1. In the run-up to the Supreme Court ObamaCare decision, I was forced to predict that the Court would find for the Act. This was not based on my support for it .far from it but based on the belief that the constitutionality should be determined by political, rather than judicial, efforts. a. Congress submits that it has tested the constitutional basis of a bill when it votes its assent. And the President, the same, when he signs it into law. Therefore, there should be strict adherence to the written Constitution that determines the action of the Court. 2. One of the books Im currently reading is The Partisan: The Life of William Rehnquist, by John Jenkins, and it mentions the infamous memo on the Brown desegregation case. a. In Brown v. Board of Education, the Court overturned Plessy v. Ferguson, which memorialized separate but equal. At that time (1896) the Court opined that, although the 14th amendment meant to enforce the absolute equality of the two races before the law, it couldnt have meant to abolish distinctions based on differences b. All nine Justices agreed on Brown: enforced separation was inherently unequal. c. The following Court, the Warren Court, not only struck down segregation everywhere, it insisted on compulsory desegregation. 3. Under Chief Justice Rehnquist, the court did not see much of a minority-protection role, and the explanation may, in fact, be related to the memo. a. The memo, prepared for Justice Robert H. Jackson, was written in the first person and bore the clerks initials WHR, forWilliam H. Rehnquist. I realize it is an unpopular and unhumanitarian position, for which I have been excoriated by liberal colleagues, Mr. Rehnquist wrote, but I think Plessy v. Ferguson was right and should be reaffirmed. http://www.nytimes.com/2012/03/20/us/new-look-at-an-old-memo-casts-more-doubt-on-rehnquist.html 4. The simplest explanation is to label the Chief Justice a segregationist. But those who have juggled questions of the role of the court, e.g., Lochner v. New York, or the Affordable Care Act, and others, might see more to the question. a. The memo: In these cases now before the Court, the Court is, as [John] Davis suggested, being asked to read its own sociological views into the Constitution. Urging a view palpably at variance with precedent and probably with legislative history, appellants seek to convince the Court of the moral wrongness of the treatment they are receiving. I would suggest that this is a question the Court need never reach; for regardless of the Justices individual views on the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from one of any conviction . I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by liberal colleagyes, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencers Social Statios, it just as surely did not enact Myrddahls American Dilemna. Vintage SCOTUS: William Rehnquists Memo to Justice Jackson Regarding Brown v. Board of Education | DailyWrit 5. The memo goes on: "one hundred and fifty years of attempts on the part of this court to protect minority rights of any kind -- whether those of business, slaveholders, or Jehovah's Witnesses -- have all met the same fate. One by one the cases establishing such rights 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." a. And: "To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are . Did William Rehnquist Embrace PLESSY? b. Rehnquist's memo concluded that the court should uphold segregation and refuse to protect "special claims" merely "because its members individually are 'liberals' and dislike segregation." Ibid. So.....head in the clouds thinking....or a ne plus ultra understanding of the Constitution?