The Supreme Court

Revised and Updated

by William H. Rehnquist

New York: Vintage Books, 2001

ISBN 0-375-70861-8

15 February 2004 1:53pm

William Rehnquist, currently Chief Justice of the Supreme Court, has provided the Court's history to the presend day in his book, The Supreme Court. This history is less than gripping. Rehnquist starts with a flashback to the day he started clerking for then Justice Jackson in 1952:

It was a highly prized position; I was surprised to have been chosen for it, and I certainly did not want to be late. … From the looks of the sky to the southeast, I appeared to be headeding into a storm. … An hour or so later … it was snowing hard. … I held my speed down, which wasn't hard to do in the Studebaker. … [T]he skies began to brighten and the snow stopped. … [T]he sun emerged from behind the clouds, and I had the feeling that it was personally welcoming me to the Nation's Capital. (3-5)

After this brief climax, Justice Rehnquist settles into telling the highlights of the Court's 200-some-year-old history. Any excitement present at the beginning never returns. Many of the synopses are interesting, including a mediocre but adequate analysis of Marbury v. Madison and the story of President Franklin Roosevelt's court-packing plan. But even the major points are quickly forgettable. Justice Rehnquist has fashioned together what could serve as nice introductions to significant eras of the Supreme Court's history; as a story on their own they appear listless.

Justice Rehnquist fails miserably in his attempts to inject life into the story by bringing in anecdotes from his own experiences. For instance, Rehnquist tells of boarding with another family during his clerkship for Justice Jackson. "The lady of the house who showed me the apartment was a pleasant, middle-aged woman, and since the apartment met my principal wants I took it." (177). He then follows up with a personal anecdote about which he apparently thinks that, just because it is related to the subject, it must be interesting. In this case, the lady's husband had heard of both Justice Jackson and Justice Frankfurter. The husband believed Frankfurter had Communist leanings, but Rehnquist disputed this. "My landlord looked at me somewhat doubtfully, his expression suggesting not so much that I was trying to put something over on him, as that someone else, perhaps Frankfurter, had put something over on me. He looked totally unconvinced by what I told him." (178). With this less-than-climactic ending, Justice Rehnquist finishes this personal detour and drives immediately back to the long stretch of nondescript highway which is The Supreme Court.

In another of Justice Rehnquist's anecdotes, again while clerking for Jackson, one of his friends, having just met Rehnquist's boss, immediately asked a question and started a dispute with Justice Jacksong. "I was almost ready to hide my head under my desk in embarrassment, but Jackson did not seem to find the question at all embarrassing. He proceeded with a very reasoned, often eloquent, defense of [the case in question]." (181). In other words, a friend asks a question of boss and the employee gets embarrassed—this story is unsurprising, uninteresting, and nigh pointless.

At times The Supreme Court seems as much about Justice Rehnquist as it does the Supreme Court. Rehnquist does acknowledge, in 10 one-paragraph descriptions, 10 members with which he has served at the Supreme Court. (225-229). He then launches into over a page of text explaining why he chose not to take over Justice Stewart's chambers when the latter retired. In short, it seems Rehnquist liked the view better in his old chambers. After becoming chief justice, though, he moved to the traditional chambers of the chief justice, and consequently arrived on time more often to sessions of the Court, because the new chambers were closer to the conference room. (230). This story is relevant to Justice Rehnquist. It is questionable whether it is relevant to the Supreme Court.

Justice Rehnquist is undoubtedly a wise man who has seen much during his stay on the Court. One would be wise not to lightly dismiss his experiences. As one example, Rehnquist's categorization of lawyers who argue before the Court is useful, dividing attitudes and arguing techniques into different classes such as "lector," "debating champion," "Casey Jones," and "spellbinder." (245-248).

On the other hand, Rehnquist's recital of Supreme Court/Rehnquist is lacking—or perhaps more precisely, has lost—a certain vitality. When he first arrived on the Court, Rehnquist "felt then that it would be desirable to have more of a round-table discussion of the matter after each of us had expressed our ideas" before finally deciding on a case. His next comment is probably more telling than he intends: "Having now sat in conference for nearly three decades, and having risen from ninth to first in seniority, I realize—with newfound clarity—that my idea as a junior justice, while fine in the abstract, probably would not have contributed much in practice, and at any rate was doomed by the seniority system to which the senior justices naturally adhere." (255). In his many years at the Court, to paraphrase his words, a certain spark has been lost. Although he tries to bring forth a flicker in his telling of its history, Rehnquist's Supreme Court never really shines.

Notes

Marshall, in Marbury v. Madison, explained that the Constitution must trump any law that applies to the same subject, and that the Supreme Court must be allowed to review any conflicts. It would make make no sense to have a system of a supreme law that makes a law void in theory, but not allow that determination to affect practice. "This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory." (34).
"One of Marshall's major innovations in judicial procedure was the manner in which the Supreme Court delivered its opinions." Instead of each justice delivering an oral opinion "seriatim," as was done in English courts, Marshall changed this tradition "so that an opinion for the Court was delivered by only one of the justices, and in virtually every important caes during his tenure, that one turned out to be the Chief Justice." (40).
The 1857 Taney opinion of Dred Scott v. Sandford was the first time the Court had held an act of Congress unconstitutional since Marbury v. Madison. (53).
Chief Justice Taney stayed on the court for years, and when he was 84 years old Senator Ben Wade of Ohio stated that "no man had prayed harder than he did that Roger Taney would outlive the administration of James Buchanan, but now he was afraid that he had overdone it." (65).
President Lincoln had appointed John Charles Frémont, who had been the Republican nominee for president in 1856, as military commander of the Department of the West. In July 1861, "Frémont issed an emancipation proclamation granting freedom to all slaves within the rebel lines in his district," but Lincoln directed Frémont to revoke it. Frémont refused, so Lincoln removed him. (79).
When Franklin Roosevelt announced his Court-packing plan, all Justices refused to speak on the subject. The Republicans also adopted a policy of silence, allowing Democrats to fight against the plan publicly. "There can be no doubt that this silence on the part of the Republicans immeasurably strengthened the Democratic opponents of the President's plan." (123).
The Post, regarding Truman's seizure of the steel mills and the subsequent public reaction: "Mr. Truman may regard the public concern over this issue as a lot of hooey, as he remarked at his press conference, but citizens bred in the tradition of freedom and in the need for vigilance in sustaining freedom cannot so regard it. They are more likely to see the hooey in the fantastic doctrine that in time of stress the President is a law unto himself." (160).
"The Supreme Court has on occasion been referred to as the conscience of the country, but I think this description has a considerable potential for mischief," says Rehnquist. He notes that this statement is accurate only as far as the Court upholds the Constitution, but it does not imply that justices should impose moral principles from their own consciences on every constitutional question. He quotes from Justice Holmes:
Certitude is not the test of certainty. We have been cock sure of many things that were not so…. One cannot be wrenched from the rocky crevices into which one is thrown for many years without feeling that one is attacked in one's life. What we must love and revere generally is determined by early associations. I love granite rocks and barberry bushes, no doubt because with them were my earliest joys that reach back though the past eternity of my life. But while one's experience thus makes certain preferences dogmatic for oneself, recognition of how they came to be so leaves one able to see that others, poor souls, may be equally dogmatic about something else. And this again means skepticism. (278).