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The Brennan Memos:

All three parts of Jim Newton's series on Justice William Brennan's memos are now available on Slate:

  • Part One: Brennan on Burger (and the death penalty);

  • Part Two: Brennan on Abortion (and U.S. v. Nixon);

  • Part Three: Brennan Dishes on His Colleagues (and on Warren's legacy).

Rick Hasen has some comments on part three, and some of the memos' distrubing disclosures, here.

Related Posts (on one page):

  1. The Brennan Memos:
  2. The Brennan Memo Mystery:
Anderson (mail) (www):
"Wetbacks." Nice. Doubtless it was Rehnquist's medication talking, or so we will hear.
1.11.2007 5:12pm
Redman:
Regardless of what you think of the merits of his opinions, its hard to deny that Brennan comes across as tactless and petty. "Small man syndrome" I suppose.
1.11.2007 6:00pm
Jacob (mail):
I don't know, Redman. The narrative of the three articles and accompanying memos is that Brennan was very much lobbying for votes amongst the Justices. This requires, among other things, a great deal of tact. In fact, it's likely tact which causes him to speak of his brethren only in memos sent to a select few. And if one takes his descriptions of his colleagues' behavior as true, they're the ones who come off as petty.

I would think that playing close to the vest and then venting (bitching?) in a few memos is behavior that can be described by several other negative adjectives...but not "tactless" or "petty."
1.11.2007 6:39pm
Anderson (mail) (www):
May we suppose it's not a coincidence that these memos are released after Rehnquist's death?
1.11.2007 6:47pm
blackdoggerel (mail):
The "wetbacks" comment is overblown. It was 1978. You can't tell me that most of the country at that time would have considered "wetback" a grossly pejorative term. Sure, most people would have thought it wasn't a nice word, but to assign it the level of ignominy it would receive now is really stretching it. Even now, and certainly more back then, few would think it's on the level of "nigger," which had been a grossly pejorative word in the context of the Civil Rights movement of the previous twenty-five years.

Does a Supreme Court Justice have a heightened duty to refrain from using the word, solely because of his position? Maybe so, but I think the argument is much stronger when a Justice is speaking as a public figure, as one in whom the public trust is placed. During conference -- which are supposed to be private -- the Justices are speaking as ordinary individuals, to each other. And, at the time, I think ordinary individuals simply didn't view the term "wetback" as really all that pejorative (as illustrated by Rehnquist's response, that it wasn't really an epithet in his part of the country).

I think it was inappropriate for the author of the piece here to slip in the adverb "shockingly" to describe Rehnquist's comment. Shocking today, likely. Shocking back then? Not very likely at all.
1.11.2007 7:02pm
Anderson (mail) (www):
Shocking to Brennan &Marshall, apparently.
1.11.2007 8:43pm
Paxti:
Oh man, I hate the word "Wetback." I live out west in a rural area, and not only is the term in widespread use with the public, we have attorneys in the office who still use it. I finally had to tell one to cool it after he kept it using it in front of one of our Hispanic attorneys.

I don't blame Marshall for being angry. It's obviously derogatory. Can't we expect a member of the US supreme court to comport themselves in a manner befitting the office? I doubt Former Klan member Hugo Black went around using the term "nigger" in his coversations with his colleagues.
1.11.2007 9:15pm
El Gabo Gringo (www):
Wetback is a bit vernacular, probably along the lines of "redneck" or "hick." Mexicans use the spanish equivalent of "mojado." (literally "wet.") Not something I'd use at a business meeting with a customer, but around a small group of people who I have work with every day? I don't see the problem.

The fact that Marshall would take offense and then play the race card seems a bit dramatic. The fact that Rhenquist justifies it's use by saying the term "still carried currency" is odd as well since there was a much easier defense: Wetback isn't racist. It refers to people who cross the Mexican border illegally and implies nothing else. The fact that some people don't like it and say it's racist doesn't make it so.

Now saying something like "All hispanics are wetbacks" is racist in the same way as "All black men are criminals" is racist, but that doesn't make "criminal" an epithet.
1.11.2007 11:07pm
Colin (mail):
Wetback isn't racist. It refers to people who cross the Mexican border illegally and implies nothing else.

That's one of the most ridiculous things I've read all day long. How is a slur that's uniquely applied to hispanic people not "racist?" A Chinese illegal immigrant who entered the States across the Mexican border wouldn't be called a "wetback." Nor is the word only used for illegal immigrants, although that's the more common application.

In any event, it is a nasty slur and utterly inappropriate in a professional environment. Rehnquist's idea that the word still had "currency" in some parts of the country is meaningless, because it certainly shouldn't have currency in judicial chambers. And what if is used commonly in some communities? That doesn't make it respectful, dignified, or appropriate. Entirely aside from common courtesy, professionalism, and manners, Rehnquist was a judge. He owed the parties in a case that he was adjudicating a measure of respect. Calling them "wetbacks" was disgraceful.

I don't know that the incident says all that much about him, all things considered. It was one incident and we only have the one account. But what the incident does say about Rehnquist is not pleasant or easily excuseable, no matter how far you're willing to bend.
1.12.2007 12:00am
Visitor Again:
I was born in 1943 and have been in California from 1957 to the present. I can assure you "wetback" was regarded as offensive during the 1970s. It did have some currency, though, among bigots.
1.12.2007 1:56am
eric (mail):
That's one of the most ridiculous things I've read all day long. How is a slur that's uniquely applied to hispanic people not "racist?"

So the word "redneck" is racist? I have never seen the word used towards anyone other than white people. The definition of wetback excludes almost everyone except Mexicans because it refers to one who crosses the the border illegally. In the same way, the word redneck refers the a group of people that is overwhelmingly white. If Marshall used the word "redneck" would that be racist?

A Chinese illegal immigrant who entered the States across the Mexican border wouldn't be called a "wetback."

I would call a Chinese illegal immigrant who entered the States across the Mexican border a statistical anomaly.

I have a suspicion that your opinion of Rehnquist is informed more by his jurisprudence than anything else.
1.12.2007 2:04am
Colin (mail):
The definition of wetback excludes almost everyone except Mexicans because it refers to one who crosses the the border illegally.

It is absolutely, and very obviously, untrue that "almost everyone" who crosses the border illegally are Mexican. People from all Latin and South American countries cross the Mexico-US border, as do people from all sorts of overseas countries.

I would call a Chinese illegal immigrant who entered the States across the Mexican border a statistical anomaly.

It took me less than ten seconds with Google to find the Federal Research Division's "Organized Crime and Terrorist Activity in Mexico, 1999-2002" report, which contains a section that begins, "Chinese alien smuggling organizations based in Fujian province work closely with Mexican alien smugglers to transport illegal Chinese migrants into the United States through Mexico." I cannot imagine anyone who thinks the word "wetback" has currency would apply it to emigrees from Fujian.

I have a suspicion that your opinion of Rehnquist is informed more by his jurisprudence than anything else.

My opinion is apparently better informed than yours, given your hollow assumptions. I do not have a poor opinion of Rehnquist's jurisprudence--not that you would know that, as I did not express any opinion of the man's legal reasoning. I only commented on his professionalism, and I would have had much the same comment had he used any other derogatory slur to refer to parties in a case he was adjudicating. I think that "wetback" is a worse slur than "redneck" for several reasons, but I'm disappointed that you seem to feel that it's inappropriate to criticize a sitting justice for throwing ugly epithets in deliberations.
1.12.2007 2:47am
eric (mail):
It is absolutely, and very obviously, untrue that "almost everyone" who crosses the border illegally are Mexican. People from all Latin and South American countries cross the Mexico-US border, as do people from all sorts of overseas countries.

What percentage of people from other countries crossed that border illegally before 1978?

It took me less than ten seconds with Google to find the Federal Research Division's "Organized Crime and Terrorist Activity in Mexico, 1999-2002" report, which contains a section that begins, "Chinese alien smuggling organizations based in Fujian province work closely with Mexican alien smugglers to transport illegal Chinese migrants into the United States through Mexico." I cannot imagine anyone who thinks the word "wetback" has currency would apply it to emigrees from Fujian.

It took you less than ten seconds to find an irrelevant crime report referring to somewhat current crime trend to justify your position on a comment made over almost 30 years ago. Maybe Chinese illegal immigrant smuggling was rampant in Mexico 30 years ago. I do not know.

My opinion is apparently better informed than yours, given your hollow assumptions. I do not have a poor opinion of Rehnquist's jurisprudence--not that you would know that, as I did not express any opinion of the man's legal reasoning. I only commented on his professionalism, and I would have had much the same comment had he used any other derogatory slur to refer to parties in a case he was adjudicating. I think that "wetback" is a worse slur than "redneck" for several reasons, but I'm disappointed that you seem to feel that it's inappropriate to criticize a sitting justice for throwing ugly epithets in deliberations.

Your opinion about wetback and redneck is just that, your opinion. I specifically said I had a suspicion. Read that again. A suspicion is not an assumption. As for your opinion being better informed than mine, about what? About your own motivations, I would hope so. By the way, Rheinquist is not a "sitting justice." Rheinquist is dead.
1.12.2007 7:50am
El Gabo Gringo (www):
I was born in 1943 and have been in California from 1957 to the present. I can assure you "wetback" was regarded as offensive during the 1970s. It did have some currency, though, among bigots.

I've lived exclusively in border states and am bilingual. I've heard the term on both sides of the border in both languages, usually from Hispanics rather than Caucasians. I agree the term is offensive, but in the way 'illegal alien' is offensive to those who prefer the term 'undocumented immigrant', although to a larger degree.

Is it racist? In the same way that "hick" or "redneck" is racist, which is not at all. It could certainly be used in a racist way (as could almost any word) but it is by no means a racial epithet. Saying it is so, doesn't make it so.

I believe the N word is deeply offensive and racist, so I am very sorry to see Marshall would water down the plight of Black Americans by comparing the N word to 'wetback' only to score points against his judicial rival.
1.12.2007 8:45am
J. F. Thomas (mail):
Wetback isn't racist. It refers to people who cross the Mexican border illegally and implies nothing else.

Oh yeah, and because "nigger" is derived from the Spanish word for "black" and describes a legitimate physical characteristic (after all people's backs got wet crossing the Rio Grande), it's not in the least bit racist.

"Redneck" by the way is a derogatory term, describing ignorant, rural, usually southern, inbred people whose necks are red from have a job that involves working outdoors (the kind you see on the Jerry Springer show). Now, comedians like Jeff Foxworthy have "taken it back" to some extent, and much like "nigger" some people will call themselves rednecks. But be very careful about who you call a redneck.
1.12.2007 10:06am
Visitor Again:
Is it racist? In the same way that "hick" or "redneck" is racist, which is not at all. It could certainly be used in a racist way (as could almost any word) but it is by no means a racial epithet. Saying it is so, doesn't make it so.

Saying it isn't so, doesn't make it not so, either.

It is racist, and it was regarded as racist in the 1970s. It's a derogatory and offensive term applied to Hispanic immigrants. It is often used even with reference to those who enter the country lawfully.
1.12.2007 10:22am
AntonK (mail):
Well, that does it! He used the word "wetbacks." Inexcusable! Hang him!

Not that I condone that type of language, but if we're going to use such talk as the benchmark by which we judge people, then everyone here better be very, very careful about what they say, and covet closely what they may have said in the past.

Oh, and how about the vaunted Senator Robert Byrd?
1.12.2007 10:25am
Colin (mail):
What percentage of people from other countries crossed that border illegally before 1978?

Significantly, and again very obviously, larger than zero. Do you imagine that around 1980 Guatemalan immigrants, for example, just suddenly discovered that Mexico borders the United States?

It took you less than ten seconds to find an irrelevant crime report referring to somewhat current crime trend to justify your position on a comment made over almost 30 years ago. Maybe Chinese illegal immigrant smuggling was rampant in Mexico 30 years ago. I do not know.

Again, what changed between 1978 and 1998? As far as I know it was still easier to slip into Texas across the Rio Grande than to risk an airport checkpoint. I suppose Rehnquist might have thought, as you do, that only Mexicans cross the Mexican border. But I don't see how that farcical assumption excuses his slur.

By the way, Rheinquist is not a "sitting justice." Rheinquist is dead.

That's the sort of keen observation that leads to you to make silly assumptions about who is crossing the Mexican border. Rehnquist (not "Rheinquist") was a sitting justice at the time he made these comments. If he were retired or (in another court) on senior status (even though that would still be "sitting") or even just not hearing that particular case, I would be less bothered. But it was a case he was deciding, and again, whether or not you think the term is racist, it was incredibly inappropriate for him to scorn appellants seeking his impartial review.

Is it racist? In the same way that "hick" or "redneck" is racist, which is not at all. It could certainly be used in a racist way (as could almost any word) but it is by no means a racial epithet.

Maybe we just have different operating definitions. In my eyes, a slur that's uniquely applied to one race or ethnicity is "racist." Maybe you have more exacting requirements; it doesn't really matter to me. It was a grossly improper thing for a judge to say. I suspect Rehnquist's defenders on this point are more "informed more by his jurisprudence than anything else."
1.12.2007 10:27am
Visitor Again:
Here is one take on the word, which concludes, "As a result, the term "wetback" is a racial slur that is very offensive to the Hispanic community. It is almost as offensive as calling a Hispanic a "spic". Although the word has gained popularity in the United States, it is a word that has a negative connotation for many Hispanics." The online definitions of "wetback" say it is a racial slur. Google the term and you'll find it is so.
1.12.2007 10:32am
Visitor Again:
Sorry, here is the link for the essay I quoted on the history and racist nature of "wetback."
1.12.2007 10:36am
Mark Field (mail):
Like Visitor Again, I've lived in CA since 1957. I've never heard the term "wetback" used in any way OTHER than as a derogatory reference to Latino immigrants.
1.12.2007 11:30am
eric (mail):
Significantly, and again very obviously, larger than zero.

That does not make the term racist. The majority of illegal immigrants (not just those who cross the southern border) are Mexican nationals. It is as simple at that. 56% of illegal aliens are Mexican nationals. 20+% are South American. Latin Americans may use to Mexican Border and smuggling operations exist. We could fight about the definition of "almost all" which is what a originally said, but it is not worth the time. The statistics are fuzzy to begin with. Obviously, a lot of non-Mexican Nationals are visa overstays, etc. Mexico's southern border is difficult to cross.

Again, what changed between 1978 and 1998? As far as I know it was still easier to slip into Texas across the Rio Grande than to risk an airport checkpoint.

The report you referred to does not tell me anything about 1978.That was the point.

I suppose Rehnquist might have thought, as you do, that only Mexicans cross the Mexican border. But I don't see how that farcical assumption excuses his slur.

I do not think that only Mexicans cross the U.S. - Mexico border. That is a farcical assumption, but it is not one that I made.

You used to wording "criticize a sitting justice." The criticism is occurring now. More precisely, you are criticizing a former justice for throwing around ugly epithets in deliberations while he was on the court. That is all semantics.

But it was a case he was deciding, and again, whether or not you think the term is racist, it was incredibly inappropriate for him to scorn appellants seeking his impartial review.

Assuming he meant to scorn them, it is not good judicial temperment. Appellants are scorned all the time, that does not make it right. I will agree to that.

Maybe we just have different operating definitions. In my eyes, a slur that's uniquely applied to one race or ethnicity is "racist."

So "redneck" is racist to you? I think that is a valid position. However, the similarities between the two are very pronounced. It seems inconsistent to say "wetback" is racist and "redneck" is not. I would agree that both have very negative connotations, such that using the words in common venecular is not very becoming.

Maybe you have more exacting requirements; it doesn't really matter to me. It was a grossly improper thing for a judge to say. I suspect Rehnquist's defenders on this point are more "informed more by his jurisprudence than anything else."

I agree it was improper. I think imputing a racist motivation onto Rhenquist is unfair given what we know and the fact that Brennan apparently did not get along with the late chief justice. Rhenquest was apparently a blunt guy, as the link said he once told Marshall to "turn off the tears" over a death penalty case.
1.12.2007 12:55pm
Colin (mail):
So "redneck" is racist to you? I think that is a valid position. However, the similarities between the two are very pronounced. It seems inconsistent to say "wetback" is racist and "redneck" is not. I would agree that both have very negative connotations, such that using the words in common venecular is not very becoming.

In my experience, "redneck" is not used exclusively to refer to white people. Because of the cultural connotations, I have heard "redneck" applied to Hispanic and Africa-American people (in the context of who would listen to a particular country radio station). I doubt that's a common useage, because of course "redneck" implies someone who sunburns red, but it's enough in my mind to make "redneck" a class and culture slur, not a racial slur. If someone applied it exclusively to white people, then yes, it would be a racial slur in that instance.


I agree it was improper. I think imputing a racist motivation onto Rhenquist is unfair given what we know and the fact that Brennan apparently did not get along with the late chief justice. Rhenquest was apparently a blunt guy, as the link said he once told Marshall to "turn off the tears" over a death penalty case.


"Rehnquist." Why does the fact that Brennan and Rehnquist didn't get along make it unfair to analyze the word that Rehnquist used? Unless you doubt the fact that Rehnquist called the litigant "wetbacks" and then tried to justify it, we're not really taking anything on Brennan's word here.

Frankly, I'm sort of done with this argument. It sounds like we agree that Rehnquist said something crass and inappropriate, that it was bad, and that it's not the end of the world. Whether the slur was technically "racist" or not doesn't matter so much.
1.12.2007 1:33pm
Jay Myers:
It seems to me that there is no purpose to this discussion since there is no chance anyone will change their mind as a result. As with Senator Byrd's repeated and unrepentant use of the word 'nigger', those who already approve of Justice Rehnquist will make every effort to overlook and excuse him while those who have less favorable opinions will make every effort to condemn him. I don't consider either approach particularly helpful.

Rehnquist seems to have been a good and honorable man but all men are flawed and must be recognized as a product of their time and culture. He was of the great depression/WWII generation and lived in Phoenix for quite some time. I don't think it would be at all unusual to find someone his age in Phoenix who had used the word wetback to describe an illegal alien in 1978.
1.12.2007 2:30pm
Visitor Again:
Rehnquist seems to have been a good and honorable man but all men are flawed and must be recognized as a product of their time and culture. He was of the great depression/WWII generation and lived in Phoenix for quite some time. I don't think it would be at all unusual to find someone his age in Phoenix who had used the word wetback to describe an illegal alien in 1978.

Particularly not unusual in one who tried to prevent black people from voting in the 1960s and who routinely used racial epithets during his Stanford days. Not unusual, I agree, but a good and honorable man, I'm not so sure about.
1.12.2007 4:40pm
happy lee:
My gosh, a series of revealing essays of how Brennan twisted the court to his ends and most of the comments here are about the use of the term "wetback"? There's a saying that ideas win in the longterm. Brennan had an idea and stuck to it. Virtually everyone else was a kind of ambitious lawtron who made the bench by virtue of political asskissing. As a result, this nation is worse off and millions of unborn died a gruesome death, while plenty a scumbag murderer lived a happy life, to highlight just a touch of the Brennan legacy.

Sadly, Scalia and Thomas are old-fashioned honest men who cannot politic like Brennan. Let's hope Roberts has some juice in him. Then again, hope is for suckers.
1.13.2007 2:29am