Within the grand scheme of reviled Supreme Court docket justices, William Rehnquist was no Roger Taney. However it was dangerous sufficient to be Rehnquist that he didn’t need to be. And so there’s a pure inclination to wish to imagine the worst of the present pony together with his velvet stripes on his black gown. And Rick Hasen and Dahlia Lithwick just do that.
The late chief justice, who lengthy sought to show the 14th Modification on its head, notoriously drafted a 1952 memo as a Supreme Court docket clerk that defended racial segregation within the South and the disastrous Plessy v. Ferguson choice on which the establishment’s legality was based mostly. Though Rehnquist denied throughout his affirmation hearings that the memo mirrored his personal views—saying they had been meant to mirror these of Robert H. Jackson, the justice he was clerking for in 1952—a newly launched courtroom doc, not beforehand reported, lays naked Rehnquist’s abhorrent true place on segregation as late as 1993.
It is a arduous capsule to swallow, given the reverence proven Justice Jackson, from his days because the Nuremberg prosecutor to his essay on the duties of a federal prosecutor. That he was the final justice who didn’t attend legislation faculty solely provides to his mystique. That he chosen William Rehnquist as one in all his clerks is, nicely, dissonant.
That yr, the then chief justice was nonetheless defending the logic of Plessy in no unsure phrases and utilizing his place as a justice to dam the courtroom from acknowledging that the 14th Modification barred segregation. “The Fourteenth Modification prohibits discrimination; it doesn’t require integration, and I believe it’s a mistake to intimate that it does whilst a ‘aim,’ ” Rehnquist wrote in a memo to Justice Sandra Day O’Connor as a part of an effort to have her take away a passage from an election choice. (For good measure, Rehnquist additionally requested that O’Connor take away a suggestion that the Civil Struggle was fought partially to safe voting rights for Black individuals.)
This kind of parsing is the kind of factor that makes individuals actually hate authorized reasoning, lawyers and judges. On the floor, it appears apparent that if the Fourteenth Modification prohibits racial discrimination, which it clearly does, how can it not concurrently mandate a treatment for one thing that’s prohibited? However what treatment?
The logic of Rehnquist’s 1993 memo would appear to be in pressure with landmark Supreme Court docket instances such because the Brown v. Board of Schooling choice, which prohibited faculty segregation, and the Loving v. Virginia choice, which ended bans on interracial marriage. Rehnquist evidently believed that Plessy was appropriately determined as a legislation clerk in 1952, and nonetheless evidently believed as a lot as a chief justice of the US in 1993. As Justice Henry Brown put it in Plessy, though the 14th Modification was clearly meant to “implement absolutely the equality of the 2 races earlier than the legislation,” it couldn’t have been meant to implement “social equality.” Tragically, Rehnquist’s pondering on the 14th Modification at the moment infects the conservative supermajority of the Supreme Court docket and will have devastating penalties for the top of this time period.
Does questioning whether or not integration is remitted because the treatment to racial discrimination “evidently imply” that Rehnquist believed that Plessy was appropriately determined? Did he imagine that in 1952 as a clerk, and in 1993 as Chief Justice?
I can not fathom how anybody might assume that Rehnquist’s assertion that “The Fourteenth Modification prohibits discrimination” could be mentioned to be “defending the logic of Plessy” in any respect, a lot much less to be doing so “in no unsure phrases.” The bulk in Plessy v. Ferguson (1896) infamously dominated that the Fourteenth Modification permits legal guidelines that discriminate on the premise of race—legal guidelines, that’s “allowing, and even requiring, [the] separation” of “the 2 races.” Justice Harlan, in his celebrated dissent, declared that “Our structure is color-blind.” Rehnquist’s assertion displays Harlan’s dissent.
Whereas there may be a lot to sentence about Rehnquist’s view that the one significant treatment to prohibited discrimination is remitted integration, to argue that it inherently means he accredited of Plessy’s “separate however equal” holding is a big step too far. Rehnquist unequivocally acknowledged to Justice O’Connor that the Equal Safety clause prohibited discrimination within the foundation of race.
What which means has been positioned in some doubt by Justice Ketanji Brown Jackson’s statements at oral argument within the affirmative motion instances that the Fourteenth Modification was not meant to be colorblind in any respect, however was meant to mandate a race aware treatment for the good thing about former slaves.
In that voting rights case, Allen v. Milligan, the primary Black girl to carry a seat on the Supreme Court docket defined that the drafters of the modification supposed that its imaginative and prescient be utilized “in a race-conscious manner” in order that freed former slaves “had been truly introduced equal to everybody else within the society.” She went on to induce, “That’s not a race-neutral or race-blind thought.”
Justice Brown Jackson makes a powerful argument for her place, however is it past query?
Hasen and Lithwick argue of their piece in opposition to the place that the Fourteenth Modification embeds Harlan’s idea of colorblindness, and so they lavishly reward Justice Ketanji Brown Jackson’s jumbled statements/questions at oral argument in a voting-rights case final October. For current functions, we are able to move over the deserves, or lack thereof, of their critique. It’s one factor to disagree with the colorblindness place. It’s fairly one other to conflate it with “the logic of Plessy.” Underneath the Hasen/Lithwick confusion, there isn’t any distinction between the Plessy majority and Harlan’s dissent.
Is it truthful to argue that the Fourteenth Modification’s Equal Safety clause was not supposed to be colorblind, however to be race-conscious in order to treatment the legacy of racial discrimination? Completely. However it’s additionally truthful to argue the other. The purpose is that it’s neither racist nor segregationist to take the place that the Equal Safety clause mandates colorblind legal guidelines reasonably than race-conscious legal guidelines, and despicable although Rehnquist may in any other case have been, his questioning whether or not integration was mandated doesn’t make him a believer in Plessy v. Ferguson.