William Rehnquist and Sandra Day O'Connor: an expression of appreciation.

• Author: Kennedy, Anthony M.
• Position: Looking Backward, Looking Forward: The Legacy of Chief Justice Rehnquist and Justice O'Connor - Testimonial

Thank you for the invitation to be here to honor Sandra O'Connor and the memory of the late William Rehnquist. We meet at Stanford, the place that did so much to shape their lives and careers. The years at Stanford gave them their skills as scholars and professionals. Those years, too, helped them find their self-definition, their sense of identity. At Stanford, they continued to shape their ethical frameworks and their beliefs that the individual can, and must, contribute to the progress of a free society. It is a privilege to discuss not just one but two great Justices, here at the University that means so much to Justice O'Connor and that Chief Justice Rehnquist ever admired.

The legal academy, the Bar, historians, and the American people will study their decisions and, in good time, assess their place in the history of the Court and the history of the law. It will be for later generations to find insights more penetrating, judgments more balanced than are possible for us; but it is appropriate for you to begin the dialogue.

My remarks are a brief introduction to your discussions and an expression of appreciation for your undertaking to study the work of my late former colleague and true friend, Chief Justice Rehnquist, and my dear friend, and still esteemed senior colleague, Justice O'Connor.

To begin, let me ask you to match this description to a famous Justice: On a personal level he was casual, almost to the point of being indifferent about his dress. He was devoted to his wife, and it was touching to see the tender affection and care he gave her when she was ill. Then, too, he enjoyed the company of his friends and a night out with the boys. His mind was brilliant in scope and remarkable for being so well ordered. His open, friendly demeanor helped put visitors and friends at ease when they were in the company of his powerful intellect. His tenure was one of the longest in the history of the Court. This is the standard description of John Marshall, the one we read in his biographies. Yet it is also accurate in all respects as to William Rehnquist.

In the conferences of the Court, Chief Justice Rehnquist maintained his positions with great force, but he was respectful of the deliberative process, and our discussions were dynamic yet precise. Outside of formal deliberations, he enjoyed initiating casual conversations, but the element of precision was always a requirement. If the topic was history, the date had to be right to the year, not just the era. If the conversation turned to travel or places, the geography had to be exact.

This applied, alas, even to the weather. When I came to the Court, the Justices on argument days had lunch in the smaller of our two dining rooms. That is because Justices Brennan, Blackmun, Marshall, and White were infrequent attendees. On the first or second day I had lunch with my new colleagues, though, Bill Brennan and Byron White were there to join in the welcome. Seeking to put me at ease, the Chief Justice asked me, "What is the average annual rainfall in Sacramento?" Undaunted, I replied, "Just over twenty inches." The Chief Justice said, "Oh, that is too high."

I let the matter rest. The Chief did not. Within the hour, he sent a memo saying the answer was 18.9 inches. I congratulated myself on a good guess, an answer close enough for government work. The Chief, on the other hand, thought my answer was a wild inaccuracy.

The Chief was not just one for details; he had a fine grasp of complex ideas in the academic sense. During his undergraduate years at Stanford, and through presentation of his thesis for a master's degree, one of his favorite professors was Dr. Arnaud B. Leavelle of the Political Science Department. In that era it was common for political science faculties at major universities to have a scholar whose erudition and learning were drawn upon for a course in the history of political thought. The typical course would begin with Plato, Aristotle, and Cicero; then proceed to Aquinas; then to Montesquieu, Hobbes, Hutchinson, Locke, and Rousseau; then to Adam Smith, Marx, and Bentham; then to Acton, Laski, and Popper. This was the course Leavelle taught. He became Rehnquist's advisor and mentor.

Some eight years after Rehnquist submitted his master's thesis, I, too, began taking the course from Professor Leavelle. He was an inspiring classroom teacher. When he died suddenly, my sense of loss was real because he had taken a personal interest in me and had agreed to be my advisor. It was only a few years ago that the Chief and I learned, through a chance conversation, that we both knew and admired Leavelle. The Chief was delighted and said how grateful he was to Leavelle for introducing him to the world of great ideas.

Another of the Chief's influential teachers was Professor Charles Fairman at Stanford. My surmise is that Professor Fairman taught the future Chief Justice how to be so confident in using original sources when writing history. In 1949, the Stanford Law Review published Fairman's article entitled Does the Fourteenth Amendment Incorporate the Bill of Rights? (1) As the title indicates, the article addressed Justice Black's theory of incorporation. Black explained his theory in 1947 in Adamson v. California, (2) though he had joined...