What Would Justice Holmes Do (WWJHD)?: Rehnquist's Plessy Memo, Majoritarianism, and Parents Involved

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.

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

JEL Classifications: J7

Accepted Paper Series