Post Date: September 7, 2005
The following op-ed by Professor Laurence Tribe, Gentleman of the Court, originally appeared in The New York Times on September 6, 2005.
In October 1971, the White House tapped Assistant Attorney General William H. Rehnquist to respond to my critique of someone at the top of its short list for one of the two vacancies created by the nearly simultaneous resignations of two justices. I found his tepid apologia underwhelming. Yet within two months, when Mr. Rehnquist took the Supreme Court seat once marked for the target of my critique, I began to see how foolish it would have been to measure him by his defense of a candidate about whom he probably felt lukewarm. While it may be too soon to assess the chief justice's enduring impact, it is not too soon to reflect on why so many who served with him as colleagues, worked for him as law clerks or appeared before him as advocates are already prepared to render a verdict of greatness and to tell the world how deeply his passing is mourned.
Seeing past the chief justice's sometimes abrupt manner in oral argument was eased for me by his willingness to engage me, then an unknown law professor in his mid-30's, in a public debate in 1978 on the role of an active judiciary in a pluralistic democracy, moderated by the legendary Judge Henry Friendly. Charmed by his disarming informality and candor during the debate and at the private dinner that followed, my wife and I emerged with fond feelings toward a man whose warmth and humor within the court were not always evident to strangers.
When I began arguing regularly before the Supreme Court two years later, I felt from the start that I was conversing with a brilliant colleague who always got right to the point. In more than 30 oral arguments over the past 25 years, I never saw him ask questions, as his colleagues sometimes do, to hide the ball, parade his brilliance, show up a colleague, or play to the galleries. When he thought you were approaching a dead end, he told you so, as he did in 1997, when he said I wouldn't "find much disposition on the court to enlarge on" a precedent on which one of my arguments rested. Taking the hint, I shifted to the other pillar on which my case stood (and won the case).
Chief Justice Rehnquist was attentive to legal doctrine but impatient with legalisms that ignored reality. His strong pragmatic streak, differentiating him from those on his right, was manifest. In a case about asbestos litigation that I argued in 1998, the legal issue was the propriety of certifying a particular lawsuit to proceed as a class action, but he insisted on knowing how well those allegedly injured would "fare if they just keep fighting their individual lawsuits," especially if the companies they sue "end up in bankruptcy." Had I not been reminded to paint that larger picture, the case might have come out differently.
That Chief Justice Rehnquist was unlike both puritanical conservatives like Warren E. Burger and movement conservatives like Antonin Scalia was evident in the character of his questions in the two gay rights cases I argued in the mid-1980's, one about firing teachers for "advocating" homosexual activity and the other about prosecuting consenting adults for same-sex intimacy. In neither case did his questions have the "I'm shocked" tenor of Chief Justice Burger's contribution to the dialogue. Justice Rehnquist simply pressed me appropriately on the absence of evidence that the challenged school board regulation had "ever been applied to a single living soul." And when I argued that consenting adults have a fundamental right to engage privately in the sex acts of their choice, while Chief Justice Burger and Justice Byron R. White could barely contain their disgust, Justice Rehnquist calmly pursued the question of just when and how that "fundamental right" arose.
A dry and gentle wit was among the chief justice's greatest strengths. In a 1991 abortion financing gag order case, I tried to lighten things up by responding, when the chief justice suggested that a State Department press secretary has to toe the government's line, that "some of them don't seem to realize that." Chief Justice Rehnquist let me enjoy the laughter before topping me with a deadpan, "Well, some of them may not realize it, but I think they'll soon learn." In the two cases I argued in which Chief Justice Rehnquist penned a dissent (a freedom of speech case in 1980 and a church-state separation case in 1982), his deliberately playful solo opinions were written with so light a touch that I enjoyed reading them far more than I did the sober 8-to-1 opinions in my favor.
Chief Justice Rehnquist's goal of weakening the checks on presidential power happily met decisive opposition within the court, although I worry that the seeds he planted to that end might yet bear dangerous fruit. No pleasure in argument could overcome my sadness at the Supreme Court's performance in the 2000 election, or my disappointment at how far the chief justice succeeded in his goals of lowering the wall of separation between church and state, shrinking Congress's power and reducing the protections accorded the mostly poor people of color who are suspected or accused of crime.
Recent events might change the direction of the winds that moved America toward the point Justice Rehnquist comfortably occupied from his earliest days on the court. How the new court will tack with or against those winds will be Topic A at the forthcoming confirmation hearings, as it should be. But Topic B had better be the ability of the new justices to help the court earn the respect of all who take part in its proceedings or are affected by its rulings - which means everybody. Chief Justice Rehnquist was a master at that mission. For that, and for the steadiness of his leadership, I will always remember him with profound gratitude and admiration.
Laurence H. Tribe is a professor of constitutional law at Harvard.