Academic journal article Boston College Law Review

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown

Academic journal article Boston College Law Review

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown

Article excerpt

INTRODUCTION

"I think that Plessy v. Ferguson was right and should be reaffirmed."1 This was the stark conclusion of what has become the most notorious Supreme Court law clerk memorandum ever written. William H. Rehnquist wrote this pro-Plessy memorandum to his boss, Justice Robert H. Jackson, during the December 1952 oral arguments in the school segregation cases. Rehnquist's memorandum argued that overturning Plessy s separate but equal doctrine would repeat the Lochnerera mistake of justices reading personal preferences into the Constitution.

Justice Jackson did not follow the memorandum's advice. In May 1954, nearly a year after Rehnquist had completed his clerkship, Jackson joined the Brown v. Board of Education decision that invalidated racially segregated schools.2 Five months later, Jackson died of a heart attack. Brown turned out to be the last significant decision of his judicial career.

In 1971, President Nixon nominated Rehnquist, then Assistant Attorney General heading the Office of Legal Counsel (OLC), to serve on die Supreme Court. On the eve of the Senate floor debate on Rehnquist's nomination, Neiusweek magazine revealed the existence of his pro-Plessy memorandum.3

Rehnquist, who as head of OLC had worked on Clement Haynsworth's and G. Harrold Carswell's failed Supreme Court nominations,4 knew that perceived opposition to Brown could sink his own nomination.5 Nor did he want the Judiciary Committee to use the memorandum as an excuse to reopen its hearings.

With his confirmation hanging in the balance, Rehnquist wrote a letter to Senate Judiciary Committee Chairman James O. Easdand, a Mississippi Democrat:

As best I can reconstruct the circumstances after nineteen years, the memorandum 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 ....

....

... I am satisfied that the memorandum was not designed to be a statement of my views on these cases. Justice Jackson not only would not have welcomed such a submission in this form, but he would have quite emphatically rejected it and, I believe, admonished the clerk who had submitted it. I am fortified in this conclusion because the bald, simplistic conclusion that "Plessy v. Ferguson was right and should be re-affirmed" is not an accurate statement of my own views at the time.

I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use at conference. The informal nature of the memorandum and its lack of any introductory language make me think that it was prepared very shortly after one of our oral discussions of the subject. It is absolutely inconceivable to me that I would have prepared such a document without previous oral discussion with him and specific instructions to do so.6

Rehnquist also wrote in his letter to Eastland, "In view of some of the recent Senate floor debate, I wish to state unequivocally that I fully support the legal reasoning and the rightness from the standpoint of fundamental fairness of the Brown decision."7

This letter saved Rehnquist's confirmation and survived further scrutiny when he repeated it under oath during his 1986 confirmation hearings to be chief justice. But Jackson's former secretar)'8 and law clerks9 believed that Rehnquist had falsely impugned Jackson, one of the Court's most revered justices, as pro-Plessy. Rehnquist's explanation has provoked much journalistic and scholarly debate about whether he lied.10

This Essay analyzes a newly discovered document that reveals what Rehnquist thought about Jackson shortly after Brown and the Justice's death. In 1955, Rehnquist wrote Justice Felix Frankfurter a letter criticizing Jackson's "tendency to go off half-cocked."11 He also wrote that Jackson's judicial opinions "don't seem to go anywhere," and he questioned Jackson's impact on die Court. …

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