Separate But Equal Legacy of Chief Justice Bill Rehnquist

On this 50th anniversary of the crowning achievement of Chief Justice Earl Warren, the unanimous decision in the 1954 Brown v. Board of Education case ending segregation in public schools, it is fitting to consider the important legacy of Brown and see just how far we have come. In terms of educational institutions, public universities in Georgia, Alabama, Tennessee, Mississippi, and the rest of the country that were once all-White are now racially integrated. Yet America remains racially polarized and divided at times. We saw evidence of that polarization in the typical Black American's reaction and the typical White American's reaction to the verdict in the O.J. Simpson criminal trial.

Elsewhere, most White Americans have no idea that Chief Justice Bill Rehnquist, while he served as a law clerk to Justice Robert Jackson in 1952-53, wrote a legal memo defending the old and reviled "separate but equal" doctrine. But Black Americans are well aware that Rehnquist espoused beliefs that would have kept them out of public schools, out of public colleges and universities, using filthy and cracked public toilets, drinking out of separate water fountains, etc.

In his own defense, Rehnquist insisted during his 1971 confirmation hearings that he had merely been distilling Jackson's views. But this type of defense displays a shameless streak. You don't collaborate with the devil and then seek to avoid guilt by saying “the devil made me do it.� It is hard to believe that Justice Jackson, who witnessed first-hand atrocities of the Nazi regime as a judge of the Nuremburg trials, would espouse beliefs of race superiority. If there is any question in White Americans' or Black Americans' minds as to whether Bill Rehnquist espoused the beliefs stated in the memo he penned, they need only look to his track record on the court.

Without exception, Rehnquist has voted against nearly every civil rights action before the court on which he sits. He has endeavored to make job discrimination claims harder to win in court. He has rejected the use of statistics showing that the death penalty in Southern states continues to be applied, and always has been applied, in a racially biased way. For Rehnquist, that is not a problem, and it is enough to make the lips of any rabid segregationist smile with glee.

Rehnquist fought with all of his meager intellect as a law clerk to prevent Justice Jackson from voting in favor of the majority in Brown v. Board of Education. Black Americans know that Rehnquist's memo from his law clerk days entitled “A Random Thought on the Segregation Cases,� stated in part: "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." Plessy, of course, was the infamous 1896 case holding racial segregation to be constitutional. Plessy effectively gutted the progress made in reforming the former Confederate states, and it permitted Jim Crow laws to remain on the books for another sixty years with all the strife and bitterness and lynchings that ensued.

Plessy is routinely taught to law school students across the land as an example of the lowest, darkest days of the U.S. Supreme Court, when the justices caved in to political pressure and did not adhere to the mandates of the U.S. Constitution. Plessy is uniformly cited as an example of one of the worst decisions ever rendered by the U.S. Supreme Court, second only to the infamous Dred Scott decision holding Black people did not have a right to be free under the U. S. Constitution. It is thus remarkable that Rehnquist would write a memo saying Plessy was good case law. He might just as well have donned a Ku Klux Klan hood and said that the Negro is an inferior race. Black Americans are not likely to forget Rehnquist's words. No forgiveness is necessary, because Rehnquist remains defiant and has never apologized or sought forgiveness from anyone for his words, no matter how much hurt they may have caused.

During Rehnquist's confirmation hearing in 1986, his opponents again raised the memo as a sign of his latent prejudice. Rehnquist once again defended himself by claiming that he wrote the memo in response to a request from Justice Jackson for a discussion of the legal arguments favoring segregation. But several scholars - most convincingly, Richard Kluger in his epic book Simple Justice on Brown v. Board - have concluded that Rehnquist wrote the memo to express his personal views on the case. In any event, Rehnquist's voting record on the court speaks louder than any excuses offered during his confirmation hearings. He has sought to gut the holding of Brown v. Board, whenever possible, as with other civil rights holdings, including the important Miranda warnings that police officers must give suspects upon detaining them.

In one final footnote to this story, it goes without saying the Bill Rehnquist is no hero to the Black community in America. On Meet the Press on Sunday, Feb. 15, 2004, Democratic Congressmen Charlie Rangel of New York City stated that many Black Americans regard George W. Bush as the first president appointed by the U.S. Supreme Court. Furthermore, where White Americans feel that stopping the vote count in Florida was correct and that Bush would have won the popular vote there even if the vote count had continued, Rangel stated that most Black Americans felt their votes were not properly counted in Florida. According to Rangel, Black Americans worked hard to register to vote, and then the Supreme Court took away their votes by stopping the count. Rangel suggested the result will be a backlash against the Supreme Court (led by Rehnquist) with increased voter turnout for the 2004 presidential election.

© Copyright 2004 by Michael A. S. Guth. All Rights Reserved. No portion of this article, including this web page, may be copied, retransmitted, reposted, or duplicated in significant portion without the express written permission of Dr. Michael Guth. Users are always welcome to establish links to this web page or to quote from it freely.

Michael A. S. Guth, Ph.D., J.D., is a constitutional law attorney, legal brief writer, and health care researcher based in Oak Ridge, TN. A web page describing his law practice and other legal writings is available at http://riskmgmt.biz His current research comprises inefficiencies in health care insurance, pharmaceutical pricing, and best available treatments for Alzheimer's disease, osteoporosis, and high cholesterol. He has developed and/or taught more than twenty on-line courses at more than a dozen educational institutions in the areas of economics, finance, business strategy, business law, health care administration, politics, and criminal justice. Interested students are encouraged to view his web page at http://riskmgmt.biz/economist.htm and click on some of the papers and articles he has written.