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.  Opposition to the Brown decision is a good way to doom a Supreme Court nomination. But Mr. Rehnquist had an explanation, which he sent to the Senate Judiciary Committee in a letter in 1971 and repeated under oath in 1986.  The opinions expressed in the memo, he said, were not his own. “I believe that the memorandum was prepared by me as a statement of Justice Jackson’s tentative views for his own use,” Mr. Rehnquist wrote.  Quite a bit of evidence has accumulated over the years to cast doubt on that explanation, and now there is more.  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 — probably 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.  The columnist Jack Anderson wrote about the thefts the next year, quoting a library official who said the institution had been “robbed blind” of papers of “incalculable value.”  The resourceful Mr. Anderson used his column to make a deal with the thief. “We have offered to act as an intermediary between the unknown scholar and the library,” he wrote. “We will guarantee not to reveal his name or otherwise identify him if he will contact us.”  It kind of worked. The thief provided photocopies of some of the documents to Mr. Anderson, who passed them along to the library. The Rehnquist letter was not among them. But a response to it solicited by Justice Frankfurter was, and it allowed the authors of the new law review article, Brad Snyder and John Q. Barrett, to reconstruct much of what Mr. Rehnquist had written.  Justice Frankfurter had made it a point to get to know the clerks in other justices’ chambers, and he and Mr. Rehnquist got along well. After Justice Jackson died in October 1954, Justice Frankfurter published tributes in two law reviews and sent copies to many of Justice Jackson’s friends and associates. Mr. Rehnquist, then in private practice, was probably on the list, and his 1955 letter was probably a response.  When Justice Frankfurter received the letter, he decided to share it with the law clerk who had succeeded Mr. Rehnquist. Over five pages, that clerk, E. Barrett Prettyman Jr., characterized and responded to Mr. Rehnquist’s letter.  Mr. Rehnquist said his former boss “had a tendency to go off half-cocked,” wrote opinions that “don’t seem to go anywhere” and did not leave “a lasting influence on the court,” Mr. Prettyman wrote in his own letter to Justice Frankfurter.  Mr. Prettyman called some of Mr. Rehnquist’s points “foolishness.” Others made him “slightly ill.”  Mr. Prettyman would go on to an exceptionally distinguished career as a Washington lawyer. He worked closely with Chief Justice John G. Roberts Jr. when the two men practiced law together at the firm now known as Hogan Lovells. (Chief Justice Roberts had also been a Supreme Court clerk — to Justice Rehnquist.)  The new law review article makes the case that “Rehnquist’s disappointment with Brown provides the most plausible motivation for his harsh 1955 letter about Jackson.” The article supports this theory by, among other things, reviewing Mr. Rehnquist’s letters to Justice Jackson, which were admiring and supportive until Brown and ceased after the decision was issued.  The article also contends that the 1955 letter from Mr. Rehnquist to Justice Frankfurter “would have been a bombshell” had it been revealed at the 1971 or 1986 confirmation hearings.  Perhaps. But the new evidence only buttresses information available at the time that undermined the account offered by the future chief justice.  For starters, of course, Justice Jackson joined the unanimous opinion in Brown in 1954. And Justice Jackson’s secretary, Elsie Douglas, told John P. MacKenzie of The Washington Post in 1971 that Mr. Rehnquist had “smeared the reputation of a great justice.”  In an interview last week, Mr. Prettyman said “there is absolutely no doubt in my mind” that the 1952 memo represented Mr. Rehnquist’s views and not those of Justice Jackson. But Mr. Prettyman said he was not persuaded that the 1955 letter was motivated by unhappiness about the Brown decision as opposed to what he called a rocky relationship between the justice and the clerk.  Still, Mr. Prettyman said he welcomed the attention the new article brought to Chief Justice Rehnquist’s role in and reaction to the Brown decision.  “The fact that a justice and a chief justice lied in order to advance himself,” Mr. Prettyman said, referring to Chief Justice Rehnquist in his confirmation hearings, “the fact that he thought the way he did about Brown — which was that it would be a national disgrace — those facts alone justify an exploration of what happened.”
Two scholars have drawn some stinging conclusions after reconstructing a 1955 letter by William H. Rehnquist that became an issue at his Supreme Court confirmation hearings.