Segregationists in the Supreme Court

By | June 1, 2023

Richard L. Hasen and Dahlia Lithwick write:

It was impossible to listen to oral arguments this past Supreme Court term without being struck by the way this court’s conservative supermajority views the 14th Amendment. According to these justices, the key Reconstruction-era amendment was intended merely to promote a theory of “color blindness”—in which race is simply ignored—not to actively lift Black people from a previously subjugated status following the end of slavery. Indeed, the newest justice, Ketanji Brown Jackson, made headlines at one of her first oral arguments, when she took pains to debunk this historically dubious theory.

In that voting rights case, Allen v. Milligan, the first Black woman to hold a seat on the Supreme Court explained that the drafters of the amendment intended that its vision be applied “in a race-conscious way” so that freed former slaves “were actually brought equal to everyone else in the society.” She went on to urge “that’s not a race-neutral or race-blind idea.”

Unfortunately, Justice Jackson will likely be raising these points again—this time in dissent—as the Supreme Court is poised to end the term by using the “color blind” formulation to gut affirmative action in higher educationweaken or decimate a key part of the Voting Rights Act, and erode longstanding tribal protections for Native American families and their children. When the court does so, it will be another belated victory for William H. Rehnquist.

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. [Continue reading…]

In 1986, the Associated Press reported:

A former federal prosecutor said today he saw William H. Rehnquist take part in a Republican campaign that ″was designed to reduce the number of black and Hispanic voters by confrontation and intimidation″ in Phoenix, Ariz., in 1962.

The testimony by James J. Brosnahan came after Democrats on the Senate Judiciary Committee, conducting confirmation hearings on the man nominated to be the nation’s 16th chief justice, were denied access by President Reagan to memos Rehnquist wrote as an assistant attorney general more than 15 years ago.

The committee chairman, Sen. Strom Thurmond, R-S.C., gaveled down a request by Sen. Edward Kennedy, D-Mass., to consider issuing a subpoena for the memos.

Brosnahan, who was assistant U.S. attorney in Phoenix in the early 1960s, specifically contradicted Rehnquist’s Senate testimony in 1971 that he never challenged the qualifications of any voters in Phoenix and was merely trying to arbitrate disputes at polling places.

″This does not comport with my recollection of the events I witnessed in 1962 when Mr. Rehnquist did serve as a challenger,″ Brosnahan, a lawyer from San Francisco, told the committee in a prepared statement.

Brosnahan, summoned to testify today by Senate foes of Rehnquist’s nomination, said he saw Rehnquist at a polling place in a predominantly black and Hispanic precinct in south Phoenix during the November 1962 elections.

″Because the challenges were so numerous, the line of voters in several precincts grew long, and some black and Hispanic voters were discouraged from joining or staying in the voters’ line,″ he said.

″It was my opinion in 1962 that the challenging effort was designed to reduce the number of black and Hispanic voters by confrontation and intimidation,″ he said, and that Rehnquist was actively involved in the campaign. [Continue reading…]

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