Wednesday, March 28, 2012

Rehnquist, Jackson, and letters stolen from Library of Congress

“I think that Plessy v. Ferguson was right and should be reaffirmed.”

In December 1952, Supreme Court law clerk William H. Rehnquist wrote that privately to his boss, Justice Robert H. Jackson.  In December 1971, this Rehnquist memorandum, defending the constitutionality of racial segregation under Plessy’s “separate but equal” doctrine, was discovered.  Rehnquist’s own Supreme Court confirmation then hung in the balance.  He claimed that the memorandum reflected Jackson's views, not Rehnquist's.  He was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices.

Professor Brad Snyder (University of Wisconsin Law School) and I have just published an essay in the Boston College Law Review that pertains to this subject.

Our essay, “Rehnquist's Missing Letter:  A Former Law Clerk's 1955 Thoughts on Justice Jackson and Brown,” analyzes a newly discovered document, a letter that Rehnquist wrote to Justice Felix Frankfurter in 1955, criticizing Jackson.  This 1955 Rehnquist letter reveals what he thought about Jackson shortly after the Supreme Court declared in Brown v. Board of Education that school segregation was unconstitutional and, just months later, Jackson’s death.  We explain that this 1955 Rehnquist letter was not known during his Supreme Court confirmation hearings in 1971 and 1986, and that it is now missing and may have been stolen from Justice Frankfurter's Papers in the Library of Congress.

We argue that Rehnquist's 1955 letter represents his disappointment with Brown and the beginning of his outspoken criticism of the Warren Court.  We contend that the letter says less about how Rehnquist felt about Jackson and more about Rehnquist's disappointment over his Justice's role in Brown, the most important Supreme Court decision of the 20th century.

Some links—

For the Boston College Law Review, click here.

For Adam Liptak’s New York Times story about our essay and these issues, click here.

For a filmed excerpt from an August 2010 speech in which attorney E. Barrett Prettyman, Jr., explained the process by which Justice Jackson hired him in 1953 to be his solo law clerk, succeeding Rehnquist and his co-clerk, click here.

Thank you for your interest, and please share this with others.
Best wishes,

Professor John Q. Barrett
St. John’s University School of Law
Elizabeth S. Lenna Fellow
Robert H. Jackson Center, Inc., Jamestown, NY


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