Five Chiefs Read online

  Warren Burger took a different view. He suggested that a new justice needed at least two years to become comfortable in dealing with the awesome responsibilities that membership on the Court entailed. Moreover, he argued, it was not accurate to use the word we to describe a group of judges that did not include the author. There is no doubt some merit to the view he expressed. I do not share it because I remain persuaded that the most junior justice is just as much an equal of the chief as their seven other colleagues.

  Another expression of that equality is on the matter of disagreements. As far as I know, all the justices with whom I served agreed that each of us had an equal right to disagree publicly. The junior justice has the same right to announce a dissent in an oral statement in open court as does any other justice, including the chief. In a conversation shortly after I joined the Court, Potter Stewart told me that John Harlan had more than once expressed the view that in every term, at least one dissenter should announce his opinion from the bench. He thought that such announcements revealed qualities of some of our disagreements that could not be adequately expressed in writing. I have repeated that conversation to most, if not all, of my newer colleagues, and the custom has been preserved.

  In some instances, the cases that the Court decided touched upon and even transformed the procedures through which the Court conducted its business. A small example of this phenomenon was United States v. Grace, a 1983 case in which we upheld the constitutionality of the statute that prohibits certain public demonstrations in the Supreme Court Building and on its grounds except insofar as it included the surrounding sidewalks. Supreme Court police officers responsible for enforcing the statute have long encountered a myriad variety of protesters. For instance, Mary Grace, one of the plaintiffs in the case, carried a four-by-two-and-a-half-foot sign on which the text of the First Amendment was written. On another occasion, a protester wore a large wooden sandwich board on which random spatterings of illegible hieroglyphics were inscribed. When the officer asked him what they meant, the demonstrator firmly responded, “That’s a secret.”

  When Mary Grace filed her lawsuit in the federal district court, she named Warren Burger as the principal defendant. When the court of appeals held that she was entitled to relief, the caption of its opinion was “Grace v. Burger.” Our opinion upholding the statute except insofar as it applied to the sidewalks omitted any discussion of whether it was proper for the chief—or, indeed, for any of the rest of us—to participate in the decision. I remember the chief vigorously expressing his view that a litigant should not be allowed to disqualify an impartial judge by unnecessarily naming him as a party to a case. I think our discussion of the disqualification question reflected a consensus that either all of us or none of us should participate. It would have been wiser for our opinion to describe that consensus because Burger, as the named party, was unfairly singled out for criticism for not disqualifying himself.

  A more significant case that was also decided in 1983 led to a major change in the work of the Supreme Court. In earlier years, the Court’s review of state criminal cases had almost always been a response to a claim by the defendant that his federal constitutional rights had been violated. If a state court afforded the individual greater protection than the federal constitution required, there was no need for federal intervention. It had always been the law that a state legislature or a state constitutional provision could grant its citizens rights that federal law did not mandate. The fact that a state court decision rested on both a state and a federal ground generally provided a sufficient justification for the Supreme Court’s refusal to hear the case.

  The Court reversed its presumption against review of state overenforcement of federal constitutional rights in Michigan v. Long. There, the Court held that it was proper to review such cases unless the state court made it clear that there was no federal issue to be decided by including in its opinion an unambiguous statement that its decision rested on an adequate and independent state rule. That decision essentially invited petitions from prosecutors claiming that a state court had granted too much protection to one of its citizens.

  The impact of a judicial approach that places greater weight on obtaining uniformity among the state courts in their rulings on federal questions than on making sure that federal rights are adequately protected is illustrated by another opinion announced on the same day. The California Supreme Court had held, correctly, in my view, that a jury instruction in a capital case violated the federal Constitution because it tilted the scales in favor of imposing the death penalty in close cases. The instruction informed the jury that the governor had the power to commute a life sentence without the possibility of parole but failed to inform them that he could also commute a death sentence. A bare majority of the justices on our Court held that the instruction was permissible as a matter of federal law and sent the case back to the state court to decide whether it violated the California constitution. On remand, not surprisingly, the state court again invalidated the instruction but this time it supported that result by relying on its own constitution rather than the federal Constitution. It thus reached the same result that about twenty-five other states had reached by relying on their own state rules. The case illustrated how far out of step the five members of this Court’s majority were and, more important, the triviality of the benefits to be derived from expanding the Court’s power to review state court decisions supported by reliance on both federal and state rules.

  When that case was decided, the Court was already overworked. It was hearing oral argument and writing full opinions in about a hundred and fifty cases each term. Serious proposals, some initiated by Chief Justice Burger, considered the advisability of creating an intermediate court of appeals to process certiorari petitions. Some critics, including Justice White, thought that the Court was not adequately performing its duty to resolve important conflicts in the lower courts on questions of federal law and therefore should grant cert more frequently. My own view was the exact opposite. I agreed that it would be wise to cut back on the Court’s mandatory jurisdiction but that we were granting an unnecessarily large number of certiorari petitions. I particularly opposed reviewing state court decisions like the California jury instruction case in which the only issue was whether state judges had granted their citizens greater protection than federal law required. The burdens associated with hearing too many cases persisted throughout Warren Burger’s tenure as chief. In my judgment, those burdens should be characterized as “self-inflicted wounds,” not just because of their impact on our workload but also because prosecutors seemed to prevail more often than defendants. As the Chicago Tribune cartoon reproduced here indicates, those decisions adversely affected the public’s perception of the Court as an impartial guardian of the rule of law.

  Chicago Tribune cartoon by Jeff McNelly (April 1984). Used with permission of the Chicago Tribune.

  Discussion of one final procedural change under way during Burger’s tenure will help to introduce the means by which he brought his tenure as chief justice to a close. The Supreme Court reviews cases pursuant to its “mandatory jurisdiction” and “discretionary jurisdiction.” The former describes those lower court decisions that Congress has by statute required the Supreme Court to hear. At one time, the Supreme Court decided many such cases. The case that I argued in 1962 was such an appeal. As a result of amendments eliminating most of the Court’s mandatory jurisdiction, only a few such appeals are now heard each year. In the vast majority of the cases presented to the Court, a losing litigant has filed a petition for certiorari invoking the discretionary jurisdiction of the Court. The denial of such a petition permits the decision of the lower court to remain in effect, but it does not constitute a ruling on the merits by the Supreme Court. Most of the orders entered by the Court are denials of certiorari that merely inform the parties that the Court will not hear their case.

  When the Court does grant certiorari, the parties must file briefs and make oral arguments addressing the
merits. Afterward, the Court needs time to prepare the opinions explaining its decision. Frequently, during the months that elapse between a grant of certiorari in a case and announcement of a decision on the merits, other petitions will be filed raising either the same issue or an issue that may be affected by the ruling in the case under advisement. It is the practice of the Court to hold such petitions on the docket until the pending case is decided. Following the announcement of an opinion in the pending case, an appropriate order is entered in every held case—usually either an order denying certiorari review or an order remanding the held case to the lower court for reconsideration in the light of the just-announced opinion.

  On the final day of each term, after the last opinions have been announced, the justices return to the conference room to dispose of the cases that have been held pending the announcement of those opinions and to decide any other matters that need attention. It was at such an end-of-term conference that Potter Stewart (in 1981) and Lewis Powell (in 1987) informed his colleagues (other than the chief) of his decision to retire. I remember an especial sadness on both of those occasions—and in Lewis’s case, a few tears shed by Potter’s successor, Sandra Day O’Connor.

  Warren Burger’s decision to retire was unusual in two ways. First, it broke from the mold described above. On June 17, 1986, well before the end of the Court’s term, he sent a letter to President Reagan requesting that he “be relieved as Chief Justice of the United States effective July 10, 1986, or as soon thereafter as my successor is qualified.” In proceeding in this way, he was something of a trendsetter; like Burger, I later announced my own retirement in a letter to the president sent well before the end of the term. Burger, however, gave a unique reason for stepping down. He explained that in his position as chairman of the Commission on the Bicentennial of the Constitution, he was responsible for telling the story of our great constitutional system to the American people and that telling “that story as it should be told is an enormous and challenging task” that he could not adequately perform while continuing in his judicial office.

  It was several weeks later that I learned of his decision and sent him a note expressing my disappointment. His response, which alluded to his leaving his office at about one thirty in the morning, confirmed his estimate of the burdens of his work on the Bicentennial and his appraisal of the importance of that assignment. It was, of course, also important to the Court because it led to the president’s nomination of William Hubbs Rehnquist as the sixteenth chief justice of the United States and, because Rehnquist had to give up his seat as an associate justice to become chief, of Antonin Scalia’s appointment as the 103rd justice of the Supreme Court.

  VI

  William Rehnquist

  William H. Rehnquist, Associate Justice (1972–1986), Chief Justice (1986–2005)

  BILL REHNQUIST WAS A meteorologist in the Air Force during World War II. After the war, he studied law at Stanford University, graduating at the top of his class and securing a clerkship with Justice Robert Jackson. Jackson was clearly one of the Court’s most gifted writers—for example, in his opinion endorsing Chief Justice Stone’s position in the flag salute case, he wrote:

  If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

  Nevertheless, his dissent in the Bob-Lo case and his decision to leave the Court to act as a prosecutor in the Nuremberg trials prevent me from ranking him among our greatest justices.

  After his clerkship with Jackson, Bill and his wife, Nan, decided—based in part on a meteorologist’s expert appraisal of the favorable climate in Arizona—to settle in Phoenix, where Bill practiced in a small firm.

  In 1969, he returned to Washington to head the Office of Legal Counsel to the president. Two years later, President Nixon selected him to fill the vacancy on the Court created by the second Justice Harlan’s resignation.

  Bill had served as an associate justice for fourteen years when President Reagan chose him, in 1986, to be the chief justice. In the Senate, a substantial number of legislators opposed his confirmation because they regarded his opinions as reflecting insensitivity to civil rights issues. That opposition overlooked the fact that the change in his status from an associate justice to chief justice would not give him any additional voting power. Because of the senators’ concentration on the qualifications of Rehnquist, they devoted relatively little attention to the far more important question of what kind of justice the new appointee, Antonin Scalia, would be. He, of course, was exceptionally well qualified and would have been confirmed overwhelmingly even if he had been the center of attention. Nonetheless, there is irony in the fact that the senators were far more interested in raising questions about Rehnquist than they were in questioning the new justice.

  The vote to confirm Rehnquist was a lukewarm sixty-five to thirty-three. His colleagues on the Court, however, welcomed him into his new position. We all regarded him as a friend who we knew would handle his new responsibilities competently and impartially. He more than fulfilled that expectation throughout his career as chief justice.

  Like many chief justices, Bill first presided over his colleagues in person at the initial conference of the term in which he held his new position. It is at that conference that the Court acts on the large volume of petitions for certiorari and jurisdictional statements that have accumulated during the summer recess. Before I joined the Court, the conference was held during the week that started on the first Monday of October, when the new term began. A few years before Bill became chief, however, the Court accepted Harry Blackmun’s suggestion that the conference occur in September so that oral arguments could begin on the first day of the new term. Bill’s maiden appearance thus came a week earlier in the year than had those of his predecessors.

  Presumably because at sixty-two he was younger than most of his colleagues, Bill suggested at the conference that we continue to call him by his first name. We promptly and unanimously rejected that suggestion. While we are informal in our communications with one another, the tradition of addressing the first among the nine equals as either Chief or, occasionally, Mr. Chief Justice is firmly embedded in our procedures. (The latter term will no doubt be shortened to Chief Justice as soon as a woman occupies that office.)

  That the change in our chief would change the tenor of our deliberations was clear from the outset. Under Warren Burger’s leadership, the opening conference usually ended some time on Wednesday. On the first day of Bill’s leadership, I think we completed our work shortly after Monday’s lunch. That type of efficiency characterized all of Bill’s work as chief. At our conferences on argued cases, he insisted that each of us speak only in turn, and he protested additional debate or discussion after the first round of comments was completed. He was equally firm in those protests regardless of whether the speaker agreed or disagreed with his own views. In short, he was a totally impartial presiding officer.

  Moreover, he was meticulously accurate in noting and remembering the different positions advocated by different justices on each issue presented in each argued case. To the best of my memory, he never assigned a majority opinion to a justice whose views were not supported by at least five votes in the conference discussion. Of course, there were occasions when further study persuaded a justice to change his or her mind, but such changes were not attributable to any defect in Bill’s leadership.

  Efficiency and impartiality also characterized his leadership in oral arguments. On an argument day, a buzzer sounds in each justice’s chambers at 9:55 a.m. Argument is scheduled for 10:00. In the intervening five minutes, the justices must arrive in the robing room, don their robes, and then greet one another with handshakes either in that room or in the adjacent conference room, where they must line up in time to make their entrance into the courtroom. Inevitably, handshakes breed conversations,
both in the robing room and in the conference room. These impede preparation for the timely parade that enables three groups of three justices each to ascend the bench simultaneously in response to the marshal’s cry of “Oyez, oyez.” As chief, Rehnquist was ever mindful of threats to punctuality in the timing of our entrance. His careful herding ensured that we entered the courtroom at precisely 10:00 every time. I am quite sure that he surpassed all his predecessors in supervising and guaranteeing justices’ “on-time arrivals.”

  He was equally vigilant in making sure that every oral argument ended on time. A white light on the lectern warns the advocate that his or her time will expire in five minutes, and a red light signals the end of the allotted time. When Chief Justice Rehnquist was presiding, the moment the red light went on, the argument was over. He sometimes interrupted an advocate in the middle of a sentence and rarely (if ever) allowed anyone any extra time.

  As was true of his conduct at our private conferences, he was totally impartial when presiding in open court, holding veterans such as the solicitor general of the United States to exactly the same strict time limits as younger lawyers making their first arguments. Thus, when Senator Arlen Specter, later the chairman of the Senate Judiciary Committee, was presenting his oral argument challenging the legality of the closing of military installations in his state and attempted to add a few words after his time expired, he was summarily rebuffed. (In subsequent conversations that I had with the senator in the barbershop of the Senate Office Building and elsewhere, he made it quite clear that he well remembered that rebuff.)