Commentary: From Law Clerk to Chief Justice, He Has Slighted Rights

Rehnquist's 1952 memo sheds light on today's court
Cass R. Sunstein
Los Angeles Times
May 17, 2004

When the Supreme Court decided Brown vs. Board of Education on this day in 1954, it overruled Plessy vs. Ferguson, one of the most infamous decisions in the history of the court.

In that case, which dated back to 1896, the court ruled that the Constitution allowed the prosecution of a 30-year-old African American shoemaker named Homer Plessy for refusing to sit in the "colored" car on the train.

The Plessy decision enshrined the idea of "separate but equal" for more than half a century. Justice Henry Brown's opinion for the majority concluded that although the 14th Amendment was clearly meant to "enforce the absolute equality of the two races before the law," it couldn't possibly have been meant to abolish "distinctions based upon physical differences," or to enforce "social equality," or to require "a commingling of the two races upon terms unsatisfactory to either."

Brown vs. Board of Education changed all that, with all nine justices agreeing that enforced separation was, in fact, "inherently unequal." In the years that followed, the court, led by Chief Justice Earl Warren, struck down segregation everywhere. It insisted on compulsory desegregation -- requiring busing, if necessary, to do so. It struck down poll taxes and called for a rule of one person, one vote, knowing this would help equalize the political power of African Americans.

But since then, things have radically changed again. Under the leadership of Chief Justice William H. Rehnquist, the court has abandoned the minority-protecting role assumed by the Warren court. What happened?

A clue comes from a provocative and uncannily prescient memorandum written by a young law clerk for Justice Robert H. Jackson in 1952, during early deliberations that led to the Brown decision, well before Jackson had made up his mind about segregation. The memo was called "A Random Thought on the Segregation Cases." It was initialed at the bottom, "whr," signaling that it had been written by none other than William H. Rehnquist, still less than 30 years old and two decades away from being appointed to the court.

Rehnquist's memo unambiguously stated that "Plessy vs. Ferguson was right and should be reaffirmed." It acknowledged that this "is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues." But in its key passage, it insisted that "one hundred and fifty years of attempts on the part of this court to protect minority rights of any kind -- whether those of business, slaveholders, or Jehovah's Witnesses -- have all met the same fate. One by one the cases establishing such rights have been sloughed off, and crept silently to rest. If the present court is unable to profit by this example, it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men."

Rehnquist went on: "To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

Rehnquist's memo concluded that the court should uphold segregation and refuse to protect "special claims" merely "because its members individually are 'liberals' and dislike segregation."

There is no doubt that Rehnquist wrote this memo. But was he speaking for himself?

Testifying before the Senate in 1971, the year he was nominated to the court, Rehnquist said the memo "was prepared by me at Justice Jackson's request; it was intended as a rough draft of a statement of his views ... rather than as a statement of my views."

Many historians, however, have concluded that Rehnquist's memory was inaccurate and that his memo contained his own thoughts, not a record of Jackson's. Consider the words, "it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues." This sounds like Rehnquist, not Jackson -- a conclusion strengthened by a 1957 Rehnquist essay complaining of "the 'liberal' point of view which commanded the sympathy of a majority of the clerks I knew."

Either way, Rehnquist's memo captures much of the thinking of the court today.

Rehnquist has argued long and hard against efforts to extend Brown or to use the Constitution to protect politically weak groups -- African Americans, women, handicapped people, gays and lesbians. Often he has objected to "attempts on the part of this court to protect minority rights."

Half a century after Brown, those concerned with racial equality now find that they do best when they resort to political, rather than judicial, channels. Of course Brown remains the law; segregation is unconstitutional. But the 1952 memo has turned out to be a self-fulfilling prophecy: Under Rehnquist's leadership, the role assumed by the Warren court, and signaled above all by Brown, did indeed "fade in time."

Cass R. Sunstein teaches law at the University of Chicago and is the author of The Second Bill of Rights, to be published in July by Basic Books.

Copyright 2004 The Times Mirror Company; Los Angeles Times