Sleepykid

Justice William Brennan

Slate has an fascinating article on William Brennan’s recently published case memos. A taste:

In the privacy of the justices’ weekly conference, Rehnquist had a tendency to drift beyond pungent. In 1981, the court accepted a case that tested the limits of its commitment to equal protection under the 14th Amendment. The case, Plyler v. Doe, challenged a Texas law barring children of illegal immigrants from attending public schools, enforcing that bar by withholding state funds used to educate any child not “legally admitted” to the United States.

In conference, as the case history notes, the justices squared off to their familiar positions: Brennan believed the Constitution extended equal protection to all people, including children of illegal immigrants. Marshall sided with him. Burger confusingly compared the right to an education with the right to receive welfare (”as if that was the issue,” Brennan’s history of the case notes grumpily), but White joined the chief justice. Blackmun and Powell joined Brennan’s side. The most startling remarks, however, came from Rehnquist. He emphasized that many of the children demanding an education were not 5 or 6 years old but, rather, those who’d come to the country on their own. 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.