How Not to Be Chief Justice: The Apprenticeship of William H. Rehnquist

Abstract

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.) 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, 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