U.S. Supreme Court

Did Then-Law Clerk Rehnquist Support Separate-But-Equal Ruling? Article Cites Summary of Lost Letter

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A new law review article considers whether William H. Rehnquist was citing his own views in 1952 when he wrote a memo as a Supreme Court law clerk supporting the 1896 decision upholding the separate-but-equal doctrine.

“I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues,” Rehnquist wrote to his boss, Justice Robert H. Jackson, “but I think Plessy v. Ferguson was right and should be reaffirmed.”

During his confirmation hearing, Rehnquist said he had prepared the memo as a statement of Jackson’s tentative views, and they were not his own opinion, the New York Times reports. Now a new law review article (PDF) seeks to debunk Rehnquist’s pre-confirmation claim.

Jackson was part of the unanimous opinion striking down the separate-but-equal doctrine in Brown v. Board of Education, and Rehnquist appeared angry with his boss in the aftermath, according to the authors of the article, Brad Snyder and John Q. Barrett. The cite Rehnquist’s apparent criticisms of his boss in a 1955 letter written to Justice Felix Frankfurter after Jackson’s death.

The letter was stolen with hundreds of Frankfurter papers from the Library of Congress in 1972, but another law clerk, E. Barrett Prettyman Jr., reviewed the letter for Frankfurter, the Times says. His review survived, and it confirms Rehnquist criticized his former boss for having “a tendency to go off half-cocked” and for writing opinions that “don’t seem to go anywhere.”

Snyder and Barrett surmise that Rehnquist’s criticisms reflect his “deep disappointment with Brown and the beginning of the rights-oriented agenda of the Warren Court.”

Last week, the Times interviewed Prettyman, who went on to practice law at Hogan Lovells. He said he believes the Rehnquist letter to Frankfurter was motivated by a rocky relationship with Jackson rather than unhappiness over the Brown decision. But that doesn’t mean the law review article is wrong about Rehnquist’s views, Prettyman said. “There is absolutely no doubt in my mind,” Prettyman said, that Rehnquist’s 1952 memo supporting Plessy summarized Rehnquist’s own views.

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