Five Chiefs Read online

  Although he was informal with his colleagues, the chief thought it important that lawyers address members of the Court as Justice rather than Judge, and there were occasions when he reminded a lawyer that he was the chief justice. The reminder, of course, was not necessary. In addition to sitting in the middle of the bench and presiding over arguments, Bill had affixed four gold stripes on each sleeve of his robes. Any observer could tell that he held a unique position among the nine of us. His decision to embellish his robes with those stripes came as a surprise to the rest of us. He had previously described his favorable impression of the colorful robes worn by some judges at an international conference that he had attended and suggested that we consider a change in our attire. We had immediately and uniformly given him a negative response to that suggestion. Nevertheless, with regard to his own robes, he went right ahead.

  Efficiency also characterized Bill’s preparation of opinions. When he was an associate justice, the Court was confronted with the question whether President Reagan’s executive order providing for the arbitration of disputes between the Iranian government and American businesses was constitutional. A prompt answer to the question by our Court was essential to maintaining American credibility in this sensitive area of foreign relations, for the order helped implement the agreement that had led to the release of the American hostages taken in Iran in 1979. No doubt because of his confidence in Bill’s ability to craft an acceptable opinion promptly, Warren Burger assigned him the Court opinion. Despite the complexities and the novelty of the issues, it took Bill only a matter of days to complete a draft upholding the executive order, which all of us joined.

  As chief justice, he set an example for the rest of the Court by completing all of his own opinion assignments promptly. I understand that he enforced a ten-day rule that accorded his clerks only that limited period in which to complete the first draft of every one of his opinions. No matter how large the record was or how difficult the legal issues were, the draft was due in ten days. I think the quality of some of his opinions may have been adversely affected by that rule. As is apparent from what I have written in numerous dissents—such as my opinion in the National League of Cities case, which I have already mentioned, and in Justice David Souter’s and my dissents in the Seminole Tribe case, which I will discuss shortly—I consider the quality of the writing far less important than the quality of the judgment that many of those opinions revealed.

  Bill enjoyed gambling for modest stakes. He and I bet a dollar on virtually every Redskin game. I usually lost because I tended to bet on the home team. When Bill lost, he always paid his debt as soon as we met on Monday morning. He would also organize betting pools during elections, during the Kentucky Derby, and sometimes to predict the depth of accumulating snow in areas adjacent to the Court.

  Rehnquist enjoyed preparing for the term-end party, which included skits written and performed by clerks and a Jeopardy!-type quiz for which he drafted questions about the history of the Court and a variety of obscure topics. He might ask the names of litigants in cases decided during the term or the name of a Confederate general who fought in a particular Civil War battle; he might ask for a list of the pairs of justices who shared the same name. (If you count Justices John Clarke and Tom Clark and also count Owen Roberts and Rehnquist’s immediate successor, John Roberts, there are ten. The other eight pairs are Samuel and Salmon Chase, the first and second John Marshall Harlans, Howell and Robert Jackson, Thomas and William Johnson, Lucius and Joseph Lamar, John and Thurgood Marshall, John and Wiley Rutledge, and Edward and Byron White.)

  Rehnquist liked to sing, knew the lyrics of many songs, and could recite from memory a variety of familiar poems, including John Greenleaf Whittier’s “Barbara Frietchie,” which he quoted in full in his dissent from the holding in Texas v. Johnson that the First Amendment protects flag burners. An excerpt from that poem reads:

  On that pleasant morn of the early fall

  When Lee marched over the mountain wall,—

  Over the mountains winding down,

  Horse and foot, into Frederick town.

  Forty flags with their silver stars,

  Forty flags with their crimson bars,

  Flapped in the morning wind: the sun

  Of noon looked down, and saw not one.

  Up rose old Barbara Frietchie then,

  Bowed with her fourscore years and ten;

  Bravest of all in Frederick town,

  She took up the flag the men hauled down;

  In her attic-window the staff she set,

  To show that one heart was loyal yet.

  Up the street came the rebel tread,

  Stonewall Jackson riding ahead.

  Under his slouched hat left and right

  He glanced: the old flag met his sight.

  “Halt!”—the dust-brown ranks stood fast.

  “Fire!”—out blazed the rifle-blast.

  It shivered the window, pane and sash;

  It rent the banner with seam and gash.

  Quick, as it fell, from the broken staff

  Dame Barbara snatched the silken scarf;

  She leaned far out on the window-sill,

  And shook it forth with a royal will.

  “Shoot, if you must, this old gray head,

  But spare your country’s flag,” she said.

  A shade of sadness, a blush of shame,

  Over the face of the leader came;

  The nobler nature within him stirred

  To life at that woman’s deed and word;

  “Who touches a hair of yon gray head

  Dies like a dog! March on!” he said.

  Although I did not tell Bill at the time, my concern that this lengthy quotation might detract from the force of the legal analysis in his opinion was one of the reasons that I decided to write my own dissent.

  In most cases, Bill led guests at the year-end party in group singing, accompanied by Judge Edward Becker of the United States Court of Appeals for the Third Circuit, who regularly made the trip from Philadelphia to play the piano for us.

  As our weekly football-season wagers reflect, Bill liked sporting events. Basketball was his particular favorite, at least while his son was a star on his high school team. I am told that Bill sometimes used rather strong language to voice his disapproval of unfavorable rulings by the referee in his son’s games. With regard to his colleagues, he used somewhat milder language, though it was still emphatic. He often described the harsh consequences of his strict enforcement of a rule that seemed inequitable to some of us as “tough tacos.” Bill had a good sense of humor, but unlike some of his colleagues, he seldom displayed it at oral arguments.

  Bill also liked playing sports, though he had a bad back that sometimes was painful and limited his ability to exercise. He went swimming almost every day and also played a good deal of tennis. He had a weekly game with his law clerks and required the best of the three to play as his partner. I suspect that his pre-hiring interviews enabled him to field a winning team every year. On weekends he occasionally played doubles at his country club in Virginia. He received prescription medication for the pain in his back, and there was a brief period—well before he became chief, I believe—when his taking that medication affected his speech, though I never thought that there was any impact on his ability to work efficiently.

  My wife, Maryan, and I have especially fond memories of Nan Rehnquist, Bill’s wife. At some time during Earl Warren’s tenure, the spouses of the justices began to hold three or four luncheons each year. Typically they rotated the roles of the hostesses, with three of them taking responsibility for selecting and preparing the menu for each luncheon. Widows of deceased justices and wives of retired justices were treated as equals in both planning and attendance. Originally known as the wives’ luncheon, the occasion became the spouses’ luncheon after Justice O’Connor joined the Court. Her husband, John, attended frequently, but unlike Ruth Ginsburg’s husband, Marty, he did not play a leading role in p
lanning or hosting the lunches that he attended. There seems to be a consensus, however, that Marty was one of the most talented chefs ever to take part in those affairs.

  The luncheon is held on the ground floor of the Supreme Court Building in a three-room suite that includes a dining room, a parlor, and a kitchen. That area was called the wives’ dining room, and then became the spouses’ dining room, and is now the Nan Rehnquist Room. The spouses chose that name because of their uniformly deep affection for Bill’s wife. She died, a victim of cancer, during the fifth year of Bill’s tenure as chief. I have nothing other than the most favorable memories of Nan. She was an extraordinarily gracious and friendly person.

  Though Rehnquist ran a tight ship as chief without losing the goodwill of his colleagues, it is as the equal of other members of the Court—in deciding cases—that he had his greatest impact. In some areas, like separation of powers, he and I found common ground. The basic contours of that concept are well known. The people of the United States ordained and established the Constitution in order to form a “more perfect Union,” not a perfect one. To promote and protect the nation, the Constitution commits three categories of power to three separate branches of our federal government. Article I assigns “All legislative powers herein granted” to Congress. Article II places “The executive Power” in the president. And Article III vests the “judicial power of the United States… in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The three branches, however, are not completely distinct. For instance, the president may veto acts of Congress, and some of the president’s appointments are not effective unless confirmed by the Senate. Moreover, there are many questions concerning interactions between various actors that the constitutional text does not clearly answer.

  Perhaps because an incomplete separation of powers is a fundamental part of the constitutional scheme, some of the most important controversies that have arisen in our history have involved disputes about the scope of the powers granted to the president by the general language in Article II. I first read two of those cases—Myers v. United States (1926) and Humphrey’s Executor v. United States (1935)—as a student in Professor Nathanson’s constitutional law class.

  The Myers opinion is especially memorable, partly because of its length and its detailed discussion of history, and partly because its author was William Howard Taft, who, as mentioned earlier, had served as the chief executive of the United States before becoming the tenth chief justice of the United States. The case held that the “executive Power” vested in the president by Article II of the Constitution included the power to remove a postmaster of the first class—a federal officer whose appointment by the president required Senate confirmation—even though an act of Congress required the president to obtain the consent of the Senate before doing so. Three justices, including Justice Holmes and our professor’s former boss Justice Brandeis, dissented. They argued that because Congress had created the office of postmaster, it could also provide job protection for those who filled the office.

  In class, we expected our professor to espouse the views of the dissenters, but he never told us how he felt the case should have been decided. Instead, he turned to the facts of Humphrey’s Executor. There, President Franklin D. Roosevelt had removed a member of the Federal Trade Commission (FTC) whom his immediate predecessor, President Herbert Hoover, had appointed. Roosevelt took this action in defiance of a provision of the FTC act that was intended to limit his power to do so. Our professor stressed that Roosevelt was certainly justified in reading the broad language in Taft’s Myers opinion as providing him authority to act as he had. The Court’s unanimous opinion in Humphrey’s Executor, however, disavowed much of Taft’s reasoning as unnecessary to the decision in the Myers case. It emphasized the fact that the FTC act authorized the commissioners to engage in rule-making and to decide contested cases. These “quasi-legislative” and “quasi-judicial” functions, it reasoned, were not comparable to the purely executive duties of a postmaster. Congress, the Court held, had the power to establish agencies that made and enforced their own rules and were not subject to the control of the president. Thus, President Roosevelt did not have an unlimited power of removal enabling him to exercise control over such agencies.

  In his second term as chief justice, William Rehnquist had to confront an even more difficult separation-of-powers issue than those of the postmaster and FTC commissioner cases. Morrison v. Olson (1988) presented the question whether Congress had violated the constitutional principle of separation of powers by legislating the Ethics in Government Act, which authorized the appointment of an independent prosecutor who was not subject to removal by the president. In his opinion for the Court, the chief concluded that the removal provisions in the statute were more analogous to those upheld in Humphrey’s Executor than to those that Myers had refused to uphold and that the statute was therefore valid. In dissent, Justice Scalia argued that the duties of a prosecutor are unquestionably executive in character and that the case was therefore controlled by Chief Justice Taft’s opinion in Myers. As a result, Scalia reasoned, the statutory bar on presidential removal of the independent prosecutor ran afoul of the Constitution.

  A few days before the opinion was announced, we held our annual end-of-term party for the clerks and other Court employees. As Justice White and I shared some of the available nonalcoholic punch, we noted that no one had made an oral announcement of a dissenting opinion during the term. When Justice Scalia joined us, glass of punch in hand, we talked briefly about Justice Harlan’s view that there should be at least one such dissent every year. If memory serves me, Nino, who was then our junior justice, stated that he was unaware of the tradition but welcomed our suggestion that he announce his opinion from the bench. His written opinion failed to persuade any justice not to join the chief, but I think his eloquent oral statement—announced immediately after the chief justice’s majority opinion on June 29, 1988—may have helped to convince some members of Congress that even if the statute was constitutional, it would be unwise to reenact it. When the act expired by its own terms in 1992, it took Congress two years to reauthorize it. It lapsed again in 1999, after Kenneth Starr’s investigation under the act had led to President Bill Clinton’s impeachment, and has not been reauthorized since.

  Another separation-of-powers case in which Bill Rehnquist and I agreed has come to be remembered as part of the narrative of events culminating in the Senate proceedings that followed that impeachment. As chief justice, Rehnquist presided in the Senate during those events. I did not attend any of those sessions but was unsurprised that those who did gave Bill uniformly high marks for his characteristically impartial and efficient leadership. After all, a few years earlier Bill Rehnquist had written one of the few books that deal almost exclusively with the subject of impeachment. The book, entitled Grand Inquests, may not have been a bestseller, but the author’s study of the subject made him uniquely well qualified to fulfill his constitutional role. Based on my conversations with him at the time, I know that he also enjoyed the departure from his normal routine.

  Shortly before those proceedings, the Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term. In a unanimous opinion that Bill assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial. Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.

  While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made. In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare
d: “If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency. As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.” Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time. These events, it is argued, proved my comments to have been ludicrous.

  That appraisal depends on a failure to recognize both the difference between a trial and a pretrial deposition and the difference between the trial proceedings and the unforeseen impeachment. A postponement of the trial would not necessarily have justified a postponement of the president’s deposition. Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade. Given that the case (Clinton v. Jones [1997]) was settled, we will never know just how much time a trial would have consumed. We do know that our ruling did not give rise to the predicted avalanche of litigation. And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion.

  Still, the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work. I have never written anything that approaches the eloquence of the Gettysburg Address, but I do understand how its author could be so profoundly wrong when he predicted that the “world will little note, nor long remember” his words.