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Possible Solutions In New York, setting up such regation Cases.” To many legal a program would require a lot of historians it is the most “notori- Judge Rakoff set out three work. Planners would have to fig- ous” memorandum ever written possible solutions: ure out what practitioners could by a Supreme Court clerk. and could not do; law schools (1) Legal Insurance: He said that would have to develop programs; A Random Thought (or Two) it had been tried, but had not and law firms would have to set caught on because of the high up apprenticeship programs. Rehnquist’s memorandum is cost of the insurance and be- Real justice will not be a brief, six paragraph document. cause people were less likely achieved if people do not have The bulk of the memorandum to foresee legal problems. professional help in legal matters, deals with cases which caused the (2) On-line legal assistance: This Judge Rakoff said. Supreme Court to get into “hot is limited to preparation of water” – e.g., Dred Scott (see legal documents and raises Federal Bar Council Quarterly, concerns about the unauthor- Legal History May 2016), Lochner (see Federal ized practice of law. A person Bar Council Quarterly, February giving on-line advice cannot Did William Rehnquist 2017), and the Court’s decisions represent clients in court. invalidating the first set of New Lie to Become a (3) Certified legal practitioners: Deal legislation (see Federal Services could be provided at Justice, and Then Bar Council Quarterly, February a fraction of the cost. Chief Justice? 2008). The document then turns to The state of Washington has By C. Evan Stewart parts of the oral argument recent- a program for licensed legal tech- ly proffered by John W. Davis nicians that has been opposed by and by . Davis members of the bar and has devel- (of Davis Polk & Wardwell) rep- oped slowly. Massachusetts and resented the state of South Caro- Utah are considering such pro- lina; he had argued that the reso- grams. In 2014, a New York court lution of the issue must be left to made legal assistants available to Congress, and that the Justices’ help unrepresented litigants. personal views should not play a A program for certified le- decisive role in the outcome. In gal practitioners could be staffed response, Rehnquist wrote: through law school courses, ap- prenticeships at law firms and [T]he Court is, as Davis sug- licensing for legal advice. The In December 1952, William gested, being asked to read certified legal practitioners could H. Rehnquist wrote a memoran- its own sociological views assist litigants in housing court, into the Constitution. Urging family court and city administra- dum to his boss, Supreme Court a view palpably at variance tive courts. Over time, the prac- Justice Robert H. Jackson. It with and probably titioners could become special- likely was written just after the with legislative history, ap- ized. The quality would probably first set of oral arguments on the pellants seek to convince the not be as high as with law school legendary case Brown v. Board of Court of the moral wrongness graduates, but would provide ser- Education, 347 U.S. 483 (1954). of the treatment they are re- vices that would not be available The title of the memorandum was ceiving. I would suggest that at all otherwise. “A Random Thought on the Seg- this is a question the Court 15 March/April/May 2018 Federal Bar Council Quarterly

need never reach; for regard- the penultimate sentence that has (his initials, WHR, are at the bot- less of the Justice’s individual caused the big kerfuffle: I “ real- tom of the memorandum). views and the merits of segre- ize that it is an unpopular and un- Two days later, he delivered a gation, it quite clearly is not humanitarian position for which letter to the chairman of the Sen- one of those extreme cases I have been excoriated by ‘lib- ate Judiciary Committee, James which commands intervention eral’ colleagyes [sic], but I think O. Eastland (Democrat from Mis- from one of any conviction. If Plessy v. Ferguson was right and sissippi). In his letter, Rehnquist this Court, because its mem- should be re-affirmed.” Plessy, of wrote: bers individually are “liberal,” course, is one of the worst cases in and dislike segregation, now the Court’s entire jurisprudence, As best I can reconstruct the chooses to strike it down, it where the Court (with one dissent) circumstances after nineteen differs from the [Anti-New embraced the “” years, the memorandum was Deal Court] only in the kinds doctrine (see Federal Bar Council prepared by me at Justice of litigants it favors and the Quarterly, August 2016). Jackson’s request; it was in- kinds of special claims it pro- tended as a rough draft of a tects. To those who would ar- Nominee to the Supreme Court statement of his views at the gue that “personal” rights are conference of the Justices, more sacrosanct than “prop- Rehnquist joined the Nixon rather than as a statement of erty” rights, the short answer administration as an assistant at- my views…. He expressed is that the Constitution makes torney general, in charge of the concern that the conference no such distinction. . The should have the benefit of all president’s first meeting with of the arguments in support Marshall (of the NAACP) had him did not go well; Nixon told of the constitutionality of the famously based much of his argu- his counsel (John “separate but equal” doctrine, ment on sociological evidence. Dean) that Rehnquist “dressed as well as those against its Indeed, before the Court, he asked like a clown” (pink shirt, psy- constitutionality. that it take judicial notice of Gun- chedelic tie, etc.). Nonetheless, **** nar Myrdal’s “An American Di- in 1971, the president nominated lemma: The Negro Problem and Rehnquist, along with Lewis F. I am satisfied that the memo- Modern Democracy” (Harper’s Powell, to fill the vacant seats randum was not designed to 1944), which detailed the causes of Justices and John be a statement of my views on and consequences of segregation Marshall Harlan II. these cases. Justice Jackson (the Court in fact took Marshall Rehnquist’s nomination was not only would not have wel- up on his request – see footnote 11 opposed by many Democratic comed such a submission in of its decision). To that point, the senators, but it looked like he this form, but he would have Rehnquist memorandum replied: would nonetheless be confirmed quite emphatically rejected it “If the Fourteenth Amendment (the Senate Judiciary Committee and, I believe, admonished did not enact Spencer’s Social voted out his nomination 12 to 4). the clerk who had submit- Statios [sic] [a reference to Justice On December 6, 1971, however, ted it. I am fortified in this Holmes’ famous dissent in Loch- just as the Senate was ready to de- conclusion because the bald, ner], it just as surely did not enact bate his appointment, Newsweek simplistic conclusion that Myrdal’s American Dilemma.” magazine released the text of the “Plessy v. Ferguson was right If that had been the totality Rehnquist memorandum, written and should be re-affirmed” is of Rehnquist’s memorandum, it 19 years before. At first, Rehnquist not an accurate statement of is highly unlikely it would have stood silent on the document and my own views at the time. become so famous/infamous. It is whether he was even its author I believe that the memoran- Federal Bar Council Quarterly March/April/May 2018 16

dum was prepared by me as terrogate him on his 1952 memo- of this one and a half page a statement of Justice Jack- randum. memo is along those ideas son’s tentative views for his Rehnquist began his testimo- that the Court has run afoul own use at conference. The ny before the Judiciary Commit- in the past by reading into the informal nature of the mem- tee by reaffirming his 1971 let- Constitution what it felt were orandum and its lack of any ter to Senator Eastland: “[I] have the morally right views, only introductory language make absolutely no reason to doubt its to find that it had made a mis- me think that it was prepared correctness now.” He then tried take. And this apparently was very shortly after one of our to address/mitigate the discordant an effort to apply those ideas oral discussions of the sub- sentiments voiced in his memo- to the Brown case. ject. It is absolutely incon- randum. First off, he declared that **** ceivable to me that I would he had always “thought Plessy [T]he thesis which is very have prepared such a docu- against Ferguson was wrong,” roughly and very shortly, cer- ment without previous oral even when he had clerked for tainly developed in the memo discussion with him and spe- Justice Jackson. (This reiterated that most of the Court’s mis- an assertion previously written in cific instructions to do so. takes up to that time had been **** his 1971 letter to Senator East- reading its own moral notions land.) At the same time, however, In view of some of the re- into the Constitution was a he noted that Plessy “had been on view that Justice Jackson cent Senate floor debate, I the books for 69 years, [that Con- wish to state unequivocally was a champion of. His entire gress had not acted in the interim, book, “Struggle for Judicial that I fully support the le- and] that the same Congress that gal reasoning and the right- Supremacy,” is devoted to promulgated the 14th Amendment that thesis. ness from the standpoint of had required segregated schools in fundamental fairness of the the District [of Columbia]…. [Ac- Brown decision. And lastly, he (and Senator cordingly, he (and Justice Jack- Orrin Hatch (Republican from (Emphasis in original.) son)] saw factors on both sides.” Utah)) noted that the Justices’ Rehnquist also pledged his fealty notes from the initial, December Rehnquist’s 1952 memoran- to Brown – both as to its outcome 1952 conference – directly after dum and his 1971 written expla- and reasoning. (This also tracked the first oral argument (about the nation of it were debated by the an assertion that had been made time of Rehnquist’s memoran- Senate. After a week (and with in his 1971 letter to Senator East- dum) – showed a very uncertain Christmas looming), the nomina- land.) Rehnquist next attempted to set of Justices, perplexed about tion was approved by a vote of 68 put the historical portions of his how best to move forward (of to 26. memorandum into the context of whom Jackson was but one). Justice Jackson’s own previously Then came the attacks, the A Second Time Around expressed views: harshest of which came from Democratic Senators Howard In 1986, Chief Justice Warren Justice Jackson was a great Metzenbaum (Ohio), Ted Ken- Burger announced his retirement believer in the idea of what- nedy (Massachusetts), and Joe and President Reagan nominated ever you want to call rep- Biden (Delaware). Both Ken- William Rehnquist to succeed resentative democracy, the nedy and Metzenbaum drilled in him. Now Rehnquist’s opponents Court having made mistakes on the repeated use of “I” in the would get to ask him – under oath in the past by reading its own document. Kennedy: “Do the ‘I’s’ – what they had not been able to moral views into the Constitu- refer to you, Mr. Rehnquist?” do in 1971; to wit, they could in- tion. And much of the theme Rehnquist: “No, I do not think 17 March/April/May 2018 Federal Bar Council Quarterly they do.” Kennedy: “You main- tioned anti-senators, Paul Simon Cronson also told The New York tain that the ‘I’s’ refer to Justice (Democrat, ) and Patrick Times that both he and Rehnquist Jackson?” Rehnquist: “Yes. Obvi- Leahy (Democrat, ) also “personally thought at the time ously something for him to say.” voted “no”). Thereafter, the Sen- [1952] that the 1896 decision, To Metzenbaum’s incredu- ate confirmed Rehnquist by a vote Plessy v. Ferguson, was wrong.” lous questioning on the “I’s”, of 65 to 33. He served as Chief Finally, it seems clear from Rehnquist offered these answers: Justice until his death on Septem- Justice Jackson’s prior decisions, ber 3, 2005. Rehnquist was suc- writings, and contemporaneous Yes, I suppose one could read ceeded by , who had evidence, especially at the time it either way. The “I’s” in it served as his in 1980-81. of the first set of oral arguments certainly could have been on Brown, that he was troubled mine rather, just looking at it Evidence Supporting by how to adequately deal with as a text, rather than Justice Rehnquist’s Testimony Plessy, Congress’ role/respon- Jackson’s. sibility to desegregate schools *** The most direct evidence in and public accommodations, I think the reconstructing favor of Rehnquist’s explanation Marshall’s sociology arguments again on the basis of this of the memorandum is his uncon- (which he never found persua- memo, I would suspect that tradicted sworn testimony. Justice sive), and how to effect an appro- a logical interpretation in the Jackson, having died on October priate remedy (if the Court were to last paragraph is I perhaps 9, 1954 (after joining the Court’s step in where Congress had failed imagined this was the way initial, unanimous decision, but to act). The fact that Jackson him- Justices spoke in conference. before its “remedies” decision – self drafted six versions of a sepa- Brown v. Board of Education, 349 rate (but never published) opinion When Biden questioned U.S. 294 (1955) (“all deliberate on Brown (long after Rehnquist’s him on the part of the sentence speed”)), was not in a position to clerkship had ended – starting which referenced being “excori- dispute his former clerk’s version. on December 7, 1953, ending on ated by ‘liberal’ colleagyes [sic],” Rehnquist’s fellow clerk, Don- March 15, 1954) is further evi- Rehnquist testified that he was ald Cronson, also weighed in on dence that Jackson was struggling referencing the likelihood of Jack- this subject, first in a telegram sent with how best to articulate a con- son being “excoriated” at some from London three days after the stitutional basis for the Court mak- future conference of the Justices; Newsweek article. Cronson had ing a “political decision” against at the same time, he did not deny also written a memorandum for segregated schools. that he had had hard-fought policy Justice Jackson at the same time as arguments on this subject with his Rehnquist (more about that later). Evidence At Odds With fellow clerks: “Again, it is hard to As for Rehnquist’s memorandum, Rehnquist’s Testimony remember back, but I think it prob- Cronson recalled collaborating ably seemed to me at this time that on it with Rehnquist; indeed, he First and foremost, at no point some of the others simply were not claimed “a great deal of the con- in his career did Justice Jackson facing the arguments on the other tent was the result of my sugges- ever say or write anything in- side, and I thought they ought to tions … and it is probable that the dicating that he thought Plessy be faced…. I thought there were memorandum is more mine than “was right and should be re- good arguments to be made in [Rehnquist’s].” Cronson further affirmed.” Indeed, both in 1971 support [of the other side].” stated that Jackson had asked for and 1986, Jackson’s long-serving Ultimately, the Judiciary a memorandum “supporting the secretary accused Rehnquist of Committee voted out the nomina- proposition that Plessy was cor- “smear[ing]” a great man: “Jus- tion 13 to 5 (besides the aforemen- rect.” At the same time, however, tice Jackson did not ask law Federal Bar Council Quarterly March/April/May 2018 18 clerks to express his views. He Few Expressed Prejudices on the to Jackson “was a trivial error, and expressed his own and they ex- Segregation Cases.” Based upon an entirely honest one.” He went pressed theirs. That’s what hap- Jackson’s constitutional and jur- on to attempt to reconcile incon- pened in this instance.” isprudential views, not only did sistencies between his version And it was not only partisan it offer numerous alternative of what happened in 1952 with Democrats who were not buy- ways to deal with Brown (includ- Rehnquist’s; but those attempts ing Rehnquist’s story. Years later, ing the one the Court ultimately only highlighted that the circle wrote: “I thought he chose: not overruling Plessy per could not be squared. In reply, lied. His explanation was so at se, but holding that “separate Rehnquist asked Cronson not to odds with the style and contents but equal” violated the Constitu- publish his memorandum, sug- of his memo to Jackson that it did tion when applied specifically to gesting that this was “a case where not pass the smell test…. To say public schools), it also set forth it is best to let sleeping dogs lie.” I was disappointed is an under- Cronson’s view that “Plessy Another memorandum written statement.” was wrong.” Perhaps more im- by Rehnquist for Jackson during Almost as implausible as portant was its use of pronouns, his clerkship also hurts his “I’s” Rehnquist’s explanations (under where Cronson consistently re- explanation. Before the Court oath) as to the “I’s” not being him ferred not to “I,” but to Jack- in Terry v. Adams, 347 U.S. 461 was his explanation of Jackson son’s prerogative(s) (e.g., “One (1953), was the issue of whether being “excoriated by ‘liberal’ col- of the main characteristics to be white-only pre-primary elections leagyes [sic].” First of all, there is found in your work on this court were constitutional. Rehnquist’s no evidence of Jackson ever being is a reluctance to overrule exist- memorandum first stated: excoriated by his Supreme Court ing constitutional laws….” (em- colleagues. And while Jackson be- phasis added); “You are still the I have a hard time being de- lieved in judicial restraint, he was justice.”). In sum, the approach, tached about this case, because in fact a political liberal, having tone, and style of Cronson’s several of the Rodell school served President Franklin D. Roos- memorandum stands in fairly of thought among the clerks evelt in a number of capacities stark contrast to Rehnquist’s. began screaming as soon as before joining the Court (e.g., So- Even more problematic was they saw this that “Now we licitor General, Attorney General). the fact that Cronson’s memory can show those damn South- Finally, not only did other contem- got more refreshed as he thought erners,” etc. I take a dim view poraneous clerks (e.g., Alexander more about his interactions with of the pathological search for discrimination, a la Walker Bickel, Donald Trautman, John his co-clerk. In 1975, Cronson White, Black, Douglas, Ro- Fassett) recall contentious, lunch- prepared another memorandum dell, etc., and as a result I now time debates with Rehnquist, so (“A Short Note on an Unimportant have something of a mental did Donald Cronson, who later Memorandum”), which he sent on bloc against this case. wrote: “Bill Rehnquist defended to Rehnquist; he expected that it the [pro-Plessy] position with would cause “the basically trivial gusto and cogency. His virtuoso episode of the WHR Memoran- Rehnquist then went on to write: performance [at the lunch-time dum [to] soon be allowed to ob- debates] on the subject of Plessy tain the obscurity that it deserves.” If you are going to dissent, I may have led to the composition It is in this document that Cronson should think you might com- of the WHR memorandum.” first undercut Rehnquist’s “exco- bine the ideas which you ex- And Cronson also proved riated” explanation (he also later pressed last week with an at- unhelpful to Rehnquist in other did so in a 1986 Washington Post tack on the reasoning of the ways as well. First off was his story). Cronson then posited that two “majority opinions.” own 1952 memorandum, “A Rehnquist’s attribution of the “I’s” *** 19 March/April/May 2018 Federal Bar Council Quarterly

Your ideas – the Constitution do with either past or current deci- making – the “due process of does not prevent the major- sions of the Supreme Court of the law” and “equal protection of ity from banding together, .” But that did not the laws” clauses – are about nor does it attaint [sic] suc- quiet his interest in those subjects the vaguest and most general cess in the effort. It is about or his desire to engage in public of any in the instrument. The time the Court faced the fact debate thereon. In 1957, for ex- Court in Brown v. Board of that white people on [sic] the ample, Rehnquist spoke at a local Education … held in effect South don’t like the colored bar association and railed against, that the framers of the Four- people; the Constitution re- among other things, the Warren teenth Amendment left it to strains them from effecting Court’s “Black Monday” deci- the Court to decide what “due this dislike through state ac- sions (Brown was widely referred process” and “equal protec- tion, but it most assuredly to throughout the South as “Black tion” meant. Whether or not did not appoint the Court as Monday”). In that same year, the framers thought this, it is a sociological watchdog to Rehnquist published the first of sufficient for this discussion rear up every time private two articles in U.S. News & World that the present Court thinks discrimination raises its ad- Report. While the thrust of both the framers thought it. mittedly ugly head. articles was on the influence of the Supreme Court’s “liberal” clerks, In 1964, Rehnquist contin- When questioned about this Rehnquist also threw in a critique ued in a similar vein, opposing memorandum by Senate Judicia- of the Court’s “expansion of fed- a proposed Public Accommoda- ry Committee members in 1986, eral power at the expense of State tion Ordinance for Phoenix. In Rehnquist was very clear in de- power” – a coded phraseology 1967, he published a letter de- lineating that the “I’s” meant him many Southerners were leveling fending de facto segregation in and the “you”/“Your” references at the in the wake of Phoenix’s public schools; in that meant Jackson. Brown (“Impeach ”). letter, Rehnquist posited that the (Interestingly, Jackson first Then, in 1959, Rehnquist elimination of such segregation drafted a dissenting opinion, in penned an article for the Harvard was “distressing to me,” as well accord with Rehnquist’s mem- Law Record. Finding it appalling as to many who “would feel we orandum. Later, however, he that no Senator had questioned are no more dedicated to an ‘in- changed his mind and joined Jus- Justice Charles Whittaker in his tegrated’ society than we are to a tice Clark’s opinion, which con- confirmation hearings about the ‘segregated’ society.” curred in the majority ruling that Brown decision “decided three When he testified at his 1971 white-only pre-primaries violated years before and implementing confirmation hearings, Rehnquist the Fifteenth Amendment.) decisions [that] had been handed was very careful in what he said Then there is the history of down in the interim,” Rehnquist about Brown. Repeatedly, he Rehnquist’s views about Brown let Harvardians know how he re- testified that Brown represented itself. While he pledged fealty to ally felt: settled constitutional law because its holding and reasoning in 1971 a unanimous Supreme Court had and 1986, he was very careful not There are those who bemoan ruled on the initial decision and to testify that he agreed with it the absence of stare decisis in it had been “repeatedly reaf- at the time it was handed down. constitutional law, but of its firmed by a changing group of And that is because he did not. absence there can be no doubt. [Justices];” “that, to me, is very After clerking, Rehnquist And it is no accident that the strong evidence that the Constitu- moved to Phoenix and began provisions of the constitu- tion does, in fact, require that re- practicing in a small firm which tion which have been most sult.” (See 1971 Transcript at pp. had (in his words) “very little to productive of judicial law- 55, 76, 161, 167-69.) Federal Bar Council Quarterly March/April/May 2018 20

In 1985 (the year before he • It was not only conservatives 334 U.S. 1 (1948) (striking was nominated to become Chief and Southerners who found down restrictive covenants Justice), Rehnquist gave an inter- Brown to be a troubling deci- in real estate contracts); Swe- view to . In it, sion. Learned Hand, for ex- att v. Painter, 339 U.S. 629 he repeated his view that Brown ample, in his famous 1958 (1950) (the University of now constituted well-settled con- lectures at the Harvard Law Texas Law School required stitutional law. But he candidly School, attacked – in general to admit a black student; cre- acknowledged that his views had – the Court as having become ating an alternative all-black changed about Brown since his “Platonic Guardians,” and – as law school did not provide clerkship: “I think they probably to Brown specifically – it being equal facilities, resources, have…. I think there was a per- a decision not based in law. In or opportunities)]…. It was fectly reasonable argument the other words, if equal protec- natural, the logical and prac- other way…. Whatever I wrote for tion meant anything, Plessy tically the only way the case Justice Jackson was obviously a had to be expressly overruled could be decided.” long time ago, and to kind of inte- and all racial discrimination grate it into something I’m telling had to be found unconstitu- you now, I find rather difficult.” tional. See also H. Wechsler’s “Toward Neutral Principles of Intellectual Property * * * Constitutional Law,” 78 Har- Update vard Law Review 1 (1959). So did William Rehnquist lie, But that would mean, among Combating Copyright misrepresent, dissemble to the other things, all public ac- Trolls with Rule 68 Senate Judiciary Committee? I commodations would have to will let the reader(s) decide. become non-discriminatory By Tal Dickstein and various states’ anti-mis- Postscripts cegenation statutes would also have to be struck down; those • The starting points for readers equal protection advances who want to know more on would not come until the Civil this subject (beyond the 1971 Rights Act of 1964 and Loving and 1986 hearing transcripts) v. , 388 U.S. 1 (1967). are R. Kluger’s “Simple Jus- • Many believe that Brown was tice: The History of Brown v. a seismic break from Plessy Board of Education” (Knopf v. Ferguson. But let us al- 1975); D. O’Brien’s “Justice low Chief Justice Warren to Robert H. Jackson’s Unpub- put that notion to rest: “Some lished Opinion in Brown people think Brown was rev- v. Board” (Kansas 2017); olutionary, … [but] I see it J. Simon’s “Eisenhower v. as evolutionary in character. While patent trolls have Warren” (Liveright 2018); Just look at the various cases plagued technology and pharma- and J. Barrett & B. Snyder, that had been eroding Plessy ceutical companies for years, a “Rehnquist’s Missing Letter: for so many years [e.g., Smith less well-known but equally vexa- A Former Law Clerk’s 1955 v. Allwright, 321 U.S. 649 tious creature has recently set its Thoughts on Justice Jackson (1944) (striking down a Texas sights on media and entertain- and Brown,” 53 Boston Col- primary law disenfranchising ment companies – the copyright lege Law Review 631 (2012). blacks); Shelly v. Kraemer, troll. Image recognition software