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Scholars cast more doubt on controversial Rehnquist memo

New Boston College Law Review article adds fuel to argument that the former Chief Justice lied to gain Supreme Court nominations

Written in 1952, dredged up in 1971 and again in 1986, and now resurrected again in 2012—the specter of the memo former Chief Justice William Rehnquist wrote for Justice Robert Jackson about segregation cases has haunted Rehnquist for 60 years. And now, a pair of scholars has penned an article revisiting the letter, and cast further doubt on whether or not Rehnquist lied about his intent to gain nomination to the high court and again for chief justice.

Rehnquist wrote his memo at the time the high court was considering the landmark Brown v. Board of Education case. Given the question of whether to overrule the 1896 Plessy v. Ferguson decision affirming the constitutionality of state laws requiring racial segregation in public facilities and the “separate but equal” doctrine, Rehnquist wrote the following controversial line:

“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.”

When this was brought to light by Newsweek in 1971 prior to the Senate debate over Rehnquist’s nomination, it caused a furor that was repeated again in 1986 when President Regan nominated him for chief justice. Rehnquist’s defense both times was that the opinions he espoused in the memo were not his own, and they were prepared by him for Justice Jackson, for whom he was a clerk, to tentatively use as his own. Despite his explanation, critics have long had their doubts about Rehnquist’s true feelings, and castigate him for lying solely in order to advance himself.

To this end, the argument for those still harboring doubts has been bolstered by an article in the Boston College Law Review, in which authors Brad Snyder and John Barrett recently reconstructed and analyzed another of Rehnquist’s letters to Justice Felix Frankfurter from 1955 in which he criticized Justice Jackson.

The story surrounding Rehnquist’s letter to Justice Frankfurter has its own long and sordid tale involving its theft in 1972 from the Library of Congress (it was never recovered), but a response to Justice Frankfurter about a letter from a law clerk who succeeded Rehnquist has allowed Snyder and Barrett to reconstruct some of what Rehnquist had written.

The Boston College Law Review article asserts that Rehnquist’s disappointment over Brown led to Rehnquist’s criticism of Justice Jackson, and that had Rehnquist’s letter to Justice Frankfurter come to light in 1971 or 1986, it “would have been a bombshell.”

“We conclude that Rehnquist’s letter to Frankfurter primarily reflects Rehnquist’s disappointment with Brown and the Warren Court,” Snyder and Barrett wrote. “We base our argument on the following factors: (1) Rehnquist wrote admiring letters to Jackson in July 1953 and just prior to Brown in April 1954, letters that indicate that  Rehnquist enjoyed his clerkship and agreed with most of Jackson’s opinions and judicial philosophy; (2) Rehnquist apparently never wrote to Jackson after Brown; (3) Rehnquist’s letter is consistent with his harsh public comments about Brown and the Warren Court throughout the late 1950s; and (4) Rehnquist, in the mid- to late 1960s, reiterated his admiration for Jackson. In our view, Rehnquist’s disappointment with Brown provides the most plausible motivation for his harsh 1955 letter about Jackson.”

For more about Rehnquist’s letter to Frankfurter, read the New York Times.

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