New Look at an Old Memo Casts More Doubt on Rehnquist

In 1952, a young Supreme Court clerk wrote a memorandum that would come to haunt him.

The court was considering Brown v. Board of Education, the great school desegregation case. The question for the justices was whether to overrule Plessy v. Ferguson, the 1896 decision that said “separate but equal” facilities were constitutional.

The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerk’s initials — “WHR,” for William H. Rehnquist.

“I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues,” Mr. Rehnquist wrote, “but I think Plessy v. Ferguson was right and should be reaffirmed.”

The memo was disclosed by Newsweek in 1971, on the eve of the Senate floor debate on Mr. Rehnquist’s nomination to the Supreme Court. It caused a firestorm, one that was rekindled when President Ronald Reagan nominated Justice Rehnquist to be chief justice in 1986.

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In a new article in The Boston College Law Review, two scholars reconstruct and analyze another letter by Mr. Rehnquist, this one to Justice Felix Frankfurter in 1955, and they draw some stinging conclusions.

The story of the letter is itself something of a yarn. In 1972, somebody — likely a scholar — stole hundreds of pages from Justice Frankfurter’s papers at the Library of Congress, and the Rehnquist letter to Justice Frankfurter seems to have been among them.

full: http://www.nytimes.com/2012/03/20/us/new-look-at-an-old-memo-casts-more-doubt-on-rehnquist.html