During his 1971 Supreme Court confirmation process — and again in 1986, when he was elevated to chief justice, William Rehnquist was forced to explain a 1951 memo he’d written, as a clerk to then-Justice Robert H. Jackson. He told the Senate the document, which argued that the court should preserve “separate-but-equal” racial segregation in the Brown v. Board of Education case, was merely written as “a statement of Justice Jackson’s tentative views for his own use.”
Rehnquist’s memo said:
I realize that 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 re-affirmed.
Jackson and the unanimous court ended up rejecting the “tentative view,” overturning Plessy’s embarrassing holding that public accommodations could legally be segregated along racial lines.
A Boston College Law Review article examines another newly discovered letter from Rehnquist highly critical of his former boss, calling Justice Jackson “half-cocked” and predicting he would not leave “a lasting influence on the court.” The letter, the authors say, appears to show “Rehnquist’s disappointment with Brown and the beginning of his outspoken criticism of the Warren Court.” The letter and other clues raise significant doubt about the veracity of Rehnquist’s explanations of the 1951 memo. Had they been discovered at the time, the authors suspect, it “would have been a bombshell at his Supreme Court confirmation hearings in 1971 and 1986.”
Instead, Rehnquist got to sit for more than 33 years on the high court — 19 of them as chief justice. Over that time he joined in countless opinions and dissents attempting to deny civil rights protections to LGBT Americans, oppose Affirmative Action, restrict freedom of speech, and undermine the separation of church and state.