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. While Rehnquist denied during his confirmation hearings that the memo reflected his own views—saying they were meant to reflect those of the justice he was clerking for in 1952, Robert H. Jackson—a newly-released court document, not previously reported, lays bare Rehnquist’s abhorrent true position on segregation as late as 1993.
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 O’Connor remove a suggestion that the Civil War was fought in part to secure voting rights for Black people.)
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 that prohibited school segregation and the Loving v. Virginia decision that ended bans on interracial marriages. 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 Supreme Court 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 super-majority of the Supreme Court and could have devastating consequences for the end of this term.
The stark evidence of Rehnquist’s true views were found in newly released papers of Justice John Paul Stevens, which include the memo from Rehnquist to Justice O’Connor. The context for Rehnquist’s statement was a response to Justice O’Connor’s early draft of the opinion in the case of Shaw v. Reno. In Shaw, a conservative Supreme Court majority ultimately held that taking race too much into account in drawing lines for congressional, state, or local legislative districts violated the Equal Protection Clause of the 14th Amendment. O’Connor’s final opinion for the majority held that drawing such districts “bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”