The busts of the Chief Justices of the United States stand facing each other two-by-two across the Great Hall of the Supreme Court Building. Hughes and Taft, Vinson and Warren the fifteen statues march slowly to the courtroom doors, marking silently the progression of our nation’s history. There is an empty niche immediately outside the doors of the Great Courtroom. Soon that niche will be filled with a marble depiction of Chief Justice William H. Rehnquist—the last World War II veteran to hold one of the four major offices of the United States and the last direct intellectual descendant of the great judicial restrainists of the early twentieth century—Justices Jackson and Frankfurter.
June 1975. The Supreme Court’s 1974 term, once again dominated by remnants of the Warren Court (justices such as Douglas, Brennan, and Marshall), was marked primarily by the Nixon Tapes Case (foreshadowing and contributing to the final destruction of the Nixon presidency) and additional sociological engineering in scattered abortion decisions. In the petition granted in the Goldfarb Case, the court opened the doors to the tasteless legal advertising that in later years overwhelmed the bar and the nation.
In a small room at the court, a few of Rehnquist’s clerks (there were only a few in those days) gathered with the justice and his beloved wife, Nan, to reprise and remember. Rehnquist had issued, by a wide margin, the greatest number of sole dissents (i.e., the one in an 8 1 vote) in Supreme Court history. Fittingly, the clerks presented him with a Lone Ranger doll, which would remain prominently in his office for the next 30 years. Rehnquist rose and in substance said with a smile:
You know, I don’t mind being outvoted. When the chief or Whizzer [White] are with me and we lose, I realize we just see things differently. But when you are all alone, you have the feeling it’s like the Army again. You are the fellow that just didn’t get the word.
Humility and the absence of guile, self-importance, or self-promotion marked William Rehnquist until his last days. His sole dissents in those days became in a few cases the basis of later majorities. Few, if any, of them would fail today to command the support of a substantial majority of our nation. And it is certain that the ideas he espoused will still survive when the names of today’s justices and government leaders are long forgotten.
June 1987. The Supreme Court term had been marked by the beginning of the acrimonious judicial nomination warfare in the Senate, which continues to this day. The left wing of the Democratic Party, joined by their allies in the "Mainstream Media," were utterly determined not to lose control of their last instrument of power in the United States—the United States Supreme Court. During the Court’s term, they mounted a vicious but unsuccessful attack on the confirmation of Rehnquist as chief justice, utilizing accusations by an incompetent ex brother-in-law and similar tactics. They followed this with a shameful attack on Robert Bork—a highly respected and seminal figure in American law. These tactics would later hit bottom with spurious assault on the character of nominee Clarence Thomas. The reunion of the Rehnquist clerks this year in the East Hall of the Supreme Court had many more attendees, reflecting the year-by-year growth of Rehnquist alumni.
To his clerks and friends, the most interesting story of the nomination battle occurred not on the Senate floor, but right at the Rehnquist house in McLean. Each morning dressed in a dark suit and dress shoes at the insistence of wife Nan, Rehnquist would step through the many cameramen into the new family car. Films of him driving off appeared nightly on the news. He would drive around the block and wait for the horde of cameramen to dissipate. He would return home, put on his Hushpuppies, climb into his old car, and go to work just like the regular American he always was and loved being.
Some of the Chief Justice’s clerks at the reunion marked his accession by presenting him a feathered Indian Chief Warbonnet. He wore it only briefly, saying that some of his colleagues would not understand (but he kept it until his last days).
Rehnquist delivered a short talk at the reunion in which he noted that Justice O’Connor maintained in her office a collage of news stories about her confirmation (e.g., "First Woman Supreme Court Justice Confirmed"). He said that he thought about doing that but rejected the idea given some of the headlines he would have to frame (such as, "Ex Brother-In-Law Challenges Rehnquist," etc.).
As a law clerk on the United States Supreme Court to Robert Jackson, Rehnquist was not only Jackson’s intellectual heir but a witness—to the truly horrible relations among justices in the late 1940s and early 1950s. The period was marked by a succession of incidents such as a rumored fight between Justices Black and Jackson during consideration of the so-called Portal to Portal cases. Rehnquist, who loved and remembered history, was determined to maintain the dignity of the Court as well as friendship with all of his colleagues. His effort to do so drained some of the bitterness evident in the "perfect storm" of Gore v. Bush and in the Clinton impeachment and acquittal.
June 2005. A room with nearly a hundred former clerks marked this final reunion, rich with remembrance but also with sadness. Chief Justice Rehnquist, obviously gravely ill and failing in the last period of his life, bravely walked in and up to a podium. In a hushed voice, he said in substance:
Forgive me. My voice is not very good nor is it strong enough to welcome you each as in past years. But I treasure each of you and the wonderful letters and notes you have sent.
Beyond his clerks, the nation was a witness to his courage during his final term when he walked from a wheelchair to swear in President Bush on a terribly cold January day. In a town full of fake, self-proclaimed heroes who often recycle meaningless honors among themselves, Rehnquist was a true hero whose personal courage and determination were apparent to the entire nation.
Background. Rehnquist’s judicial life was certainly shaped by a strong Midwestern family in his early years and later by his wonderful wife Nan and three extraordinary children. But the most profound influence upon Bill Rehnquist’s legal opinions was clearly Justice Robert Jackson, for whom he clerked at the Supreme Court 50 years ago. Jackson, a small-town New York lawyer, was the U.S. attorney general under FDR and the chief U.S. prosecutor at Nuremberg. To Bill Rehnquist, Robert Jackson was a hero.
Jackson and his cohort Felix Frankfurter were liberal Democrats who were ironically judicial restrainists. They knew the history of the activist Taney Court whose Dred Scott decision was a major contributing cause to the Civil War. They knew that the outrageous abandonment by an inventive court of the text of the 14th Amendment in Plessey and the novel judicial invention of "separate but equal" led to generations of judicially-sanctioned state racial segregation. They themselves were appointed by FDR to displace an activist court led by the "Four Horsemen" who used unbridled judicial power in cases such as Carter Coal to attempt the destruction of the New Deal to impose 19th Century laissez-faire as another unwritten constitutional requirement. They profoundly believed in judicial deference to the legislature, in "the Federal Experiment" in which the state government’s success or failure acted as a laboratory for the nation, and in separation of powers among the three branches of the federal government. Their views placed them at war with the legal "realists," such as William Douglas and Earl Warren. (Ironically, it was Jackson and Frankfurter who actually stood up for constitutional rights when they were most seriously threatened in the World War II Japanese-American concentration camp cases in which "civil libertarians" such as Douglas voted to uphold the camps supported and demanded by Warren.
It was a war that the Restrainists lost when early death (shortly after Rehnquist’s clerkship) stilled first the voice of Jackson and then that of Frankfurter, while their opponents lived much longer lives. Unfortunate appointments by both parties by the mid-1960s led to an activist majority so dominant that often only the aging voice of Justice Harlan remained in dissent. The carnage caused by the Warren Court’s attack upon the culture and institutions of our nation remains with us today in areas as widely diverse as failing schools unable to teach moral or cultural values, a criminal system unpredictable in the ability to find truth and administer justice, and masses of untreated homeless slowly dying on our streets (since mental illness and vagrancy are now constitutional "life choices"). While Jackson and Frankfurter died, their ideas did not, and it is as the heir of their tradition that Rehnquist will always be remembered. Boiled down, Rehnquist’s philosophy was:
- Deference to the federal system, to co equal branches of government, and to separation of powers.
- With respect to the Constitution and statutes, that the text and original intent are controlling.
- With respect to the criminal process, that its aim should always be the practical adjudication of truth in a process not weighed down by "safeguards" that make the system’s ability to deliver justice unreliable, and
That the civil litigation process should be limited to the adjudication of real disputes for the benefit of the litigants and should not be a process designed for the enrichment of lawyers or the creation of social policy.
The clash between these ideas and judicial realism (i.e., a belief that the social result achieved should control the decision) has remained the central battleground of the Supreme Court for more than 75 years. The clash is not only among justices such as Scalia on one side and Souter on the other, but takes place even inside the hearts of "swing" justices such as O’Connor and Kennedy.
Legacy. Rehnquist does not leave the legacy of Earl Warren, a platoon leader marching a unified court in perfect step from one vast expansion of judicial power to another—all to the music of approval from the Mainstream Media and left-wing law school journals and professors. That is neither a legacy that Rehnquist would have wanted nor music to which he marched.
Indeed, Rehnquist delighted in anonymity. A weekly poker game and a group that predicted the first snow fall of the year were more attractive to Rehnquist than a party at the Washington Post or an embassy. He often remarked that he loved having a job where people would stop him during his walks around the court building, asking him to photograph them, since they had absolutely no idea who he was. During one of his last reunions at the court when he and his former clerks gathered for the annual croquet match on the court lawn (a tradition for 30 years), Rehnquist and the participants were lectured by an unknowing woman passing by about their unauthorized use of government property.
In Iolanthe, the great operetta by Gilbert and Sullivan, the Lord High Chancellor is a satirized judge blinded to some degree by his own self-importance. Rehnquist loved Iolanthe, even quoting it on occasion in his opinions as a caution against judicial pomposity and arrogant usurpation of power. Ironically, he drew from the costume of the Lord High Chancellor in a production of Iolanthe the four gold stripes that he alone wore on the sleeves of his black robe after he became chief justice. I believe he did so, in part, as a visual reminder to avoid the pomposity, arrogance, certainty, and self-importance that marked the Lord High Chancellor and which has also on occasion marked our courts as they have seized power and decision-making never imagined by our founders or by any free people.
In short, Rehnquist was a rare man, peculiarly deaf to the music and temptations of Washington popularity or power. Instead, he fought for older and more enduring values, scored in a different way by a different scorekeeper than the illusion of producing "good" by a naked grab of judicial power suitably praised in the New York Times and on CBS News.
While there was a time when his ideals (and those of Jackson and Frankfurter) came close to majority status (and achieved it in some areas), appointment of the "Stealth Justice" Souter effectively delivered control of the Supreme Court in critical cases to swing justices or, in the last three terms, largely to the activist wing of the court. Thus, the criminal law has been battered by the court’s rejection of sentencing guidelines (which it participated in drawing up), as well as by recent bizarre capital punishment decisions. A new judicial social experiment is in progress in the area of gay rights and marriage. Religion remains under wholesale judicial attack. The Court is probably today further removed from the beliefs, values, and ideals of most Americans than at any time since the late Warren Court.
The Chief Justice was often of late relegated in key cases to a three-justice minority with Justices Scalia and Thomas, who largely share his ideals. This minority, while often outvoted, was virtually never out-reasoned or out-written. Typically, the majority in such cases were literally votes for a result adrift in search of a reason, often ranging from "a consensus of international law" to simply feel-good thoughts. In contrast, the dissents of the Rehnquist-Scalia-Thomas minority invariably bedrocked on those same principles found in the long-ago opinions of Jackson and Frankfurter.
It is, therefore, in the end not his judicial victories that mark the legacy of Chief Justice William Rehnquist’s 34 years on the court. His legacy lies in three different things. First, Rehnquist kept alive, preserved and protected, refined, and passed along to many others the nation’s true judicial heritage a judiciary avoiding the temptation of power by its own restraint and by respect for the nation’s prior law, culture, heritage, and other more democratically selected branches of government. Second, in perilous times for the court, Rehnquist’s basic decency and dignity (what the Romans called dignitas) made more acceptable results such as the Clinton acquittal and the Bush v. Gore result—both deeply resented by many. Finally, our soil still spawns genuine heroes—not afraid to dissent alone for a principle, to climb out of a wheelchair not long from death’s call on a freezing day to perform the rite of continuation of government, and to stand alone against a mob of press ridicule, law school criticism, and Washington cocktail party disapproval for the bedrock values of our nation.