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Abstract:
The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Brown and Rosenberg demonstrate the Court's different approaches toward taking "great cases." The Brown Court is often criticized for having done too much; the Rosenberg Court is criticized for not having done enough. Rosenberg divided the country and divided the Court, which repeatedly refused to take the case. Instead, Justice Douglas granted a last-minute stay of execution about whether they had been tried under the wrong federal statute. The Court quickly vacated the stay, and the Rosenbergs were executed the next day. Rosenberg was a Bush v. Gore moment that alienated people who held the Court in high institutional regard. Based on newly discovered documents and interviews with key participants, this Article explains why the Court refused to grant certiorari in the one of the most famous spy cases in American history. It reorients legal scholarship about the case away from Douglas's stay and toward contemporaneous allegations of prosecutorial misconduct and perjury. And it argues that just because some great cases might make bad law does not mean the Court should refuse to take them. It explains the taking great cases theory, applies it to Rosenberg and Bush v. Gore, and contends that, especially in cases about separation of powers and minority rights, the Court should err on the side of granting certiorari in cases of great public interest.

great cases, Julius and Ethel Rosenberg, certiorari, Brown v. Board of Education, Bush v. Gore, espionage, prosecutorial misconduct, perjury, Atomic Energy Act, Justice Black, Justice Douglas, Justice Jackson, Justice Frankfurter, Justice Burton

Abstract:
As a law clerk to Justice Robert H. Jackson in December 1952, William Rehnquist wrote a memo during the oral arguments in Brown defending Plessy v. Ferguson. Rehnquist's memo is more than just a relic from a time when reasonable people could disagree about the validity of Brown. It makes a popular argument against the Court's school desegregation decisions both before and after Brown, an argument that permeated Rehnquist's own jurisprudence, and an argument often associated with Justice Oliver Wendell Holmes deference to majority rule. During the last four decades, conservatives have mostly abandoned Holmesian deference to majority rule as an argument against school desegregation. Liberals, however, have embraced this argument in support of affirmative action and other programs designed to promote racial and ethnic diversity. This role reversal was particularly evident in the dueling opinions of Chief Justice John Roberts and Justice Stephen Breyer in Parents Involved. The majoritarian argument in Rehnquist's Plessy memo is worth revisiting because it continues to factor into the modern debate about the interpretation and implications of Brown.

Rehnquist, Holmes, Plessy v. Ferguson, Brown v. Board of Education, Parents Involved in Community Schools, deference, majoritarian, majority rule, school desegregation, affirmative action

Abstract:
Brown v. Board of Education is the sacred cow of American constitutional law. This Article explores how Brown achieved its most-favored-opinion status. Although recent scholarship about the constitutional canon suggests that the reverence for Brown is a product of the moral force of Civil Rights Movement and the efforts of liberal academics intent on preserving the Warren Court's legacy, this Article contends that Brown's exalted place in the constitutional canon was ultimately the work of conservatives. This Article advances recent canonization scholarship in three principal ways: First, it bifurcates the constitutional canon into an upper and lower canon. Second, it argues that conservatives are chiefly responsible for moving Brown into the upper canon. Third, it chronicles Brown's canonization by employing a novel methodological device - Supreme Court confirmation hearings. The hearings of post-1954 nominees suggest that conservative affirmed Brown's validity in order to get confirmed, and as Justices, they subsequently narrowed Brown's interpretation. Chief Justice William Rehnquist's 1971 and 1986 confirmation hearings began this pattern. The controversy over a memo endorsing Plessy v. Ferguson that Rehnquist wrote as a law clerk to Justice Jackson unwittingly cast Rehnquist in a leading role among conservatives in securing Brown's hallowed place in the constitutional canon.

Brown v. Board of Education, constitution, constitutional law, Rehnquist, civil rights, confirmation hearings