Coffee, Skits and Complaints about the NYT

Journalists and researchers got their first look at some of the papers of William Rehnquist yesterday, when the Hoover Institution opened a small portion of the collection. The New York Times' Adam Liptak and Jonathan Glater have a nice summary of what they came across, focusing mainly on an episode right after Rehnquist joined the Court.

Rehnquist anguished over whether he should explain why he was not recusing himself from a surveillance case, and he asked a couple of his new colleagues for advice. That led to an amusing (and prescient) exchange with Justice Potter Stewart, which illustrated their frustration with the New York Times and the Washington Post, both of which were hot on the issue.

The Recorder's Dan Levine also homes in on that case, Laird v Tatum, but he includes some of the internal correspondence that shows the personal side of Rehnquist. Much of it is between Rehnquist and then-Chief Justice Warren Burger, whose management of the Court was a constant source of frustration to the other justices.

Early in his tenure, Rehnquist tried to liven things up at the Court, Levine writes. One suggestion was coffee hour after oral argument.

"I think that the practice which each of us appears to follow at the close of a day of oral argument -- plodding back to his own individual salt mine -- is bad for morale," Rehnquist wrote in a letter to Burger in 1973, a year after he joined the Court.

Rehnquist, who had a flair for drama (remember the gold stripes he'd later add to his robe?), also proposed a skit or variety show by the clerks. It was something he eventually would institute.

"I would enjoy seeing what each annual crop of law clerks, together with such help from the Justices that they might wish, could do in the way of a gridiron show or other parody or satire on the court," he wrote.

Burger's reaction, Levine writes, was not enthusiastic. A coffee hour might be "feasible" one day a week, Levine writes of Burger's response, but "my own attendance would be brief or rare, or both. There just isn't time."

Like other justices—notably Lewis Powell and Sandra Day O'Connor—Rehnquist also was wary of William Brennan, who could be crafty in his opinions. Levine discovers some evidence of that, in a memo to Rehnquist from a law clerk, who apparently was following marching orders: "I have read over Justice Brennan's proposed questions in Pipefitters, with an eye for any omissions or unfair phraseology."

But as interesting as these tidbits are, it appears from these reports that the collection is more along the lines of the Marshall papers, and not the treasure trove of information found in the Blackmun papers.

Liptak and Glater characterize the documents as "dry as the pages themselves." Levine says the case files "shed little light on what drove his decision-making."

By contrast, Blackmun appears to have saved everything—every letter, memo, note, directive from his law clerks—and the overall impression of him that lingers is not a positive one.

But Blackmun's notes are an astonishing resource, and they've helped clarify much confusion about the respective roles of the justices. It was in the Blackmun papers, for example, that I found ample proof that Justice Clarence Thomas was grossly and unfairly mischaracterized early in his tenure.

Thomas, contrary to early reports, never blindly followed Antonin Scalia. In Thomas's very first term, it was Scalia changing his vote to join Thomas, not the other way around. The proof is in the Blackmun papers and his detailed conference notes. Say what you will about Harry Blackmun as a Justice, but he was a copious note taker.

Rehnquist, it appears, didn't preserve such detailed notes. Nor did he permit Hoover to release as many files as Blackmun. The release of the Blackmun papers infuriated more than a few justices, since they covered cases that were pretty recent—and involved a majority of the sitting justices. Most vowed then that their own papers would not be publicly released until the death of every justice who was sitting with them in a particular term.

Rehnquist dictated that his files become public only on that condition. That means we only have access to cases over a three-year period, since John Paul Stevens joined the Court in 1975.

When Stevens dies, additional papers will be released, but not many. Assuming Stevens dies before Sandra Day O'Connor, who joined the Court in 1981, Hoover will release only six additional years of documents.

We've seen many of the memos already in the Blackmun papers, which end with Blackmun's retirement in 1994. But don't expect to see Rehnquist's papers from 1994-2005 for a long, long time. O'Connor, Antonin Scalia, Anthony Kennedy, David Souter, Thomas, Ruth Bader Ginsburg and Stephen Breyer all will have to die first.

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