January 11, 2007

Final Slate Article on Brennan Memos Appears; Case Histories Include Those of the Rehnquist Court

As I have noted, so far as I know no one besides Stephen Wermiel had been granted access to Justice Brennan's post-1985 case histories. (Prof. Wermiel was gracious enough to confirm to me that there was nothing of major importance in the 1989 case history about the Austin v. Michigan Chamber of Commerce.) L.A. Times reporter Jim Newton has now also been given access to apparently all of Justice Brennan's case histories. [Update: I understand that Newton did not have access to all the Rehnquist court era case histories.] In the third and final installment in the Slate series on the Brennan memos, "Brennan Dishes on His Colleagues," there are some very interesting tidbits about the relationships among the Justices. On pages 12-18 of these accompanying materials you will find excerpts from case histories as late as 1986. (There's no explanation regarding what was cut from page 17.) There's some pretty explosive stuff in these case histories, especially about the relationship between Justice Marshall and Chief Justice Rehnquist. As Newton explains:

    ...At conference Rehnquist referred to those illegal immigrants, shockingly, as "wetbacks."

    Marshall had heard his share of slurs over the years--much of his career, after all, was in the practice of NAACP law in the Deep South, below what he called the "Smith and Wesson line"" But to hear such an epithet in a conference of the U.S. Supreme Court was more than he could bear. Marshall exploded at Rehnquist, who lamely attempted to defend himself by saying in his part of the country the term wetbacks still had "currency," as Brennan recalled it. Marshall fumed that by the same reasoning, he'd long been called a nigger.

    Even after that, Rehnquist did not let up on Marshall. The following year, Marshall delivered a spirited presentation at the conference in favor of staying an execution so the court could consider the appeal of a black defendant convicted in the murder of a Texas used-car salesman. As Marshall attempted to persuade his colleagues, Rehnquist interrupted him: "You can turn off the tears now." Marshall demanded an apology; Rehnquist refused. The defendant, Charlie Brooks, was executed.

Given this release to Newton and selective release to the public, it is not clear to me if the later case histories will now be made freely available to all researchers and the public. The case histories need to be taken with a grain of salt. They were written by Justice Brennan (and mostly his clerks) and contain Justice Brennan's perspective. Often there is no way to verify the facts contained in the histories, and it is clear that they were being written for people like Jim Newton, and me, hoping to gain insight into the workings of the Court many years after the events in question occurred.

Posted by Rick Hasen at January 11, 2007 11:29 AM