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.