Though Chief Justice William Hubbs Rehnquist has stood in the center of the most powerful tribunal in the world for more than 18 years, his life is not an open book.
The Supreme Court: How It Was, How It Is, Rehnquist’s personal revelations don’t go much beyond a brief sketch of his time paging through petitions for certiorari as a law clerk for Justice Robert H. Jackson in the early 1950s. He never wrote a broader memoir because, as he put it in a 2001 interview with Charlie Rose of PBS, “to be interesting, you know, you have to say that ‘this is a good person,’ ‘that’s a bad person,’ ‘that’s a medium person,’ ‘he really let me down here.’ And I just don’t want to do that.”
According to those who know him best, this attitude simply reflects the laconic nature of a second-generation Swedish-American from the pre-Oprah age. Rehnquist, the man who once ran a small-stakes poker game in a Senate cloakroom during breaks in President Bill Clinton’s impeachment trial (over which he was presiding), has never taken himself too seriously. “He feels uncomfortable” talking about himself, says Barton H. Thompson Jr., Stanford’s Robert E. Paradise Professor of Natural Resources Law, who served as a law clerk for Rehnquist at the Supreme Court in 1977-78.
Yet, as Rehnquist, now 80 and battling thyroid cancer, nears the end of a 33-year career on the court, others are assessing him more than ever before. Not only has speculation swirled about who might replace him, but his personal story has now merged with the country’s history. There is wide recognition, even among those who disagree with his conservative ideology, that Rehnquist is one of the most influential chief justices ever. Having served more than 18 years as chief (following 14-plus years as an associate justice), he has placed his stamp on nearly every area of American law. His biography is about to be scoured for clues to his decisions on the bench.
And when the book on Rehnquist finally is written, Stanford will merit a special chapter. Palo Alto was much more than the place where Rehnquist racked up three degrees: a bachelor’s and master’s in political science, plus a law degree. Crowded with others who, like him, were there on the G.I. Bill, Stanford was the place where he settled back into American life after three years in uniform. It was where he met his future wife. It was where he made friends such as a rancher’s daughter named Sandra Day and her future husband, John O’Connor. It was where a brash, unformed conservative encountered professors who helped him intellectualize his beliefs—and steered him to his crucial first job in Washington, D.C.
The tall, gangly 21-year-old from Wisconsin didn’t have much of an academic agenda when he arrived at Stanford in the fall of 1946. As an Army Air Corps weather forecaster, Sgt. Bill Rehnquist had been stationed in Casablanca, Cairo and other North African locales. He liked the warm, dry climate in those postings. And he didn’t like the cold and damp he had known as a boy growing up on the shores of Lake Michigan, then in the winter he spent at Kenyon College in Ohio before he got drafted in March 1943. So, for the brainy kid they’d called “Bugs” back home at suburban Shorewood High School, just outside Milwaukee, weather was a key criterion in selecting a college. He found his way to Northern California.
SWORN TO SERVICE: Rehnquist presided over the Senate’s impeachment trial of President Bill Clinton in 1999. (Photo: Getty Images)
He was already a confirmed political conservative by the time he got to the Farm. His father was a wholesale paper salesman; his mother was a freelance French translator who worked for small businesses. Under their influence, he had absorbed a staunchly anti-New Deal Republican worldview. As a soldier in North Africa, he had read The Road to Serfdom, the 1944 antisocialist manifesto by Austrian free-market economist Friedrich A. Hayek. “It made quite an impression on me,” Rehnquist told C-SPAN’s Brian Lamb in a 2001 interview.
He had not thought systematically about the law or the Supreme Court until his freshman year, when he took a course taught by Charles Fairman, a demanding teacher and exacting scholar of constitutional law and court history. Stanford graduates from Rehnquist’s time recall Fairman as a brilliant and imposing figure. Paul Davies Jr., ’52, who took Fairman’s course and later became friends with him, recalls the professor as “quite austere, but as you came to know him, the more you’d like him. He had a dry sense of humor. . . . He tended to teach in a very descriptive manner, trying to communicate to you how each justice had grown up and what made him tick.”
A FAIR TO REMEMBER: Fairman was influential in shaping the future chief justice’s views. (Photo: News Service)
One of those who embraced Fairman’s teachings was Rehnquist.
“Charles Fairman is a big piece of the story of Bill Rehnquist at Stanford,” says John Q. Barrett, a law professor at St. John’s University who interviewed Rehnquist as part of his research on Justice Jackson. “He was his very influential role model and teacher as an undergraduate.”
Fairman’s scholarly specialty was the history of the Supreme Court during Reconstruction, a relevant and much-debated topic in post-World War II America. The war with Hitler’s Germany had been waged against an explicitly racist totalitarian state. That conflict helped bring to the fore simmering racial ferment in the United States. Segregation was under attack in the courts from Thurgood Marshall and his NAACP legal team. Not long after Rehnquist matriculated at Stanford Law School, the Supreme Court struck down the University of Texas’s segregated law school in Sweatt v. Painter, a precursor to Brown v. Board of Education.
In the fall of 1946, Fairman was developing views on the 14th Amendment that would prove influential among conservatives of the day, though Fairman himself did not identify with the political right. The amendment, adopted in 1868, provides: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fairman argued that the framers of the amendment had not intended to apply the Bill of Rights to the states. The “privileges and immunities” of citizens the amendment protected were limited to such matters as the making of contracts and service on juries, he said. The federal government’s powers to fight discrimination or other abuses by the states would, accordingly, be limited. “This is not merely an academic question,” Fairman wrote in a seminal 1949 Stanford Law Review article. “It presents itself insistently today because Justices of the Supreme Court are prepared to make decisions turn upon their reading of the historical record.” Indeed, he wrote in direct rebuttal of Justice Hugo Black, who was taking the opposite view of history in his opinions at the court.
Fairman’s narrow interpretation of the 14th Amendment likely came through in lectures to undergraduates such as Rehnquist. “He clearly taught that the 14th Amendment did not apply the Bill of Rights to the states,” Davies recalls.
Throughout his career, Rehnquist has espoused a view of the 14th Amendment that emphasizes the rights of states to deal with issues ranging from capital punishment to various forms of discrimination, free of federal interference. As a law clerk for Justice Jackson, he told his boss in a memo that Plessy v. Ferguson, the 1896 decision that had upheld “separate but equal,” should be affirmed. (When questioned about the memo during a Senate Judiciary Committee hearing about his nomination to the court in 1971, Rehnquist said this was a restatement of Jackson’s views and did not reflect his own.)
In a voting rights case, Terry v. Adams, he wrote Jackson that “It is about time the Court faced the fact that the white people in the South don’t like the colored people; the Constitution restrains them from effecting this dislike through state action, but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head. To the extent that this decision advances the frontier of state action and ‘social gain,’ it pushes back the frontier of freedom of association and majority rule.”
Rehnquist voiced similar views as a young lawyer in Phoenix, where he testified in 1964 before the city council against an ordinance that banned discrimination in public accommodations. As an assistant attorney general in the Nixon administration, and later as a justice, Rehnquist interpreted the amendment in a way that fueled his disagreement with the liberal Warren Court’s decisions advancing the civil rights movement and expanding the rights of criminal defendants.
IN THE ROOM: Rehnquist in his chambers with his staff of clerks in 2002. (Photo: David Hume Kennerly/Getty Images)
His dissent in Roe v. Wade in 1973 spoke directly to the issue of states’ rights. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment,” he wrote. The drafters, Rehnquist continued, “did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter.”
As late as 2000, writing for the court in a ruling that struck down a provision of the Violence Against Women Act permitting rape victims to sue their attackers in federal court, Rehnquist cited a string of late-19th-century cases that construed the 14th Amendment narrowly. They were still good law, he wrote, in part because the court that produced them “had intimate knowledge and familiarity with the events surrounding the adoption of the Fourteenth Amendment,” and hence of its framers’ intent.
“That is the shadow of Fairman,” says Akhil Amar, a professor of law at Yale who has written about the history of the amendment.
Generally, though, Fairman’s view of the 14th Amendment has not prevailed, either in the Court’s jurisprudence or in academic circles. “For a time it was voguish to assert that Black’s argument had been decisively refuted by Prof. Charles Fairman. . . . It isn’t so voguish anymore,” wrote constitutional scholar John Hart Ely—dean of Stanford Law School from 1982 to 1987—in his landmark 1980 book, Democracy and Distrust.
Even Rehnquist came to accept much of modern civil rights law. In 2003, for example, he wrote an opinion for the Court ruling that Congress had the power to enforce gender discrimination laws against the states.
Fairman, who died in 1988, probably would not have approved of some of the ways in which his views were applied. In the ’50s, he publicly supported the Court’s decision in Brown. He felt “there was no way to defend ‘separate but equal,’ ” Davies recalls. According to letters Fairman wrote to Daniel Lazorchick, ’53, PhD ’67, one of his former graduate students at Stanford, Fairman donated money to the Democratic presidential candidates in 1984 and 1988. If Fairman had had his way, Walter Mondale would have become president in 1985, and Ronald Reagan would not have been around to appoint Fairman’s former student as chief justice in 1986.
Nevertheless, Rehnquist has acknowledged his debt to his old professor—on the opening page of his latest book, Centennial Crisis: The Disputed Election of 1876 (Knopf, 2004), an account of the deadlock between Republican Rutherford B. Hayes and Democrat Samuel Tilden. “I dedicate this book to Charles Fairman, who first introduced me to the Supreme Court in an undergraduate course in Constitutional Law at Stanford University,” Rehnquist writes. “His published work in the era of the Court with which this book deals has been an important source for it.”
Applying credits earned at Kenyon and diligently working through the summers, Rehnquist picked up his bachelor’s and master’s degrees in political science in 1948. Then he left for Harvard, where Fairman had studied, with the idea of gaining a PhD in government. But something about Cambridge did not agree with him. Perhaps it was the cold weather; perhaps it was the liberal politics of what detractors called “the Kremlin on the Charles.” “I remember him saying he did not like Harvard, and he did not like political science,” says Craig Bradley, a professor of law at Indiana University who clerked for Rehnquist in the court’s 1975-76 term. “He didn’t think much of the professoriate.”
Bradley says Rehnquist saw academics generally as “liberal blatherers.” By the fall of 1949, he was back at Stanford, enrolled at law school.
There would have been less so-called blathering at Stanford Law School in that pre-Warren Court time. Constitutional law was still relatively undeveloped as an academic subject, and most time at law school was spent on the nuts and bolts of torts, contracts and property. As a student, Rehnquist was widely regarded as both outlandishly conservative and outlandishly bright. He became an editor of the Law Review, on his way to graduating (early, in December 1951) with the top grades in the Class of 1952.
Though Fairman was close to justices Felix Frankfurter and Jackson, he was not the man who opened the door to a Supreme Court clerkship for Rehnquist. That honor belongs to Phil C. Neal, Fairman’s friend who was teaching at the Law School when Rehnquist was a student. Neal was also a former law clerk for Jackson. In those days, it was unusual for a Stanford graduate to land a clerkship on the Supreme Court. Warren M. Christopher, JD ’49, who clerked for Justice William O. Douglas in 1949-50, was one of the first. But Neal, who taught administrative law, thought Rehnquist was Stanford’s top student of that year’s crop. “He was a very strong student, a pretty mature fellow,” Neal, now 85 and practicing law in Chicago, recalls.
REMEMBER WHEN: Rehnquist and his wife, Nan met while he was an RA. (Photo: Terry Ashe/Time Life Pictures/Getty Images)
Seeking to increase Stanford’s representation on the court’s staff, Neal arranged for Jackson to meet with Rehnquist during the summer of 1951, when Rehnquist was attending summer classes and Jackson was making his annual pilgrimage to the Bohemian Grove in Monte Rio, Calif.—with a detour to Palo Alto to visit Neal.
As Rehnquist tells the story in his book on the Supreme Court, he “met with the justice in one of the faculty offices, and his pleasant and informal demeanor at once put me at ease.” Jackson asked if Rehnquist’s name was Swedish. That led to some reminiscences about Jackson’s old Swedish clients in upstate New York. “I walked out of the room convinced that he had written me off as a total loss in the first minutes of our visit,” Rehnquist wrote. But in November, Rehnquist got a letter from Jackson informing him that his chambers could no longer make do with just one law clerk, and inviting him to come to Washington for a clerkship that would last from February 1952 until June 1953.
Rehnquist wrapped up his studies and drove east, in a 1941 Studebaker Champion with no heater.
Important as these contacts were, Rehnquist would probably say that the most important person he encountered at Stanford was Natalie “Nan” Cornell, ’51. They met during the summer after Rehnquist’s second year of law school. He was working as an RA, and Cornell—an undergrad at the time—was attending summer school to make up for a quarter she had missed the previous year while caring for her ill father. When he went to Washington to work for Jackson, she came along, taking a job at the fledgling Central Intelligence Agency. In 1953, after the Jackson clerkship ended, the couple married and moved to Phoenix, where Rehnquist practiced law for the next 16 years. They had three children, James, Janet and Nancy.
BACK ON THE FARM: Rehnquist and O’Connor returned to the Law School in 2002 for a mock trial of Lizzie Borden. (Photo: Linda A. Cicero/News Service)
In keeping with Rehnquist’s own attitudes about privacy, relatively little is known to the public about his wife, who died in 1991 at the age of 62, of ovarian cancer. A native of San Diego, she served as director of volunteer services at the National Lutheran Home for the Aged from 1972 to 1980 and president of the Home Auxiliary from 1985 to 1987. In Phoenix, she was active in the Junior League women’s charity, whose president for a time in the early ’60s was another Stanford lawyer who had settled in Arizona: Sandra Day O’Connor.
According to friends, Nan’s death was a heavy emotional blow to Rehnquist; certainly the playful closeness of their relationship is evident in one of the few atypically personal remarks he has ever made publicly, to an interviewer from the New York Times Magazine in 1985. One of his and Nan’s favorite things to do, Rehnquist reported, was to read aloud to each other. “We’ve covered probably 20 books in the last year and a half or so; we’re just finishing up William Dean Howells’s The Rise of Silas Lapham,” he told the interviewer, John A. Jenkins.
O’Connor, of course, is the Stanford person whom the media have most frequently connected with Rehnquist. During a round of interviews to promote her memoir, Lazy B: Growing Up on a Cattle Ranch in the American Southwest (Random House, 2002), O’Connor was obliged to deflect repeated inquiries about the few dates she and Rehnquist went on while in school. Their friendship was of a purely collegial and professional nature—unusual, perhaps, for their generation, in which the vast majority of lawyers were men. When the Reagan administration was searching for a woman to put on the Supreme Court in 1981, Rehnquist gave O’Connor, who was then a little-known appellate judge in Arizona, his back-channel endorsement. Although O’Connor has taken a more centrist position on several highly contested cases, she and Rehnquist have voted together most of the time. And they have returned frequently to Stanford together; in 2002, they presided over a mock retrial at the Law School of the alleged ax murderess Lizzie Borden.
When Rehnquist was diagnosed with cancer in October 2004, observers of the court began to speculate about when he might retire, under what circumstances, and whom President Bush might appoint to replace him. As Washington prepared for the President’s second swearing-in on January 20, many wondered how Rehnquist, who was supposed to administer the oath of office, might hold up. Undergoing radiation and chemotherapy treatments, he had not been seen in public for weeks, and it was by no means certain he would be physically able to appear as promised.
WELCOME COMMITTEE: Rehnquist has administered the oath of office to three presidents. (Photo: Bob Pearson/AFP/Getty Images)
Inauguration Day dawned bright and cold. The dignitaries gathered near the steps of the Capitol, and then there he was, making his way to the podium. He was thinner than usual, leaning on a cane, but smiling broadly. The crowd rose in a standing ovation.
As Rehnquist settled into a folding chair at the front of a section reserved for the nine members of the court, someone behind him reached out a gloved hand and gently patted him on the shoulder. It was Sandra Day O’Connor.
At the appointed time, he removed the black beret he was wearing, stood and approached the president. Then the top student of the Stanford Law School Class of 1952 performed this important duty one more time, and left the stage.
Charles Lane covers the Supreme Court for the Washington Post.
