomas, to get confirmed?