In the grand scheme of reviled Supreme Court justices, William Rehnquist was no Roger Taney. But it was bad enough to be Rehnquist that he didn’t have to be. And so there’s a natural inclination to want to believe the worst of the show pony with his velvet stripes on his black robe. And Rick Hasen and Dahlia Lithwick do just that.
The late chief justice, who long sought to turn the 14th Amendment on its head, notoriously drafted a 1952 memo as a Supreme Court clerk that defended racial segregation in the South and the disastrous Plessy v. Ferguson decision on which the institution’s legality was based. Although Rehnquist denied during his confirmation hearings that the memo reflected his own views—saying they were meant to reflect those of Robert H. Jackson, the justice he was clerking for in 1952—a newly released court document, not previously reported, lays bare Rehnquist’s abhorrent true position on segregation as late as 1993.
This is a hard pill to swallow, given the reverence shown Justice Jackson, from his days as the Nuremberg prosecutor to his essay on the duties of a federal prosecutor. That he was the last justice who didn’t attend law school only adds to his mystique. That he selected William Rehnquist as one of his clerks is, well, dissonant.
That year, the then chief justice was still defending the logic of Plessy in no uncertain terms and using his position as a justice to block the court from acknowledging that the 14th Amendment barred segregation. “The Fourteenth Amendment prohibits discrimination; it does not require integration, and I think it is a mistake to intimate that it does even as a ‘goal,’ ” Rehnquist wrote in a memo to Justice Sandra Day O’Connor as part of an effort to have her remove a passage from an election decision. (For good measure, Rehnquist also requested that O’Connor remove a suggestion that the Civil War was fought in part to secure voting rights for Black people.)
This sort of parsing is the sort of thing that makes people really hate legal reasoning, lawyers and judges. On the surface, it seems obvious that if the Fourteenth Amendment prohibits racial discrimination, which it clearly does, how can it not simultaneously mandate a remedy for something that’s prohibited? But what remedy?
The logic of Rehnquist’s 1993 memo would seem to be in tension with landmark Supreme Court cases such as the Brown v. Board of Education decision, which prohibited school segregation, and the Loving v. Virginia decision, which ended bans on interracial marriage. Rehnquist evidently believed that Plessy was correctly decided as a law clerk in 1952, and still evidently believed as much as a chief justice of the United States in 1993. As Justice Henry Brown put it in Plessy, although the 14th Amendment was clearly meant to “enforce the absolute equality of the two races before the law,” it couldn’t have been meant to enforce “social equality.” Tragically, Rehnquist’s thinking on the 14th Amendment currently infects the conservative supermajority of the Supreme Court and could have devastating consequences for the end of this term.
Does questioning whether integration is mandated as the remedy to racial discrimination “evidently mean” that Rehnquist believed that Plessy was correctly decided? Did he believe that in 1952 as a clerk, and in 1993 as Chief Justice?
I cannot fathom how anyone could think that Rehnquist’s statement that “The Fourteenth Amendment prohibits discrimination” can be said to be “defending the logic of Plessy” at all, much less to be doing so “in no uncertain terms.” The majority in Plessy v. Ferguson (1896) infamously ruled that the Fourteenth Amendment allows laws that discriminate on the basis of race—laws, that is “permitting, and even requiring, [the] separation” of “the two races.” Justice Harlan, in his celebrated dissent, declared that “Our constitution is color-blind.” Rehnquist’s statement reflects Harlan’s dissent.
While there is much to condemn about Rehnquist’s view that the only meaningful remedy to prohibited discrimination is mandated integration, to argue that it inherently means he approved of Plessy’s “separate but equal” holding is a giant step too far. Rehnquist unequivocally stated to Justice O’Connor that the Equal Protection clause prohibited discrimination in the basis of race.
What that means has been placed in some doubt by Justice Ketanji Brown Jackson’s statements at oral argument in the affirmative action cases that the Fourteenth Amendment was not meant to be colorblind at all, but was meant to mandate a race conscious remedy for the benefit of former slaves.
In that voting rights case, Allen v. Milligan, the first Black woman to hold a seat on the Supreme Court explained that the drafters of the amendment intended that its vision be applied “in a race-conscious way” so that freed former slaves “were actually brought equal to everyone else in the society.” She went on to urge, “That’s not a race-neutral or race-blind idea.”
Justice Brown Jackson makes a strong argument for her position, but is it beyond question?
Hasen and Lithwick argue in their piece against the position that the Fourteenth Amendment embeds Harlan’s theory of colorblindness, and they lavishly praise Justice Ketanji Brown Jackson’s jumbled statements/questions at oral argument in a voting-rights case last October. For present purposes, we can pass over the merits, or lack thereof, of their critique. It’s one thing to disagree with the colorblindness position. It’s quite another to conflate it with “the logic of Plessy.” Under the Hasen/Lithwick confusion, there is no difference between the Plessy majority and Harlan’s dissent.
Is it fair to argue that the Fourteenth Amendment’s Equal Protection clause was not intended to be colorblind, but to be race-conscious so as to remedy the legacy of racial discrimination? Absolutely. But it’s also fair to argue the opposite. The point is that it is neither racist nor segregationist to take the position that the Equal Protection clause mandates colorblind laws rather than race-conscious laws, and despicable though Rehnquist might otherwise have been, his questioning whether integration was mandated does not make him a believer in Plessy v. Ferguson.