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Chief Justice Rehnquist: Soft Shoes Below the Bench

June 22, 1986|Michael Q. Eagan | Michael Q. Eagan is a partner in the San Francisco law firm of Howard, Rice, Nemerovski, Canady, Robertson & Falk. He served as a law clerk for Rehnquist in 1976-77

His affability will probably be valuable in his role as chief justice. The justices' workload is intense, and the Washington winters long. As chief justice, it will be his responsibility to make sure that the place, in its many aspects, functions.

Because the justices have lifetime tenure, and are appointed, not elected, the Supreme Court has been referred to as the least political branch. The chambers of the nine justices have been likened to nine separate law firms. But in order to author a majority opinion, a justice needs four other affirmative votes (in the ordinary case). The process of persuading others to join an opinion invariably leads to "intra-court" politics. Some are better at this persuasion, this form of politics, than others. Rehnquist is one of the best, if not the best.

For example, he has recognized that early circulation of a hard-hitting draft opinion may be more effective in securing and solidifying the votes of other justices than might be a more gilded, but late-arriving opinion, suitable for dissection by law review students everywhere. I remember a case in which he began as the sole vote for a particular result. He circulated a draft opinion, got a few relatively favorable comments from other justices and circulated a redraft. The process continued, each redraft faithful to the constitutional principle espoused yet bending to embrace changes suggested by other justices. His majority opinion was published with only two dissents.

His abilities to forge coalitions can only be enhanced in the central role of chief justice. When in the majority on a particular case, the chief justice designates who writes the majority opinion. Even if five or more justices have agreed on the ultimate legal result in a specific case, the narrowness, or breadth, of the language used to reach this result may prove significant for future cases, making the assignment function critical.

He has a dry sense of humor. Once I was analyzing a case involving the due process clause of the 14th Amendment. There were two prior cases closely on point: a 1946 decision narrowly construing the constitutional principle, and a 1960 Warren Court decision giving the same principle an expansive interpretation. There were significant analytical problems with the holding of the later opinion, problems that the Boss had explored in previous writing. Even so, I decided to check. I asked which case he would prefer to follow. Without missing a beat he replied, "The 1946 case." "Why?" I asked. "Because it is 14 years closer to the enactment of the 14th Amendment," he replied, chuckling to himself.

None of this is to suggest Rehnquist is perfect, or even close to it, or that we should all agree with each of his opinions. The question is: What kind of chief justice will William H. Rehnquist be? Well, if you liked him as associate justice, you are going to love him as the chief.

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