Much has been made of the memo that William Rehnquist wrote as a clerk to Justice Robert Jackson advising him to uphold Plessy v. Ferguson in Brown v. Board of Education. Rehnquist always maintained that he was only writing what his boss wanted to read, but Rehnquist’s detractors saw that as a flimsy excuse.

I don’t have a strong view on that matter, but I thought it would be helpful to read the memo itself to divine an answer. If you want to read it yourself, you can find it here.

Rehnquist opens the most substantive portion of the memo with an argument that looks familiar to constitutional scholars today:

In these cases now before the Court, the Court is, as [John] Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justice’s individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction.

It ends on an interesting note that also displays his matter-of-fact style mixed with a hint of flair that would become a hallmark of his thirty-three year tenure on the Court:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleagyes, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Statios, it just as surely did not enact Myrddahl’s American Dilemna.

After reading the memo, I get the impression that it truly reflected his views. The style is clearly personal and the informal tone makes it seem more likely that Rehnquist was free to write what he truly felt. That said, its hard to glean anything from a two-page memo. Consider this mystery unsolved.


4 Responses to “Vintage SCOTUS: William Rehnquist’s Memo to Justice Jackson Regarding Brown v. Board of Education”

  1. 1 Ralph

    “Mystery” as to Rehnquist’s personal views “unsolved”? He writes at the very end that “I believe Plessy v. Ferguson was right.” What more do you need?

  2. 2 yaron

    The man was a bigt antisamite and bed supreme curt chief. We are better nation with out him!

  3. 3 Alex D.

    Given that he also wrote a memo to Barry Goldwater in 1964 that called the Civil Rights Act unconstitutional and mimicked arguments of Southern apologists for segregation (see Perlstein on Goldwater and Leuchtenberg, the White House Looks South), I don’t think there’s any mystery to his views of the Federal Governments role in fighting segregation and racial discrimination.

  1. 1 Rehnquist: Uphold Plessy - US Message Board - Political Discussion Forum

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Categories

Random Posts

  • Measuring Justice Sotomayor's Liberal Bona Fides: Justice Sotomayor has completed two years on the Supreme Court and, as she begins her third, it seems like an appropriate time to take an in...
  • Uninterrupted Distributions Count for OT10 Cases: Docket pages for each case at the Supreme Court list when a case is distributed for a given conference and, therefore, up for consideration....
  • Updated Term Stats: Term Index Vote Breakdown Vote Breakdown Stats --- You can see from the Term Index that Justice Stevens is the most likely author of...
  • Final Term Index: Here is the final Term Index for October Term 2009. OT09_term_index_final
  • Predicting the April Sitting: I run into the exact same debate every year around mid-January: which cases will be heard during the current term and which will be pushed o...