Tales of Rehnquist’s Days on the Left Wing of the Court

(The following commentary is excerpted and adapted from an informal speech that Justice Blackmun made on July 25 at a session of the 8th Circuit judicial conference in Minneapolis.)

This year was a year of important cases. For me this was the most difficult term of the 16 that I have been privileged to serve. Difficult for several reasons: the type of cases, the divisiveness of the court and the fact that the justices are getting older. And we’re getting a little more short-tempered, a little more impatient with things. And when one gets into abortion and sodomy in the home, and some of the religion cases, the patience grows thin indeed.

One could say that the center has held. You’ve heard me say before that I’m a strong believer in holding the center, because I think it would be bad for the country if the court moved suddenly to the right, or suddenly to the left, and I like the centrist position so that the court moves--when it does move--gradually. The center, I suppose, consists of Justice (Byron R.) White, Justice (Lewis F.) Powell (Jr.), Justice (John Paul) Stevens and myself. Although Justice White, when we get into the criminal law, is distinctly not in the center. And Justice Powell in certain types of cases is distinctly not in the center. John Paul Stevens definitely is. We never know exactly how he’s going to vote. I think he’s a bit of a maverick. John is a great theoretician. He’s always looking for the underlying legal theory. And I can hear (Justice) Thurgood Marshall grunt; he couldn’t care less for a theory. He wants the practical aspect.

One could say that there’s been a noted tendency this year that the court is deciding more than the case presents. I’ve written separately in a couple of cases accusing Byron White of doing precisely that. And he writes in the next case and accuses me of doing the same thing. That tendency . . . is unfortunate. And one could say that there has been no coalescing hand in the court over the last five years. They are prima donnas. But one can’t fight too hard with Justice X because while he’s your opponent in this case, he may be your friend in the next one.

I think the center held generally this year. But it bled a lot. And it needs more troops. Where it’s going to get them, I don’t know.

So we (will) come up with a new chief justice this fall. (William H.) Rehnquist, assuming that he will be confirmed, is the third to be elevated from the ranks . . . . It should be a fairly easy transition for Rehnquist; after all, he’s been around a good while, he knows how the court works. And can start his new duties running, so to speak.

I shall miss him at my side. Ever since I’ve been there, Byron White has been on one side of me and, after Bill Rehnquist came, he’s been on the other side. It’s rather fun to be between those two. White always telegraphs his feelings, and when counsel is arguing something that he doesn’t agree with he starts to grunt and mumble. And I say, “What are you grunting for, Byron?” And you know what he’s talking about. But his arms come up. And the sleeves of the robe drape. And Byron’s arms are not like mine. They fit his size, and maybe a little more. So that he always reminds me, and I’ve told him this, of a huge crow about ready to take off when those arms go up. And he’s tough on counsel. I’ve had counsel tell me about how questions that Byron White asked are the most indecipherable they ever get from any member on the court.

On the other side of me has been Bill Rehnquist, and Bill always asks questions just to keep himself and the rest of us awake. He has long arms and long fingers. And he’s been on my left and the podium is (to the right) over here. And his fingers go out. Well they come across me. And between White’s black-draped robe and Bill Rehnquist’s fingers, I’ve gotten up a number of times, gone out in the cloakroom, walked around and when the atmosphere was cleared I came back. Rehnquist is a little tough on counsel, and if you’re there and he pops questions at you, sometimes I’m almost embarrassed actually. He’ll say, “You haven’t answered my question, will you answer my question? What’s the matter with you?” And you know that’s a little tough with my black-robed people up there, asking questions all at once. And Bill saying, “Why don’t you answer my question?”

I’ll miss him. I call it the left wing of the court; we’re on the left as we come in, the right as people look at it. But as we march in the left wing consists of myself, Rehnquist and (Sandra Day) O’Connor. But it’ll switch now, and John Stevens will come over and be next to me. And then (Antonin) Scalia when he comes in.

Bill has his clerk send him Trivial Pursuit questions every once in awhile. And he looks at them and answers them, then hands them to me. He’s hard to beat. The one I beat him on: What are the five major poultry-producing states of the Union? Having been in the 8th Circuit and having sat on poultry cases out of Arkansas and even Missouri, I knew that Arkansas was among them, and I knew, from personal presence, Georgia was another one. So I beat him on that. He’s never forgiven me. Don’t ever bet with Bill Rehnquist, and particularly don’t ever bet with him on elections. His knowledge is uncanny.

Bill Rehnquist’s conservative, he’s sharp. He’s vocal. He’s articulate. He’s fast. He gets his work out in a hurry. He assigns to his clerks the first draft of an opinion, and wants it in 10 days. And he gets it in 10 days--something the rest of us, as far as I know, do not do. I never would do it that way, but he does it, and he does it well.

Would Rehnquist be less tough on oralists, sitting in the center chair? I rather suspect so. I think maybe the dignity of the chief justiceship on the bench will influence him in that respect. You know, when you’re out with a crowd on the ends, you can be a little more free-wheeling than in the center chair. Will he file fewer solitary dissents? Will he move more to the center in an attempt to put together what we call a court--a court is five votes? And, hence, will he become less rightist in his tendencies? Would he prove to be a leader on the court? Your guess is as good as mine.

What will he do by way of leadership in the national judicial conference? Will Bill Rehnquist like the trappings of the chief justiceship, the fact that he by statute is chancellor of the Smithsonian, of the National Gallery of Art, that kind of thing, and will he sit on the board of the National Geographic as the past two or three chief justices have done? I don’t know.

I think Bill will be less interested in the trappings of the court. My guess generally is that the court will be a little more relaxed than it has been, be a little more expeditious in its conferences, that there will be more delegation of duties than there has been. I do not evaluate either system at all.

What I’m most interested in, and I think the other members of the court are, is the exercise of the assignment power. As lawyers know, the chief justice when he is in the majority assigns opinions for cases out for opinion writing, and when he is not in the majority that power passes to the associate justice who is in the majority. How Bill Rehnquist will exercise that, I don’t know. Will he be fair? Will he be punitive? I think that power is a great power in the way the court does its business. And that the public is not aware of this.