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  To my beautiful wife, Maryan, with thanks for keeping me healthy and happy

  The world will little note, nor long remember, what we say here….

  —Abraham Lincoln, Gettysburg, Pennsylvania, November 19, 1863

  Introduction

  Professor Nathaniel Nathanson sitting behind his desk and talking to an unidentified student at Northwestern University School of Law.

  IT WAS IN THE fall of 1945, when I was a member of the entering class of freshmen at the Northwestern University School of Law, that I first met Nathaniel Nathanson, the professor who taught constitutional law. Nat was to have a profound influence on my understanding of the law during the ensuing years. His students sometimes referred to his class as “Nat’s mystery hour” because he seemed to raise an endless number of questions but provided us with few solutions. He thought it more important to teach us how to find answers for ourselves than to indoctrinate us with his own views. A brilliant and lovable man, he inspired the affection and respect of the entire class. We were also impressed by the fact that in 1934 he had served as a law clerk to Justice Louis Brandeis, a jurist who was then—and still is—considered one of America’s greatest judges.

  In later years, events that were then unpredictable gave me a special reason for treating Brandeis as a hero. When Brandeis retired, in 1939, Justice William O. Douglas was selected to fill his vacancy, and after Justice Douglas set the record as the longest-serving justice in history—a record that still stands—he resigned in 1975, and President Ford nominated me to fill his vacancy. I like to think that I inherited not only Brandeis’s seat but also some of his ideas and his respect for the law.

  I well remember Nat’s account of the culmination of his first assignment as a law clerk. Justice Brandeis had directed him to prepare a set of memos and deliver them to his home early in the morning. Instead of ringing the doorbell or knocking, he had been instructed, he should simply slip his work under the front door. He did so, and they were silently withdrawn from within. No conversation was necessary to ensure on-time delivery of future memos.

  As a law clerk in 1934, Nat surely had personal contact with Charles Evans Hughes, then the chief justice, and with Associate Justice Harlan Fiske Stone, who would succeed Hughes as chief in 1941. I never set eyes on either of those chiefs, for I was still a first-year law student on April 22, 1946, when Stone suffered a fatal cerebral hemorrhage in open court.

  President Harry Truman promptly nominated Fred Vinson—who had already served in all three branches of the federal government—to fill the vacancy. Vinson became the thirteenth chief justice of the United States—and the first with whom I would speak—on June 24, 1946. Over the years following my graduation from Northwestern in 1947, I had personal contact not only with Vinson but also with his four successors, Earl Warren, Warren Burger, William Rehnquist, and the Court’s current leader, Chief Justice John Roberts.

  My objective in writing this book is to share memories of these men and their work that may enable readers to receive insights similar to those that Nat conveyed to me six and a half decades ago. I do not intend to provide a comprehensive review of their jurisprudence or tenures. Instead, I hope that my recollections will improve public understanding of their work and the office that they each occupied with honor and varying degrees of expertise.

  The chief justice of the United States has often been described as the “first among equals.” He is “equal” because, like each of his eight colleagues, he has only one vote. It takes a majority of equally powerful votes to support a decision on the merits in any case before the Court. To achieve a desired outcome, the chief justice must convince as many colleagues to join him as must any other justice.

  For that reason, as Byron White—who served as an active justice for thirty-one years—frequently observed, the confirmation of any new justice creates a new Court with significantly different dynamics than its predecessor. One could argue that 2010, when Elena Kagan joined the Court as its 112th justice, marked the inauguration of the Kagan Court rather than the continuation of the Roberts Court. If so, the Court that Lewis Powell and Bill Rehnquist joined in 1972 would be better termed the Powell-Rehnquist Court than the Burger Court.

  But naming conventions are otherwise: Historians treat the story of our nation’s more than one hundred different Courts as though it contained just seventeen chapters, each named after the chief justice whose tenure it tracks. In these memoirs I shall therefore include separate chapters discussing each of the five Courts during which I had some personal contact with the chief justice. Because the entire history of the Court includes only seventeen chapters, I begin with a brief review of the first twelve of those chapters. A full account of the tenure of each of the first twelve individuals who have presided over the Court could fill twelve books, but I will limit myself to a quick glimpse of each. I will then describe the unique duties of the officer whom Congress has described as the “Chief Justice of the United States.” And, having served as the senior associate justice during my last fifteen years on the Court, I shall close with a few comments on the role of the person who might be dubbed the “second among equals.” Because I shall refer to different provisions of the Constitution so frequently, I have included the entire text of that document in an appendix to this volume.

  My reminiscences about Fred Vinson, Earl Warren, Warren Burger, Bill Rehnquist, and John Roberts make up the body of the book. For each of them, my memories primarily reflect a different point of view: that of another justice’s law clerk for Vinson; of a practicing lawyer for Warren; of a circuit judge and junior justice for Burger; of a contemporary colleague for Rehnquist; and of an observer of superb advocacy before Roberts became a colleague. Because of those differing points of view, some autobiographical comments must be tolerated.

  I

  The First Twelve Chiefs

  John Marshall, Chief Justice (1801–1835)

  Bronze statue of Chief Justice John Marshall by William Wetmore Story. The statue depicts Marshall seated in his judicial robe with his right hand outstretched as if he were discussing the document curled up in his left hand.

  ARTICLE III OF THE Constitution provides that the judicial power of the United States shall be vested in one Supreme Court and in such “inferior” courts as Congress shall from time to time ordain and establish. In 1789 Congress enacted the first Judiciary Act, which formally created a Supreme Court, composed of six judges, and a network of inferior courts. George Washington appointed all of the members of the Court who served during his two terms as president. Though the office of the chief justice has come to be perhaps the most exclusive of federal posts—only fourteen have been appointed since Washington left office, while forty-three chief executives have followed his tenure—Washington had the opportunity to appoint this nation’s first three chief justices—John Jay, John Rutledge, and Oliver Ellsworth.

  John Jay, who served from 1789 to 1795, was one of the authors of the Federalist Papers—the pamphlets that advocated ratification of the Constitution when they were written and that still provide guidance to judges interpreting that fundamental document today. Under Jay’s leadership the Court rejected a request made by President Washington that
it provide the executive branch with advisory opinions about the meanings of treaties, the laws of nations, and federal rules of law. In the Court’s view, the Constitution drew lines separating the three departments of government, and that argued against having judges of the national court of last resort give advice to the executive. Jay’s determination that advisory opinions would exceed the limits of the power to decide “cases and controversies” conferred on federal judges by Article III of the Constitution has been steadfastly followed throughout our history.

  The most important case decided during Jay’s tenure as chief was Chisholm v. Georgia (1793). The transaction that gave rise to the litigation occurred during the Revolutionary War: Georgia’s purchase in 1777 of over $169,000 worth of supplies for troops quartered near Savannah. The South Carolina merchant who made the sale died before collecting the purchase price, but his executor—a man named Chisholm—filed suit against the State of Georgia to collect the debt. The question presented to the Supreme Court was whether a federal court had jurisdiction over a suit brought by a South Carolina resident against the sovereign State of Georgia.

  By a vote of four to one, the five sitting justices concluded that the state was subject to suit in a federal forum. Each member of the Court wrote a separate opinion explaining his views. The majority necessarily held that jurisdiction had not only been conferred by Congress in the Judiciary Act but also was consistent with the provision in Article III extending federal judicial power to controversies “between a State and Citizens of another State.” They rejected the argument that the English common-law doctrine of sovereign immunity provided the state with a defense to Chisholm’s claim.

  Justice James Iredell dissented. While he did not question Congress’s power to change the common-law rule that prevented private citizens from suing unconsenting sovereigns, he did not believe that Congress had done so by enacting the Judiciary Act. Chief Justice Jay, however, addressed the more basic question—whether the common-law rule should exist in our newly formed government. In his opinion, he explained that in the democratic United States, there was no place for sovereign immunity. The doctrine was rooted in the feudal idea that the prince is the sovereign and that the people are merely his subjects. But in America, the people are sovereign. Unlike English subjects, “the citizens of America are equal as fellow citizens and as joint tenants in the sovereignty.”

  The Chisholm decision was not welcomed by states saddled with debts and threatened with insolvency. On February 20, 1793, two days after the Court decided the case, Massachusetts congressman Theodore Sedgwick proposed an amendment to the Constitution that would have deprived all federal courts of jurisdiction over any suit in which a state was named as a defendant. Instead of acting on that proposal, critics of Chisholm drafted, and two years later obtained ratification of, the Eleventh Amendment. That amendment eliminated the out-of-state residence of the plaintiff as a basis for federal jurisdiction in an action against a state, but it actually said nothing about the common-law doctrine of sovereign immunity. Nor did its text prohibit (or indeed even mention) suits brought against a state by its own citizens to enforce rights created by federal law. Nevertheless, as I shall explain in my chapter about Chief Justice Rehnquist, in later years it would provide the states with immunities that would have surprised John Jay.

  In 1795, which happened to be the year the Eleventh Amendment was ratified, John Jay resigned his position as chief justice to become governor of New York. President Washington nominated John Rutledge of South Carolina to replace him. While Rutledge had been a respected delegate to the Constitutional Convention in 1787, his career on the federal bench is noteworthy for its brevity.

  In 1789, Rutledge had been one of Washington’s first appointees to the Supreme Court. Although that appointment was confirmed by the Senate—as the Constitution requires for all Article III judges—Rutledge did not decide a case as a federal judge at that time because before he could do so, he chose instead to accept the position of chief justice of the South Carolina Supreme Court. When Jay resigned, in the summer of 1795, Washington named Rutledge to replace him by means of a recess appointment—a temporary appointment during which the appointee may serve in office without Senate approval. An unpopular speech, in which Rutledge criticized a treaty that John Jay had negotiated, plus concerns about his mental health persuaded the Senate to reject his nomination. History treats him as the second chief justice—and his portrait that hangs in the Court today assumes that he is entitled to that designation—but, as I shall explain in my chapter about Earl Warren, I am not persuaded that the president has the authority to confer judicial power on a nominee who has not been confirmed by the Senate. No more need be said about his tenure.

  Oliver Ellsworth of Connecticut then became our third chief justice. He served from 1796 until his resignation took effect, on December 15, 1800. He had previously been both a delegate to the Constitutional Convention, where he made speeches favoring the abolition of slavery, and a United States senator. Perhaps his most notable contribution as chief justice was his initiation of the practice of having one justice write a single opinion explaining the Court’s decision, replacing the custom followed in Chisholm, in which each of the justices expressed his individual views in a separate statement. Ever since, the Court has followed Ellsworth’s practice whenever a majority can agree on the proper disposition of a case.

  In 1775, before the Declaration of Independence was signed, nineteen-year-old John Marshall joined a group of Virginia militiamen that was called into action by Colonel Patrick Henry, commander of Virginia’s provisional army, and engaged in combat with British troops. He served as an officer under George Washington at Valley Forge during the bitter winter of 1777–1778. His martial accomplishments were followed by distinguished work in the private practice of law, as a member of the Virginia convention that voted to ratify the Constitution, as a United States congressman from Virginia, and as a diplomat. While those credentials clearly qualified him to become our fourth chief justice, it was his work once in that office that made him our Court’s greatest leader.

  Appointed by John Adams in 1801, Marshall served until 1835. Decades after Marshall’s death, Oliver Wendell Holmes—another universally lauded jurist and veteran of another foundational American war, that between the states—had this to say about Marshall: “If American law were to be represented by a single figure, skeptic and worshipper alike would agree without dispute that the figure could be one alone, and that one, John Marshall.”

  The quantity of Marshall’s judicial output is impressive: he participated in over one thousand cases and authored more than five hundred Court opinions. But it is the quality of his work that commanded the admiration of his peers and successors. Most famous are his opinions in Marbury v. Madison (1803), McCulloch v. Maryland (1819), and Gibbons v. Ogden (1824).

  Marbury was the first case in which the Court held an act of Congress to be unconstitutional. William Marbury had been named a justice of the peace in the final days of John Adams’s presidency, his appointment had been confirmed by the Senate, and the secretary of state (who, not insignificantly, happened to be John Marshall—a fact that would have disqualified Marshall from participating in the case under today’s recusal standards) had signed his commission—but had not delivered it—before Thomas Jefferson took office as the third president of the United States. When James Madison, the new secretary of state, refused to deliver the commission, Marbury filed a lawsuit in the United States Supreme Court invoking the Court’s original jurisdiction and asking it to issue a writ of mandamus commanding Madison to do so. (Mandamus is an extraordinary writ that judges may use to order a defendant to perform a clear public duty when no other remedy is available.)

  More than a year elapsed before Chief Justice Marshall announced his opinion for a unanimous Court. He concluded that Marbury had a right to receive his commission, and that the Judiciary Act enacted by Congress intended to give the Supreme Court the authority to issue a w
rit of mandamus commanding Madison to deliver it. But then, in what might be described as a surprise ending, he concluded that the statute authorizing the Court to issue the writ was unconstitutional. The case is famous primarily for establishing the Court’s authority to declare an act of Congress unconstitutional. For me, the case has always been puzzling because I have never found satisfying Marshall’s explication of why the statute was unconstitutional.

  He quite correctly identified a distinction of constitutional magnitude between cases, like Marbury’s, that invoke the Court’s original jurisdiction—that is, its jurisdiction to hear cases filed for the first time in the Supreme Court—and those invoking its appellate jurisdiction to review cases that had first been filed in a lower court. Unless Marbury’s suit properly invoked the Court’s original jurisdiction, the Court could not provide him with a remedy. While Article III of the Constitution authorizes original Supreme Court jurisdiction over any action against “public Ministers,” Marshall might reasonably have construed that phrase to refer only to foreign ministers and not to the American secretary of state. But instead of holding that the Court could not grant relief against Madison for that reason, Marshall stated that the Court could not issue a mandamus in Marbury’s case unless doing so could be characterized as an exercise of the Court’s appellate jurisdiction.

  I have never understood why that premise led him to the conclusion that the statute that Congress had enacted was unconstitutional. Why would the statute not have been perfectly valid in cases in which the Court properly had original jurisdiction, such as a suit by a foreign ambassador seeking relief against the secretary of state? I suppose I should have figured out the answer to this puzzlement during my many sessions in Nat’s mystery hour.