In a Slate article titled “There’s Unsettling New Evidence About William Rehnquist’s Views on Segregation,” law professor Richard Hasen and Slate’s Dahlia Lithwick purport to have uncovered “a newly released court document, not previously reported, [that] lays bare [former Chief Justice William] Rehnquist’s abhorrent true position on segregation as late as 1993.” [Their italics.] They assert:
That year, the then chief justice was still defending the logic of Plessy in no uncertain terms and using his position as a justice to block the court from acknowledging that the 14th Amendment barred segregation. “The Fourteenth Amendment prohibits discrimination; it does not require integration, and I think it is a mistake to intimate that it does even as a ‘goal,’” Rehnquist wrote in a memo to Justice Sandra Day O’Connor as part of an effort to have her remove a passage from an election decision. (For good measure, Rehnquist also requested that O’Connor remove a suggestion that the Civil War was fought in part to secure voting rights for Black people.) [Emphasis in original.]
Their assertion is wildly incompetent and/or malicious.
I cannot fathom how anyone could think that Rehnquist’s statement that “The Fourteenth Amendment prohibits discrimination” can be said to be “defending the logic of Plessy” at all, much less to be doing so “in no uncertain terms.” The majority in Plessy v. Ferguson (1896) infamously ruled that the Fourteenth Amendment allows laws that discriminate on the basis of race—laws, that is “permitting, and even requiring, [the] separation” of “the two races.” Justice Harlan, in his celebrated dissent, declared that “Our constitution is color-blind.” Rehnquist’s statement reflects Harlan’s dissent.
Hasen and Lithwick argue in their piece against the position that the Fourteenth Amendment embeds Harlan’s theory of colorblindness, and they lavishly praise Justice Ketanji Brown Jackson’s jumbled statements/questions at oral argument in a voting-rights case last October. For present purposes, we can pass over the merits, or lack thereof, of their critique. It’s one thing to disagree with the colorblindness position. It’s quite another to conflate it with “the logic of Plessy.” Under the Hasen/Lithwick confusion, there is no difference between the Plessy majority and Harlan’s dissent.
The distinction that Rehnquist drew in his 1993 memo between “prohibit[ing] discrimination” and “requir[ing] integration” is a longstanding one, as anyone familiar with the aftermath of Brown v. Board of Education (1954) would know. In his lead opinion in 2007 in Parents Involved v. Seattle School Dist. No. 1, Chief Justice Roberts observed that the promoters of the interest of “racial integration” in that case “offer no definition of the interest that suggests it differs from racial balance.” What Brown required, the Chief argued, was an end to “separating children on the basis of race.” It “required school districts ‘to achieve a system of determining admission to the public schools on a nonracial basis.’” (Quoting Brown II (Chief’s emphasis).) Imposing “racial integration,” defined as “racial balance,” violated that requirement.
In short, the “unsettling new evidence” that Hasen and Lithwick claim to have found of Chief Justice Rehnquist’s “abhorrent true position on segregation as late as 1993” is exactly the position set forth openly in Chief Justice Roberts’s 2007 opinion. Hasen and Lithwick ought to be able to express their disagreement with the colorblindness position without smearing it as segregationist.
While I’m at it: The parenthetical sentence in the block quote above, with its “For good measure” slam, is really something. Here’s what Rehnquist writes in his memo (quoted later in the article):
First, on page 7 you say that the Civil War was fought in part to secure the elective franchise to black Americans. One can certainly say that the Civil War was fought to end slavery, but I don’t think it is an accurate statement to say that it was fought to secure the elective franchise for blacks. This view gained majority support only during the period of Reconstruction after the Civil War was over.
Rehnquist requested that the assertion (not a “suggestion”) be removed for the good and simple reason that it was not accurate. Hasen and Lithwick show here again that accuracy is not something that they value.
Alas, Slate’s legal writers have repeatedly shown that they won’t acknowledge and correct their errors or retract their misbegotten pieces.