Juliana Peluso, JD Anticipated May 2024, Law & Public Policy Scholar
In 1952, former Supreme Court Chief Justice William H. Rehnquist—then a law clerk to Justice Robert H. Jackson—prepared a memorandum titled “A Random Thought on the Segregation Cases” in anticipation of the Court’s deliberation on school segregation in Brown v. Board of Education. In it, then-clerk Rehnquist rejected the federal judiciary’s involvement in “emotionally charged subject matter,” particularly with regard to issues entailing “relations between the individual and the state.”
Segregation, Rehnquist suggested, “quite clearly is not one of those extreme cases which commands intervention from one of any conviction.” This stance led the future Chief Justice to the self-assessed “unpopular and unhumanitarian position” that “Plessy v. Ferguson was right and should be reaffirmed.” The memo was ultimately for naught (save two “rocky” Supreme Court confirmation hearings several decades later)—a unanimous Court in Brown instead rejected Plessy, finding school segregation to be in violation of the Equal Protection Clause of the 14th Amendment, and put an end to “separate but equal” public school education “with all deliberate speed.”
The Chief Justice’s assertion that the Supreme Court is not vested with the power to address “emotionally charged” disputes relating to individual rights would not have been a viable path forward at the critical juncture in U.S. history represented by Brown. The Court’s choice to remove states’ individual autonomy to determine whether and how to end school segregation was proven to be wholly necessary to the pursuit of racial equity by the massive, violent resistance that followed its decision. The Court’s 1938 opinion in U.S. v. Carolene Products Co. created a blueprint for when it may embrace an “activist” role as a counter-majoritarian force protective of the rights of discrete and insular minorities, as it did in Brown. However, the Supreme Court will soon address and likely end or limit race-conscious college admission policies in Students For Fair Admissions v. University of North Carolina. Such a holding would lend credence to the former Chief Justice’s ideas about the transient nature of decisions relating to individual rights—although this should not translate to a hands-off approach by the Court.
If Not Brown, Then Just a Matter of Time: The Inevitability of Limited State Autonomy
In his memorandum, Rehnquist nodded approvingly at the Court’s “role as arbiter” in “questions of inter-state or state-federal relations . . . [that] determine the skeletal relations of the governments to each other.” This role he explicitly contrasted with “relations between the individual and the state”—namely, civil rights, which he believed to be outside of the Supreme Court’s purview. Yet segregation was one such question of state-federal relations. The echoes of chattel slavery in the South, unrepentantly manifested in a campaign of terror launched against Black Americans along with overt disenfranchisement and de jure apartheid, would present a conflict between those states and the Federal government that was precisely the Supreme Court’s role to resolve no matter how it arose, even per Chief Justice Rehnquist’s own rules.
It was inevitable that segregation would one day be addressed, and that when it was, southern states would push back violently against measures to end it. Southern states immediately responded to Brown with the Southern Manifesto, which declared the Court’s decision to be a violation of states’ fundamental right to autonomy within their borders and urged southerners to “exhaust all ‘lawful means’ to resist the ‘chaos and confusion,’ of desegregation.” The massive resistance to desegregation from southern states that followed Brown included “The Stand in the Schoolhouse Door” at the University of Alabama, the “Little Rock Nine” in 1957, and the ‘Ole Miss Riot of 1962, along with related political assassinations and acts of terrorism grounded in racial animus. In Little Rock and at ‘Ole Miss, the Governor of each state enlisted the National Guard or state troopers to prevent Black students from registering or attending otherwise all-white schools, forcing federal intervention and leading to significant death and injury.
An optimist might hope that Chief Justice Rehnquist only rejected engagement by the Supreme Court in favor of legislatively enacted measures to end “separate but equal.” Ending segregation with all the legitimacy and force of a democratically elected body, rather than the more tenuous finding of an unelected judiciary, may have seemed to offer a more enduring solution. But this reasoning makes no appearance in his memorandum and seems not to comport with the contents of the document overall, which address segregation somewhat glibly. Meanwhile, the Southern Manifesto—signed by 19 Senators—and southern states’ violent resistance to school desegregation after Brown suggest that even if such a measure could pass Congress, the result would have been the same: staunch southern state refusal to accept a federal mandate to enact racial equality, no matter the origin. If not Brown, it was simply a matter of time before an occasion arose that would test the limits of southern state autonomy in relation to the guarantees of the Constitution, causing a constitutional crisis. And when it did, the Supreme Court—as “arbiter. . . in questions of [] state-federal relations”—would be charged with its resolution one way or the other.
Rehnquist’s memorandum arguably failed to comprehend the gravity of segregation—not just morally, but insofar as it did not consider that the fight for equal rights would inevitably require the Supreme Court to arbitrate between the Federal government and noncompliant southern states. His proposal that the Supreme Court remain neutral and states’ rights be respected with fundamental individual rights at stake, was not just “unhumanitarian,” but untenable.
The Supreme Court’s Institutional Role in Light of Carolene Products
While Chief Justice Rehnquist’s memorandum strongly encouraged a severely limited, backseat role for the Supreme Court in relation to individual rights or other “emotionally charged subject matter,” the Brown Court instead elected to accept its position as arbiter. Its decision to do so was appropriate and justified by the recent precedent of Carolene Products. The notion of a reserved judiciary as pushed by Rehnquist remains just that: one possible interpretation of the structure of our government, not a mandate.
In footnote four of Carolene Products, a case decided before Brown, the Supreme Court effectively announced its intention and ability to take an activist role whenever a given case involves deprivation of a fundamental right or tyranny of a majority over a “discrete and insular minority,” described in part as “ particular religious . . . or national . . . or racial minorities.” In so doing, it emphasized the Court’s unique counter-majoritarian position, stating that where prejudice against these groups “tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect [them],” the issue “may call for a correspondingly more searching judicial inquiry.”
Carolene Products is not cited in Brown, but the case and its rationale nonetheless support the Brown Court’s decision to act affirmatively to address and ultimately attempt to end segregation. Segregation targeted Black Americans, a “discrete and insular minority,” who were systematically deprived of “the operation of [] political processes” to assert their right to equal standing in society, including the ability to benefit from the same level of public-school education as white students. Brown focused on how segregation harms Black students psychologically by imprinting the damaging message that they are inferior to white students in order to justify finding that Plessy violated the Equal Protection Clause; it did not discuss deeper causes but made clear that it saw civil rights issues to be precisely within its wheelhouse.
Chief Justice Rehnquist’s memorandum expresses a viable separation of powers, and role of the Court, in the sense that a Supreme Court is not precluded from requiring itself to ignore controversial issues relating to individual rights. But so, too, is the Carolene Products model justifiable—it is not negated by either the Constitution or case law. The Court’s decision to expand its own purview and intertwine itself into the civil rights revolution of the mid-20th century likely accelerated the end of segregation to a dramatic extent, altering the course of history for the better.
A “Transient Majority”? The (Possible) End of Race-Conscious Admissions in SFFA v. N. Carolina University
The end of Chief Justice Rehnquist’s memorandum veers abruptly into the existential: “One hundred and fifty years of attempts on the part of this Court to protect minority rights of any kind,” he writes, “have been sloughed off, and crept silently to rest. If the present Court is unable to profit by this example it must be prepared to see its work fade in time, too, as embodying only the sentiments of a transient majority of nine men.”
Chief Justice Rehnquist would come to find at least one notable exception to his own assertion that the Court can’t expect activism to stick, later stating that the Brown decision itself deserved special respect in part because it “has been repeatedly reaffirmed by a changing group of justices.” However, a pending Supreme Court case, Students for Fair Admissions v. U. North Carolina, may support his thoughts regarding the ephemerality of some of the Court’s decisions.
While Brown is, one hopes, here to stay, Students for Fair Admissions will likely entail a withdrawal fromthe Supreme Court’s recent jurisprudence on race-conscious college admissions in Grutter v. Bollinger, which held that consideration of race as a factor in admissions by a state law school does not violate the Equal Protection Clause of the 14th Amendment because supporting student body diversity constitutes a compelling state interest.
The 5-4 decision in Grutter was tempered somewhat by Justice O’Connor’s assertion that “[T]he Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” Twenty years later, without the end of racially unequal college attendance in sight, a markedly more conservative Court in Students for Fair Admissions seems poised to call in Justice O’Connor’s debt to the future and rule that private and public institutions of higher education may not use race as a factor in admissions.
If the newest “nine men” (now five men, and four women) choose to end twenty years of permissible race-conscious college admissions, they will halt a briefly-held but powerful remedy used to great effect—a discouraging development. But the Supreme Court’s concerns about its legacy, and with “see[ing] its work fade in time,” should not prevent the progressive side of the Court from fulfilling the role outlined in Carolene Products when facing issues of civil rights and liberties. There is always the hope that some of its decisions will be as enduring as Brown.