William Rehnquist - Law Clerk at The Supreme Court

Law Clerk At The Supreme Court

Rehnquist went to Washington, D.C. to work as a law clerk for Justice Robert H. Jackson during the court's 1952–1953 term. There, he wrote a memorandum arguing against federal-court-ordered school desegregation while the court was considering the landmark case of Brown v. Board of Education, which was later decided in 1954. Rehnquist's 1952 memo, entitled "A Random Thought on the Segregation Cases", defended the separate-but-equal doctrine. In that memo, Rehnquist said:

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by "liberal" colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.... To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.

In both his 1971 hearing for Associate Justice and his 1986 hearing for Chief Justice of the United States, Rehnquist alleged that the memorandum reflected the views of Justice Jackson rather than his own views. Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use." Elsie Douglas, long-time secretary and confidante of Justice Jackson, stated during Rehnquist's 1986 hearings that Rehnquist's allegation "is a smear of a great man, for whom I served as secretary for many years. Justice Jackson did not ask law clerks to express his views. He expressed his own and they expressed theirs. That is what happened in this instance." However, the papers of Justices Douglas and Frankfurter indicate that Justice Jackson voted for Brown in 1954 only after changing his mind. At his 1986 hearings for the slot of Chief Justice, Rehnquist tried to put further distance between himself and the 1952 memo: "The bald statement that 'Plessy was right and should be reaffirmed', was not an accurate reflection of my own views at the time." However, Rehnquist acknowledged defending Plessy in arguments with fellow law clerks. Some commentators have concluded that the memo reflected Rehnquist's own views rather than those of Justice Jackson. A biography on Jackson corroborates this explanation—Jackson instructed his clerks to express their own views, not his. In any event, while later serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the Brown decision, and frequently relied upon it as precedent. Rehnquist stated in 1985 that there was a "perfectly reasonable" argument against Brown v. Board and in favor of Plessy, even though he now saw the Court's decision in Brown as correct.

In a memorandum to Justice Jackson about Terry v. Adams, which involved the right of African-Americans to vote in an allegedly private Texas election, Rehnquist wrote:

The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south do not like the colored people: the constitution restrains them from effecting this dislike through state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.

In another memorandum to Justice Jackson regarding the same case (Terry), Rehnquist wrote:

Clerks began screaming as soon as they saw this that 'Now we can show those damn southerners, etc' ... I take a dim view of this pathological search for discrimination ... and as a result I now have something of a mental block against the case.

Nevertheless, Rehnquist recommended to Justice Jackson that the Supreme Court should agree to hear the Terry case.

After leaving Jackson's employ, Rehnquist wrote an article in the December 13, 1957 U.S. News & World Report arguing that justices' votes are influenced by their law clerks' ideologies. An empirical assessment conducted by Peppers and Zorn in 2008 supported Rehnquist's view.