The Supreme Court

By William Rehnquist

Judges write like they are paid by the letter, while lawyers idea of a simple sentence is one with ten clauses.

Chief Justice William Rehnquist is an exception on both of those counts. He writes with such clarity without being verbose. He has been taught by one of his colleagues at the attorney general's office of Nixon administration that any thing more than six lines in print, is a long sentence. He followed that rule to the letter.

The result is an extremely readable book about the history and milestones of the court mostly till early 1950s. He spends the rest of the book on the inner, behind the scenes workings of the court.

William Rehnquist started his career working as law clerk for Associate Justice Jackson in 1952. He spent subsequent years practicing law in Arizona, until he worked in Nixon administration as an assistant attorney general. He was then appointed as an associate justice at the Supreme Court. He was eventually elevated to Chief Justice by President Reagan. He wrote his book after he spent a few years as Chief Justice.

Rehnquist, therefore, chose not to speak about cases that came to the court after 1952. or rather he stops his broad historical analysis of the court at 1952.

He starts the book cherishing his load trip from Ohio to Washington DC in an old beaten car, all excited to join his clerkship. The grandness of the court, its corinthian columns, the grand ceremony of opening of the court, justices taking their seats - the whole thing blows him away.

The Supreme Court of United States is an extremely selective court. About 7,000 petitions or certioraris reach the court, but they accept in about 100 petitions. (For contrast, the Indian Supreme Court gets about 60,000 petitions, it accepts around 3,000 of them)

Law clerks at the supreme court are thrown into the deep end of the pool almost right away. Each justice gets to write about 10-12 opinions every year. At 3-4 law clerks per year, each one gets to write 3-4 opinions per year. But they do have to churn briefs on all those 100 cases.

Rehnquist catches up pretty fast with his case load, and the book quickly slides into historical cases.

He starts with Marbury v. Madison. Up until this case, courts were merely settling disputes between two parties. This is the case in which Chief Justice John Marshall introduced judicial review. For the first time, he makes the case that the top court can strike down laws if the court deems them unconstitutional. He opens a new chapter and in one stroke makes judiciary a co-equal branch of government.

President John Adams nominated John Marshall and he is claimed to have said "Marshall is my gift to America". Marshall stayed at the court for 30 odd years. President Andrew Johnson then nominated Robert Taney as Chief Justice. Taney ends up staying another 30 years. In 60 years, while 14 presidents change office, the court sees only two chief justices, both very influential in different ways.

Chief Justice Taney makes some sound decisions involving commercial activities and tries tp protect the interest of people and state at the expense of commercial activity. But he pretty much precipitates the American Civil War with Dred Scott v. Sandford. The judgment gives little room for earlier Missouri compromise to be sustainable. Incidentally, its this case that prompts debates between Lincoln and Douglas, and there after brings him national attention.

Abraham Lincoln nominated five justices to the supreme court. Two of them turned out to be very highly influential in shaping the judicial philosophy fore the next few years. Justice Miller was generally more supportive of state power and public regulation, while Justice Field was a staunch advocate of individual and economic liberties, foreshadowing the laissez-faire approach to economic rights.

The next chaper is about three giants of the early 20th century. Justice Peckham was a champion of economic liberty and freedom of contract. Justice Oliver Wendell Holmes Jr. and Justice Louis Brandeis both were strong advocates of individual rights and freedom of speech.

But Justice Peckham's freedom of contract grows strong in nature as there have been barely any democratic presidents in a long sixty year span of time. President Franklin Roosevelt's new deal comes into a head on collision with Peckham's point of view.

Peckham's Lochner decision symbolized a period (the "Lochner era") where the Supreme Court frequently struck down economic regulations, viewing them as unconstitutional infringements on economic freedom. This approach severely limited state and federal power to regulate labor conditions, wages, and business practices.

The court starts striking down many of FDR's new deal policies such as social security, financial regulations, labor protections etc. Although Peckham is no longer is on the court, his Lochner-era thinking continues to rule the roost the court.

In frustration, FDR plans the pack the court with additional justices. FDR works senators and almost gets a version of plan to pass thru the senate, but in the last minute the senate majority leader collapses with a heart attack. Many of the votes pledged turn out to be favors to the majority leader, and therefore Vice President John Garner tells FDR that his plan is dead in the water.

But in a matter of few years, FDR gets to clean up the court and replace a whopping 8 new justices. The only president who ever came close to that number was Washington himself. If only FDR realized time was on his side, and he just needed patience!

Rehnquist almost sounds like a Roosevelt liberal in his analysis of all these years! He does disagree with the Japanese prisoner judgements during WW2.

I was really looking forward to Brown v. Education, another famous case, which desegregated schools in America. But Rehnquist stops in 1952. Turns out he also wrote a controversial memo for Justice Jackson, dissenting the majority judgement.

He spends rest of the book on the court's day to day, week to week and year to year schedule. The Supreme court is a unique institution in which the justices do their work themselves without an extensive staff like Congress.

Rehnquist's love for the institution, his administration of the court as chief justice, the ability to approach a case from dispassionate point of view..all of that is much too much admirable and inspirational.

Lovely book, and great lucid writing.