How not to be Chief Justice: the apprenticeship of William H. Rehnquist.

• Author: Greenhouse, Linda
• Position: 2005-2006 Symposium: The Chief Justice and the Institutional Judiciary

William H. Rehnquist had an unusually long apprenticeship before he became Chief Justice in 1986. He had already served under two Chief Justices: first under Chief Justice Fred Vinson during his own Supreme Court clerkship for Justice Robert H. Jackson in 1952-1953, and then, of course, during the more than fourteen years that he spent as an Associate Justice on the Burger Court. (You will notice that Rehnquist's Supreme Court biography happens to skip the Warren Court years--not that exposure to Earl Warren would likely have made much difference, but it is worth noting that Chief Justice Warren does not even appear in the index to Rehnquist's book on the Supreme Court, a part-memoir and part-history that he published in 1987.) (1)

The differences between Chief Justice Burger and Chief Justice Rehnquist were manifest. One did not need to be a Court insider--and I do not present myself as one--to observe some of them. For example, during the Burger years, it was regarded as routine that an argued case or two would not be decided by the end of the Term, and instead would be, without explanation, restored to the calendar for reargument during the next Term. The reason, almost invariably, was that the Chief Justice had simply failed to exercise enough leadership to extract from his colleagues something that could pass for an opinion.

Perhaps the most egregious example of this phenomenon was the Court's failure to decide INS v. Chadha, (2) the legislative veto case, during the 1981 Term. The case was reargued during the 1982 Term and was finally decided on June 23, 1983, by a vote of seven to two, with an opinion for the Court by Chief Justice Burger declaring the legislative veto unconstitutional. The Chadha file was one of the first I looked at when I began my work with the papers of Justice Harry Blackmun at the Library of Congress in January 2004. I began with Chadha because, in covering the case as it unfolded, I had been so puzzled by the Court's handling of the case. I was flabbergasted by the real story, which I recount at some length in my book. (3) To summarize very quickly, Burger froze. His jurisprudential instincts told him that the legislative veto violated the separation of powers, and that was the view expressed at least tentatively by the majority in conference after the argument. (4) Nonetheless he was terrified by the practical implications of invalidating legislative-veto provisions; some 200 federal statutes contained one-house or two-house legislative veto provisions. (5) During the entire remainder of the Term after the Chadha argument, Burger never assigned the opinion. Nor was there ever a formal vote to hear reargument in the case. The 1981 Term having ended with no opinion even in circulation, reargument was, however, inevitable. Given the Supreme Court's norms, Burger's failure to assign the opinion was an astonishing failure of leadership.

It is simply impossible to imagine such a scenario on the Rehnquist Court. Chief Justice Rehnquist ran the Court with a firm hand. He did not believe in second-guessing others or--more importantly--himself. I heard him say in conversation more than once that he believed a second or third response to a problem tended to be no more valid than the initial response, and so there was little to be gained by going back to an issue again and again. He believed in simply getting the job done and moving on. Most likely, this was an outlook he developed early in life and brought with him to the Court.

It goes without saying that William Rehnquist and Warren Burger were very different as personalities. Burger was deeply insecure, a trait masked only imperfectly by what often appeared to be pomposity. Rehnquist cared very little about what people thought of him. I cannot say he did not care at all, but I am quite sure he cared less than most people do. His lack of physical grace and his lack of verbal flash contributed to the underestimation, by people who should have known better, of his impressive intellect; I was often surprised at the suggestion that Justice Scalia was the...