Rehnquist, the Clerk
[ opinion - august 05 ]
When Chief Justice Rehnquist leaves the Court, it will be with a smile that he was not entitled to be there in the first place.
Rehnquist obtained his confirmation as associate justice in 1971, and later as chief justice in 1986, by making false statements before the Senate Judiciary Committee concerning his writing in 1952, when he was clerk to Justice Robert Jackson, of a legal memorandum in support of segregation when Brown v Board of Education was before the court. Jackson had died in 1954.
In 1971, when Rehnquist, a Nixon nominee, appeared before the Senate Judiciary Committee, he was confronted with his 1952 memo. He stated that his 1952 memo was written, at Jackson's request, for use at a conference of the justices in Brown as a statement of Jackson's views concerning the constitutionality of segregation. Rehnquist restated his claim before the committee in 1986 when nominated for the chief justiceship. In doing so, he committed the despicable act of putting into the mouth of the dead Jackson a racist position that Jackson would have denounced from his grave, if that had been possible.
After Rehnquist's confirmation as chief justice in 1986, an examination of the papers of Justice Jackson at the Library of Congress disclosed Jackson's draft of his unissued concurrence in Brown, a document unequivocally declaring segregation unconstitutional, and wholly “inconsistent with Rehnquist's assertion that his memo was intended to state Jackson's rather than Rehnquist's view on the constitutionality of segregation.” This the pointed judgment of Bernard Schwartz, one of the greatest scholars of US constitutional law. Schwartz, A History of the Supreme Court, p290 (1993); see Richard Kluger's monumental work, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality, p609 (1975).
Had Jackson's draft of his unissued concurrence in Brown been known to the Senate when it voted on Rehnquist's nomination in 1971, it undoubtedly would have deprived Rehnquist of a seat on the Supreme Court, to say nothing of the chief justiceship in 1986. Chief Justice Warren, however, persuaded the court in Brown to speak in one, unanimous opinion. Had Justice Jackson issued his concurring opinion in Brown, Rehnquist would not have been on the Court today.