Video and Transcript: 2001 FOX Interview With Rehnquist

FOX News' James Rosen interviewed Chief Justice William H. Rehnquist on May 21, 2001.

To view video of this interview, click below.

Part I | Part II | Part III | Part IV | Part V | Part VI

The following is a transcript of that interview.

JAMES ROSEN, FOX NEWS: Mr. Chief Justice, thank you so much for inviting us here to talk with you about your newly revised, newly reissued book entitled "The Supreme Court."

We understand this is a rare occasion, which leads me to begin by asking why is it that Supreme Court justices grant so few interviews to us reporters?

CHIEF JUSTICE WILLIAM H. REHNQUIST: Well, I don't think they would have much of interest to talk about. We have a practice of, you know, not discussing cases that are currently before us or opinions that have come down. And I don't know that we would have a lot to say otherwise.

ROSEN: Is there some mystique to the Supreme Court that the institution feels necessary to maintain through, for example, the banning of cameras in the courtroom, and so forth?

REHNQUIST: I don't know if you'd call it a mystique or not. The majority of us feel that we should not have television because it doesn't really give a full account of what's going on in the court. But the, as you know, the court sessions are open. They're open to the public. They're very well covered by the press, so that the print media certainly has complete coverage of it.

ROSEN: Let's get straight to your book then. Will those individuals who are always looking for clues as to how you might rule on the bench find any in this book?

REHNQUIST: I don't think so. There may be some parts of the last chapter where I sum up, you know, what the court's job is or something like that. But I've tried to be as impartial and detached as I can in treating various eras of the court.

I certainly, I think, show my enthusiasm for the work of John Marshall, who is called the "great chief justice." But I think that's an enthusiasm that's shared by almost every student of the court.

ROSEN: This is by no means dry history. You talk about one justice who left the court after he suffered a mental breakdown?


ROSEN: Another died on the bench while reading an opinion, is that correct?

REHNQUIST: Right, right.

ROSEN: Who were those justices?

REHNQUIST: Justice Charles Whittaker, who was appointed by President Eisenhower, found the work just either too difficult psychologically perhaps and was in Bethesda and finally took retirement. And Harlan Stone, who was the chief justice from 1941 to 1946, had a fatal seizure while he was reading an opinion from the bench. I think he died that evening.

ROSEN: Does that sort of give you the jitters every time you get on the bench to read an opinion?

REHNQUIST: No. No, I figure when your time has come, your time has come, and whether it's on the bench or off the bench.

ROSEN: We'll talk about John Marshall for a second. You write that John Marshall helped make the court a genuinely co-equal branch of the government. Who was John Marshall? How did he accomplish that?

REHNQUIST: Well, John Marshall was the fourth chief justice of the United States. He was appointed by John Adams in 1801. And up to that time, the court was really a very junior partner in the tripartheid federal government -- the executive, the legislative and the judiciary.

It had decided on the average of maybe six cases a year. There just wasn't much business. The first chief justice John Jay had been sent as an ambassador to England for a year and apparently wasn't missed at all. The next chief justice who served was Oliver Ellsworth. He was sent as an ambassador to France and fell ill over there after being gone almost a year.

So that when Marshall became chief justice, it just was not a particularly authoritative or influential institution. And partly with his decision in Marbury against Madison, which said that the federal courts have the power to declare an act of Congress unconstitutional, and a number of other opinions that he wrote, he made the court a genuinely co-equal branch.

He served for 34 years from 1801 until 1835.

ROSEN: It's hard to overestimate the impact that we still feel today from Marbury versus Madison, isn't it?

REHNQUIST: It's the fountainhead of all our constitutional law. If it weren't for that case, or some other case like it, the Supreme Court of the United States and the federal courts would be very much like the English courts -- or at least like the English courts have been up until very recently. You interpret acts of Congress. You interpret the common law. But when parliament has spoken, that's it.

ROSEN: There were 15 presidents during a time there were 63 years, when we only had two chief justices, isn't that correct?

REHNQUIST: That is absolutely correct.

ROSEN: Who were they?

REHNQUIST: You want me the 15 presidents or the two chief justices?
The two chief justices were John Marshall and Roger Taney. Taney was appointed by Andrew Jackson after Marshall died in 1835. He served until 1864. He served until he was 88 years old. But I think one of the reasons he stayed so long, there was no retirement system then, and he simply needed the government pay to live on.

ROSEN: Let's talk about two episodes from the Taney court. The first is a case called -- and help me if I'm getting the pronunciation wrong. The first is a case called Gelpcke v. Dubuque, Iowa, from 1864.

In this, the Iowa Supreme Court, through its rulings, essentially allowed the state of Iowa to welsh on the interest that the state owed to some citizens who, in good faith, had bought railroad bonds for the city of Dubuque. And the U.S. Supreme Court overruled the Iowa Supreme Court.

And in your book, you criticize the U.S. Supreme Court for that. You write, "The decision of the Supreme Court of Iowa may have been improvident and ill-considered in the extreme, but these facts alone did not warrant the Supreme Court of the United States simply setting the Iowa decision at naught." You write, "The Supreme Court has no generalized mandate to do justice."

I think most Americans might find that a startling concept. Don't they think of the Supreme Court as the final, ultimate hall of justice?

REHNQUIST: Well, they very well do so and, in a sense, it is. There are all sorts of provisions of the Constitution that are designed to produce justice -- the Bill of Rights and the 14th Amendment and other provisions of the Constitution. And when the Supreme Court interprets those, it has a very valid basis for saying this violates the Bill of Rights. This violates the equal protection of the laws, or it violates the due process of law.

But, of course, in 1864 none of these provisions were in effect as against the state, so that what the Supreme Court had to rely on was kind of an overriding concept of, quote, "natural justice," and that really isn't a proper providence for a court.

You've got the Constitution that's adopted by the people. They say these rules are going to govern everything, including Congress and including the court. But for the courts to come along and say, in addition to that, you know, we just don't like what happened here. We think it's, quote, "unjust" is giving them a rather subject mandate that I think many people, if they fully understood it, would find troubling.

ROSEN: Even if the court was righting a genuine wrong in some way?

REHNQUIST: Well, but who's to decide it's a genuine wrong? I mean, the Supreme Court of Iowa says it's not a wrong, and so the Supreme Court says it is a wrong.

Well, unless you can point to some text somewhere that both of you are working with, it's just one person's opinion against the other. And of course, the Supreme Court of the United States is the supreme authority, as it demonstrated in the case of Gelpcke. But I've always admired Samuel Miller for his very solid dissent in those cases, just kind of along the lines that I'm talking about.

ROSEN: The other case from the Taney court that, of course, is still with us today in some ways, 1857, the Dred Scott decision. In the Dred Scott decision, the Supreme Court held that Congress could not prohibit slavery in the western territories, correct?


ROSEN: Four years later, we have the first shots fired at Fort Sumter in the Civil War. You wrote that the Dred Scott decision may have settled the question of congressional authority to exclude slavery in a strictly legal sense, but the decision -- the Dred Scott decision, you write, "exacerbated rather than ameliorated the clash of opinion over slavery." Is that the court's aim -- to settle national clashes of opinion so the country can move forward?

REHNQUIST: Well, again, you don't want to state that too broadly. There are lots of national clashes of opinion that have to be settled by Congress or by elections, by the election book president, something like that. It's not up to the court to be the final arbiter of those things. But the court, in the Dred Scott case, did hold that the Missouri Compromise of 1820 was unconstitutional. And as Lincoln said, we accept the decision for what it is, but we have every right to ask that it be reconsidered later.

ROSEN: Slightly off topic -- did the Supreme Court do the same thing, that is, exacerbate rather than ameliorate a growing clash of opinion in Roe v. Wade with abortion as the issue instead of slavery?

REHNQUIST: Well, that's really beyond the scope of the book since I stop in 1960 and I participated in that decision, so I don't think I would want to comment further on it.

ROSEN: Franklin Delano Roosevelt placed the most justices on the Supreme Court of any president, is that correct?

REHNQUIST: I think he's next to George Washington. The court was small in Washington's day, but there were retirements. I think Washington -- FDR appointed eight, and I think Washington appointed something like 10 or 11.

ROSEN: OK. Yet one might gather from your book that, in your view, FDR was the greatest threat to the Supreme Court of any president. Is that true, in your view?

REHNQUIST: I think probably so, with his -- he called it a court reorganization plan, and his opponents called it a court packing plan. He was unhappy with the decisions that were coming out of the court and, from his point of view, rightly so. The court was adhering to a now-abandoned constitutional theory and holding New Deal legislation unconstitutional.

But instead of waiting it out, as he was finally forced to do, and as people retired or died, appointing their successors, he wanted to get in there right away.

And so he proposed this plan. There were six of the nine justices who were over 70 at that time. And he proposed that for every justice over 70 who didn't retire, the president should have the authority to appoint an additional justice, so that it could go up to 15. You wouldn't get rid of the ones who were over 70, but they would have kind of a counterpart appointed by him.

And everybody thought the plan was going to be passed by Congress, because FDR had just been re-elected with an overwhelming majority. He carried 46 of the then-48 states. Only Maine and Vermont voted Republican. And the Senate -- there were something around maybe 16 Republicans out of 96 in the Senate. And the House was four to one Democratic.

So even though many people had reservations when he first proposed the plan, they said, "Well, he's going to get it because they've given him everything else he wanted in the way of legislation."

ROSEN: Was this attempt by Franklin Roosevelt to pack the Supreme Court anti-democratic?

REHNQUIST: I suppose you could argue it both ways. You could say that he wanted to put people on the court who would sustain the acts of Congress, and since Congress is democratically-elected, it would enable more democratic legislation, with a small "d," a social legislation -- call it that -- to survive.

So you could say that it was pro-democratic in that sense.

ROSEN: Justices Louis Brandeis and Oliver Wendell Holmes sat together for 16 years on this court, ending in 1932.


ROSEN: How, on a day-to-day basis, do Americans feel the impact of, say, two giants like Brandeis and Holmes?

REHNQUIST: Certainly their influence is still felt today. I would say primarily in their dissent in the First Amendment cases right after the first world war, where the court itself gave a very narrow construction to the First Amendment, to freedom of speech and freedom of the press. And they dissented in several of those cases.

And Holmes, of course, devised the clear and present danger case in the Schenck case, where the court upheld the conviction of people who were urging others to dodge the draft. And Brandeis wrote several jurisdictional opinions perhaps that are less well-known. Some of Holmes majority opinions are less well thought of now than perhaps when he wrote them.

ROSEN: Is there a justice who Americans feel the impact of on a daily basis in their everyday lives more perhaps than any other?

REHNQUIST: I don't think you could pick out any one. But certainly, I think both Justice Brennan, Justice Black had a very profound effect on the way that the Warren court expanded individual liberties and made probably other developments in the law.

ROSEN: You clerked for Justice Robert Jackson.


ROSEN: What is his role in the history of the court?

REHNQUIST: Well, he went on the court, I think, as a New Deal liberal. He was a friend of FDR's and was attorney general, solicitor general, argued many cases before the Supreme Court where New Deal legislation was being challenged.

And when he first went on the court, I think he was still somewhat of that persuasion, though he always had, I think, a more skeptical frame of mind and perhaps less a cheerleader than some of the other appointments. But then he went to Nuremberg for a year, and with the Allies, I guess the United States principal prosecutor in the Nuremberg trials.

And he came back from Nuremberg, and I think he had seen Europe just totally devastated by the war and law and order not easily enforced. And I think after he came back from Nuremberg -- and this is just my speculation, because he certainly never told me this -- I think he was a good deal more concerned about the need for order as well as the need for liberty.

ROSEN: You talk in your book about the steel seizure cases...


ROSEN: ... in which the Supreme Court held that President Truman did not have the authority during the Korean War to seize certain steel mills for production purposes.


ROSEN: You also mention that you think that this was a case, the steel seizure case, where the tide of public opinion had a very appreciable impact on how the Supreme Court ruled. How did that work? And has that happened since?

REHNQUIST: The way it worked in the steel seizure case was that President Truman ordered Secretary Sawyer to seize the steel mills because there was a labor dispute there. And the steel mills went into the district court here and asked for an injunction against the seizure. And there were a lot of technical reasons why an injunction perhaps shouldn't have been granted, but the government came in to argue the case on this very broad basis that the president of the United States had all the powers enjoyed by George III unless they were taken away from him by the Constitution.

ROSEN: How did that go over?

REHNQUIST: It went over like a lead balloon, you know, not just for the judge, Judge Pine, who was sitting in the case, but the press just came down on him terribly hard. And that tended to color the case, even though the government quickly changed its approach. And by the time it got to the Supreme Court, they weren't arguing that any more, but it kind of colored the whole background of the case.

And the district judge ruled against them and granted an injunction, which required them to go right away to the Supreme Court. And the whole thing was started, was litigated and was over in about two and a half months. And I think that public opinion was quite revolted by the government's original position and never quite left the case.

ROSEN: Have you seen any occasions since the steel seizure case where the tide of public opinion had any appreciable impact on how the Supreme Court ruled?

REHNQUIST: Nothing quite that dramatic.

ROSEN: Pentagon Papers?

REHNQUIST: I wasn't on the court at that time, so I really -- I don't think I would have an opinion on that.

ROSEN: I thought it was those cases when you were on the court where you definitely don't have an opinion. I'm trying to help...

REHNQUIST: Well, OK, but the Pentagon Papers case comes up in the hiatus between the end of my book in 1969 and the time I'm...


REHNQUIST: And I'm just trying to think whether public -- I don't know that there was a tremendous amount of public opinion on one side as opposed to the other of the Pentagon Papers case. Certainly, the academic community and many others were very much opposed to what the government was doing in the Pentagon Papers case. But I think probably it was a time still when the Cold War was on and so forth, that there was support from the public.

Actually, I had a very minor role in that case when I was in the Justice Department. I had just come back from a back operation. I was just working half-time. And we had a staff meeting one day, and John Mitchell said that one of us -- somebody -- was going to have to call Ben Bradlee and tell him if The Post started doing this, we would get an injunction against him.

And he said, "I'm leaving this noon." And the Dick Kleindienst, who was the deputy, said, "Yes, somebody's going to have to do it, but I'm not going to be available." So then they turned to me. And since I was outranked by both of them, they said, "You're going to have to call Ben Bradlee." So that was my participation in the Pentagon Papers.

ROSEN: You called Ben Bradlee, who was the executive editor?

REHNQUIST: The executive editor of The Washington Post.

ROSEN: And told him?

REHNQUIST: I told him that the government would seek an injunction against The Post if they published it. And he said, "Thank you. Thank you for telling me."

ROSEN: You devote one chapter in your book to the Warren court, which you write, quote, "engaged in a dramatic expansion of constitutional protections of individual liberty and minority rights." A dramatic expansion of constitutional protections.

Was that bad for the country?

REHNQUIST: I can certainly think of some cases which were fairly debatable. I've always regarded Miranda as fairly debatable. But cases like Brown v. Board of Education, Gideon, others, they were changes, but I think certainly changes for the better.

And I think almost all of the decisions of the Warren court, with very few exceptions, have been accepted and become part of constitutional law. Last year, our court was urged to overrule the Miranda decision. We declined to do so.

ROSEN: By what vote?

REHNQUIST: I believe it was 7-2.

ROSEN: When you were seated on the high court, you were quoted as saying that you thought the Warren court had committed excesses in constitutional adjudication and that you would feel that in ruling on the cases that would come before you, you would try to lean the other way a little bit. Was that an accurate quote? Is that how you felt about the Warren court?

REHNQUIST: I don't know whether it's an accurate quote or not. It certainly doesn't summarize the feeling I have after the time I've been on the court.

But, again, my present feeling about the Warren court really shouldn't be involved because I've tried to be as detached as I can in the book.

ROSEN: Did your estimation for the Warren court grow then, as you served longer on the bench?

REHNQUIST: I think it probably did, yes. Partly out of respect for stare decisis, that is the principle that once an issue has been decided it should stay decided. You can't constantly be re-litigating things without doing a lot more damage than just leaving them in place.

ROSEN: We've covered some of the history of the court, of course, in thumbnail fashion. I'd like to talk about how the court works, which you get into in your book quite a bit.


ROSEN: First of all, why do you think we Americans sue each other with the frequency that we do?

REHNQUIST: Well, you should ask your father that.

REHNQUIST: (OFF-MIKE) me about this.

But it's a litigious society. And it's hard to know why. I'm sure sociologists or political scientists, maybe economists, would have some explanation for it. I don't have a good explanation for it.

There's a growing tendency, I think, to see one's self as a victim. And if something bad happens to you, it's not your fault. It must be someone else's fault.

ROSEN: And you should be paid for it.

REHNQUIST: Well, certainly a lot of people feel that way, yes.

ROSEN: Have you ever sued anyone or been sued by anybody?

REHNQUIST: I sued someone once. When I was a law clerk, the 16th Street -- I lived way up by Kennedy in the third alphabet on 16th Street. And it was a six-lane street that was four going south and two going north until 9:30, and then it changed to three and three. And I was in the third lane and just after it changed. And the taxi driver was in the wrong lane. He was in the fourth lane, and it was now going north. And so, he cut right in front of me and damaged the fender of my car. So I took it to a repair shop.

And this was 1952. They repaired the fender for $15, if you can believe that. And then I sued the taxi cab driver for $15 because I thought he had been at fault. And so, we came to trial in small claims court. And I got a judgment for $15 against him.

ROSEN: You represented yourself in this affair?

REHNQUIST: Well, my co-clerk helped me.

REHNQUIST: But he couldn't. He was not admitted to the district bar, and, of course, I could represent myself.

ROSEN: More than 7,000 cases, petitions are filed with the Supreme Court each year. But the court decides less than 100 of them, that's almost half the number it used to decide.

Is the court overworked, or are that many frivolous claims filed each year?

REHNQUIST: I would say a large minority of the 7,000 petitions are frivolous in the sense that no lawyer who knows the kind of law that are involved in those cases would think that the Supreme Court should review it.

And we have a practice whereby we have maybe somewhere around 150 cases on each conference list if it's week to week. And I send out at the beginning of the week a list of the cases on that list that I think warrant discussion with a view to possibly granting certiorari, granting review of them. And so maybe there will be 10, 15 cases on my list, and then I circulate that to all my colleagues, and each of them adds to that list any cases that person thinks should be discussed and that I haven't put on.

So we'll come up with maybe a list of 25 to be discussed at conference. That means that there are 125 that no member of the court thought was even worth discussing with a view to granting certiorari.

ROSEN: So, in other words, the cases that get heard tend to be the cases that the justices want to hear, in other words, more or less.

REHNQUIST: Not just more or less.

ROSEN: Precisely.



REHNQUIST: But with one narrow exception. There's appeal as of right from certain kinds of voting rights cases.

ROSEN: So I guess my question about the cert process -- is this an optimal system or an adequate system?

REHNQUIST: I would call it an optimal system. There was a time at the end of the 19th century when the court was handing down 200 opinions a year, but a large number of them were ones that just didn't make any difference at all. They were interpreting state law because the cases were in federal court because the plaintiff was a citizen of Delaware and the defendant was a citizen of Pennsylvania.

And they got way behind. And so finally, Chief Justice Taft -- Taft was president, of course, from 1909 to 1913, and he was chief justice -- the only person who has ever done that -- chief justice from 1921 to 1930. And he went before Congress in 1924 to ask them to give us much more discretion, the kind of thing we're talking about, have the judges have much more of a say in what cases they would hear.

And one of the people on the Senate Judiciary Committee apparently asked him, you know, "Why shouldn't everybody be able to take their case to the highest court in the land?"

And his answer was that, in every one of these cases, there has been one trial and one appeal. And if you're going to have -- he didn't put it this way, but -- a third bite at the apple, there ought to be something more involved than just, "Who is going to win this lawsuit," just justice between the individual litigants. There ought to be some question of public importance that goes beyond this case.

ROSEN: After you decide to hear a given case, you read briefs from the two parties, and then you hear oral argument on the case. Is that correct?

REHNQUIST: Yes, it is.

ROSEN: You've told me that you find today's Supreme Court to be more prone to interrupt oral arguments than perhaps any court that's ever come before it. Is that true?

REHNQUIST: Well, I, of course, don't know how often justices on courts interrupted, other than the ones with whom I've sat as a justice in my years, tenure as a law clerk.

But I think it's probably fair to say that when I came on this court, there were far fewer questions from the bench than there are now. And it's just gradually grown, so that I can't imagine how you could have any more questions from the bench now and still give the lawyers a fair chance to present their argument.

ROSEN: What do you think accounts for this evolution in talkativeness on the high court?

REHNQUIST: I think it's just a matter of personalities, probably. You know, some justices enjoy questioning, others don't. When I was a law clerk, really the only justice who regularly asked questions was Justice Frankfurter. And he had a practice of never reading the briefs before he came on the bench because he thought they would prejudice him. And so, he would ask questions the answers to which would have been very apparent had he just read the briefs. And I think this tended to annoy his colleagues some.

ROSEN: You talk in your book a little bit about the kinds of presentations that you're subjected to during oral argument.


ROSEN: Tell us a little bit about the types of different oral advocates you encounter?

REHNQUIST: Well, if one starts from the bottom and works his way up to the top, the very worst, of course, is someone who reads an argument. And we rarely get that. It's made clear in our rules, we don't approve of it, and we rarely get it.

But then not far from that is the person with the memorized argument that simply can't be distracted at all by anything that a justice indicates might be of interest to him. The person just goes on as if, you know, as I was saying. And then, there are some very able people who know all about the law -- and we always assume that the lawyers know more than we do about the law because they are usually specialists, at least in that case, and we aren't. But the lawyer will go rat-a-tat-tat, rat-a-tat-tat, at a terrific pace...

ROSEN: You have a pet name for that individual in the book? The debating champion, I believe?

REHNQUIST: The debating champion, yes, trying to get as many words in during the half-hour and as many ideas in, not realizing that people listen at a much slower rate than they speak and can absorb things at a much slower rate. And so, it's much better to say fewer words, talk a little more slowly and just leave some of the ideas to the brief, which is perfectly permissible.

And then the very able advocate is one who does that, also gets clues from questions and answers in some detail, even though perhaps he hadn't intended to cover that ground.

ROSEN: After the oral arguments, a few days later -- from each given case that you hear an oral argument -- after the oral arguments, you sit down to conference, and it's just you and the eight other justices. Is that correct?


ROSEN: And the junior justice -- tell me what the responsibilities of the junior justice, the most junior justice, are during conference.

REHNQUIST: Well, when I was a junior justice, I think we were expected to keep the water pitchers filled. But I think that may have gone by the board. But the junior justice's principal responsibility is if anybody knocks on the door, the junior justice gets up to open it and see who is there.

ROSEN: So you got up and got the door for four years during these conferences.

REHNQUIST: I did, yes.

ROSEN: Who is the junior justice now?

REHNQUIST: Stephen Breyer.

ROSEN: How long has he been putting up with that duty?

REHNQUIST: Well, he came on the court in 1994, so seven -- no, it's six-plus years. He's in his seventh year of doing it.

ROSEN: Is he chafing under it?

REHNQUIST: Not visibly, certainly. It isn't too arduous.

ROSEN: You wrote also -- I've seen you say, I should say -- I have seen you say that when you were a junior justice, there almost wasn't a chance for you even to speak.

REHNQUIST: Yes, and I'm sure any person in that position -- the case is really decided by the time anyone ever hears your views on it because you're ninth and everyone speaks in order of seniority.

ROSEN: As chief justice, have you changed that at all?

REHNQUIST: No. I think that we still go in the order of seniority. One thing I have tried to bring to the conference is the idea that no member should speak twice before anybody else speaks once.

There's a little bit of a tendency, particularly in a controversial case -- you know, one member of the court hears someone else further down the line from him say, "ABC," and he thinks that's just all wrong. It's not ABC at all, it's DEF.

Well, his tendency, on occasion, is to say right then, "No, it's DEF," so that two people start getting in an argument before, perhaps, the seventh, eighth and ninth have a chance to say anything.

So what I have tried to bring to the conference is the idea that we'll first go around and hear once from everybody, and then anybody says anything they want to after that.

ROSEN: Is this more or less like a high-powered law firm setting when this conference takes place?

REHNQUIST: Well, I don't think you would describe it as a single law firm. I think it was Potter Stewart, who said that when he first came here, he said to John Harlan that, "It's just like a law firm with nine partners and a bunch of associates," the law clerks. And Harlan told him, "No, it's like nine little law firms." And that's really much more what it is like.

ROSEN: There is a sense in which your job as a justice, not specific to the chief justice, but there is a sense in which the justices have to act a little bit like members of Congress, in the sense that they have to try and persuade their colleagues to agree on language that they're all drafting. Is that correct?

REHNQUIST: Yes, it certainly is.

ROSEN: Do petty, personal antagonisms or ego trips affect the workings of the court? And if so, how bad have you ever seen it get? Is it like high school occasionally, people don't talk to each other?

REHNQUIST: I certainly wouldn't say it was like high school. I think the time when I was a law clerk, there were kind of personal antagonisms on the court, which had, you know, I don't know really the root of them. But there was ill feeling. I don't think there's any ill feeling on our court today. I think we're not just have a civil relationship, but a cordial relationship with one another.

ROSEN: A law clerk to Justice Harry Blackmun, the late Harry Blackmun, wrote recently, quote, "The justices on the Rehnquist court, under the pressure of the conservative anti-Warren court counterrevolution, have broken into self-contained, ideological factions who exchange almost routinely increasingly harsh accusations of hypocrisy and illegitimacy."

A former law clerk wrote this. Is this true?

REHNQUIST: I don't think so. No, I certainly don't.

ROSEN: It is wildly off base?

REHNQUIST: I think it is wildly off base. We circulate memos to one another frequently. And often you will circulate a memo to the entire conference. Sometimes you will circulate just a memo to people who have voted the same way you have in conference to see if they will go along with this particular approach to a case. But so far as hypocrisy is concerned...

ROSEN: Accusations of hypocrisy and illegitimacy.

REHNQUIST: Well, you know, it's a free country and even ex-law clerks have a right to speak for themselves, but I certainly agree with none of that.

ROSEN: In this process where you exchange written pieces of paper and thoughts, is that where you have received Ninograms?

REHNQUIST: You mean circulation from Justice...

ROSEN: What is a Ninogram?

REHNQUIST: I presume it's a circulation from Justice Scalia. I have never referred to it myself as a Ninogram and I don't know that he refers to it that way.


The Supreme Court seems an intensely busy but a very quiet place, physically quiet. When was the last time you or anybody else raised his or her voice in your chambers?

REHNQUIST: I hope a long time ago and I think that's true. There just is no need to raise one's voice.

ROSEN: You write that the individual justices of the Supreme Court do a great deal more of their own work than do their counterparts in the other branches of the federal government. What did you mean by that?

REHNQUIST: Well, it was Justice Brandeis who said that for the first time. He was asked, "Why is the Supreme Court as respected as it is?" and he said, "It's because we do our own work."

And I know from the Justice Department, for example, the attorney general is, by statute, given just countless responsibilities that he can never possibly discharge individually. He has to just depend on assistant attorneys general and other staff to do that work for him and he signs off on it, kind of. And I think -- never having been in Congress, I'm certainly saying what's secondhand, I think, you know, many members of Congress delegate a lot of the legislative responsibilities to their staff and just sign off on something after the staff has pretty well worked it through.

Now, each member of the court works in an individualized way, but I think all of us feel a responsibility not just to tell some law clerk to go out and draft something that will amount to a reversal here, but to go into considerable detail as to just how it's done and then to review it with great care, you know, beginning to end after you get a draft.

And I think, perhaps, Justice Stevens does almost all of his own drafting. I'm not sure that any of the rest of us do. You'd just have to find out by individual inquiry.

ROSEN: The Supreme Court may be the only branch of the three -- or the judiciary, in general, may be the only branch of the three where we require certain intellectual achievement on the part of the people who staff the positions, correct? You have to have a law degree, for one.

REHNQUIST: To be a what?

ROSEN: To be a judge or a justice, right?


ROSEN: Or justice of the Supreme Court even?

REHNQUIST: No, I don't think so. The only person who is required to be learned in the law by statute is the solicitor general.

ROSEN: Isn't that interesting? How so? What must he know, or she know?

REHNQUIST: I don't know what the phrase "learned in the law" means because it's never really been brought into contention, but I presume it means at least a law degree.

ROSEN: We have been talking -- we talked about the history of the court, we talked a little bit, so far, about the workings of the court. We are not, as you know, getting into any specific decisions that you have written or asking you to defend opinions you have written as we would not do that. But where the workings of the court are concerned, I wonder if you can at least assure the American people that the court is now functioning normally and that it has, over the past year, despite the historic unprecedented circumstances the court found itself in Bush v. Gore, did the court work correctly as it should then through that case and is now?

REHNQUIST: Well, that's a contemporary case that comes under my rule of not commenting on a contemporary case. If you want to know whether the Supreme Court is functioning as it should today and as of this term, I certainly would say it has done the work that comes in the same way it has every other term.

ROSEN: And did in that case?

REHNQUIST: No, I'm not going to comment on that case.


Let's talk a bit about your personal experiences in this building. It's been 50 years since you first walked in here.

REHNQUIST: That's right.

ROSEN: February marked 50 years since you first walked in the door here. How is it different? How is it the same?

REHNQUIST: Well, physically it's different because when I was a law clerk, all nine justices had their chambers in the back half of the building, behind the brass gates, so to speak, and there were smaller chambers because, at that time, the chief justice, Fred Vinson, had three law clerks, the other associate justices had two law clerks, and Justice Douglass has one law clerk and each of the associates had one secretary.

So there was a smaller chambers staff. And they could be accommodated in smaller quarters, so that you got all the justices behind the iron gates.

Now, there are -- let's see -- one, two, three -- at least three chambers which are not -- which are in the front of the building: Justice Kennedy, Justice Breyer and Justice O'Connor, and Justice Ginsburg has a suite of her chambers on the second floor.

ROSEN: But aside from the physical layout of the place, how is the court as an institution today different -- if it is at all -- than it was 50 years ago when you first strode in here?

REHNQUIST: Well, there's a lot more constitutional law now than there was 50 years ago. The kind of cases that the court took -- granted certiorari on when I was a law clerk tended to be if it was an undecided question of federal law, perhaps not of great importance, but one which hadn't been decided by this court, and no necessarily disagreement among the courts of appeal. The kind of case like that was granted fairly often, particularly when perhaps three or four justices thought it had been wrongly decided by the lower courts.

Now, that has changed today. We talk among ourselves about not engaging in error correction, which means simply taking a case because you think the result below was wrong. And we generally stay away from that.

ROSEN: So you think there's more respect for established legal precedent today than there was 50 years ago.

REHNQUIST: No, I'm not sure that I think that. But there are so many more decisions coming out today of lower courts that we have to be careful about the kind of cases we take. And we generally don't take an issue of federal law unless there has been an opinion, say, of the court of appeals in San Francisco that comes out one way, and the court of appeals in Chicago coming out another way.

ROSEN: I've heard you say that your favorite part of what you do on the Supreme Court is when you hand down a well-crafted opinion. But I wonder how you savor the impact of a well-crafted opinion or gauge any reaction whatsoever to the opinions that you write.

REHNQUIST: Well, it's very difficult to do. I think as a generalization, the opinions I'd have thought would be most harmful that have been handed down by the court haven't been as harmful as I thought, and the opinions that I thought would be most beneficial haven't been as beneficial as I thought. So maybe the opinions make less of an impact than I think they do.

ROSEN: How could you even gauge whether they had been beneficial or not?

REHNQUIST: You see other cases coming along that involve the same issue. And, you know, in a case that you think -- a decision you think is unwarranted or harmful, you worry there will be expanded -- well, maybe it isn't expanded. And in an opinion that you think is beneficial, you see other cases coming along, and you see, well, maybe it isn't being carried out quite the way you thought it would be, or maybe it just isn't all that important.

ROSEN: Are you still learning on this job?

REHNQUIST: Oh, certainly, certainly.


REHNQUIST: Well, Congress is constantly passing new laws. And, you know, if a case arises under the Fourth Amendment which guarantees against unreasonable searches and seizures, you know, I've probably participated in somewhere between 50 and 100 cases involving the Fourth Amendment. And so, I'm pretty well-aware of all the law there is on that subject.

But then, Congress passes a new law, say the Americans with Disabilities Act, the Antiterrorism and Effective Death Penalty Act, and that is simply right off the reel, so far as we're concerned. We have to become acquainted with it from the bottom up and without any background at all.

ROSEN: We hear it frequently said that we are on the cusp or perhaps in the middle of a new age, a digital age, that we haven't seen the likes of since Gutenberg invented movable type. We hear this, sort of -- maybe it's hyperbole. Maybe it isn't. Maybe we really are in a new digital age.

Do you expect that this age -- sort of, the way you talk about the railroads expanding this country in the 19th century -- this age will, like the railroad cases, be put through the grinder, if you will, of judicial review in some way?

REHNQUIST: Certainly if it has the potential that people think it has. There are bound to be disputes arising under it, and Congress is bound to legislate about it. States are bound to legislate about it. So it will certainly come here the same way that disputes arising out of those other developments and inventions came here.

ROSEN: Does aging affect a great justice the way it would, say, a great athlete?

REHNQUIST: I don't know if it affects them exactly the same way, but certainly, aging affects everybody.

ROSEN: How has it affected you on the court?

REHNQUIST: It's hard to say. Certainly, my memory of names, my recollection of names and putting names and faces together is not what it was.

ROSEN: I'm not going to ask you the question about whether you are considering retirement, because people who are close to you tell me that you have no plans to retire. But I wonder if there's ever been a moment in your 29 years on the Court, where you have pondered retiring for one reason or another.

REHNQUIST: I might have pondered it briefly just before I became chief justice. I would have been eligible to retire in 1989, so I have not only been working for nothing for 12 years, but I have been paying to work, since, if I retired, I would not have to pay Social Security anymore.

And I think, perhaps, if I would have -- had someone else been appointed chief justice, I would have given more serious consideration to retirement.

ROSEN: In three years after that, in other words?

REHNQUIST: It never became that definite, but that order of magnitude perhaps.

ROSEN: To get on the court, you had to go through the confirmation process. I wonder if you ever were personally stunned or affronted by the nature of any of the issues that your opponents raised at your hearings.

REHNQUIST: No, I don't think so.

ROSEN: They were, sort of, contentious hearings.

REHNQUIST: They were, yes.

ROSEN: But you feel they always -- do you feel that your hearings always focused on proper matters?

REHNQUIST: Well, now you're narrowing it somewhat. I think the focus was generally on proper matters.

I remember one of my -- I think it was more the procedural aspects of the thing that troubled me sometimes. And there may be nothing to be done about this. But that, you know, there would be -- I think there were 16 senators on the Judiciary Committee at the time of my hearing and perhaps seven or eight of them would be there. And one would, you know, have a long list of questions, and then one who hadn't been there would come back and, when his turn came, start off with almost the same long list of questions.

And as anybody who has ever tried a lawsuit knows, when you're trying a lawsuit and the witness is under oath, if the cross-examiner asks a question twice, the objection can be made: Asked and answered. Because otherwise it's just laying the foundation for a perjury charge, and you're not going to give exactly the same answer. And so it's thought enough to go over it once. But as one of my advisers told me, perhaps partly in jest, he said, "Don't forget, the Constitution stops at the hearing room door."

ROSEN: There was one case on which you sat and for which you wrote no opinion: the Clinton impeachment trial.

ROSEN: What did you take out of that experience?

REHNQUIST: Well, that's not...

ROSEN: Anything you feel like talking about?

REHNQUIST: Well, you should have interviewed me when I wrote a book. But that was before the Clinton trial.

No, I really don't have anything to say about that.

ROSEN: You're at work on a new book.


ROSEN: When do you expect to have it finished?

REHNQUIST: Several years from now.

ROSEN: And what's the subject?

REHNQUIST: It's the disputed election of 1876.

ROSEN: Was this effort inspired by recent events?

REHNQUIST: No, I was considering it before the recent events.

ROSEN: Do you think anyone will believe that?
A few, sort of, left-field questions, while we have a little bit of time remaining.

Is there a single rock-and-roll record you like?

REHNQUIST: When did rock-and-roll start?

ROSEN: 1955 is the general starting date, Chuck Berry, Elvis, the Beatles, et cetera.

REHNQUIST: Well, I can remember some songs from the '60s, "Ruby Tuesday" and "Henry the VIII."

ROSEN: You're a British invasion fan.

REHNQUIST: To the extent I'm a fan at all, I'm a fan of the British invasion, yes.

ROSEN: Ever the anglophile.
What television shows do you watch?

REHNQUIST: I watch the Weather Channel.

ROSEN: That's from your days at...

REHNQUIST: That's from my days of the Air Force Weather Service. I watch Poirot on A&E. I watch "Diagnosis Murder" sometimes. I like mysteries very much. But those are about the only things I watch regularly.

ROSEN: You must be presented with a fact setting in order to enjoy the thing. Is that the...

REHNQUIST: I don't know that I analyze it. But I like things -- they're suspense. You don't know what's going to happen. And finally, you know, you find the butler did it or whoever did it.

ROSEN: You make fleeting reference in your book to the Kennedy assassination. I wonder why you think that an estimated 80 percent of Americans disbelieve the report put out by Earl Warren's commission, and believe in the existence of a conspiracy to assassinate President Kennedy. Why do you think that belief is so prevalent?

REHNQUIST: I have no idea.

ROSEN: Do you share in it?

REHNQUIST: I don't think so. I realize criticism has been made of the Warren commission report. But I don't spend a lot of time thinking about it.

President Kennedy was assassinated. And this report came out. And until something a lot better is shown, I'm perfectly satisfied with it.

ROSEN: You are one of the last, if not the last, member of the Nixon administration still serving in government. What ought we to think about Richard Nixon? What ought Richard Nixon's legacy to be in history?

REHNQUIST: Well, I think it's a mixed one. Certainly Watergate and its aftermath are a negative aspect to what he did. I think his opening to China, I think some of his other foreign policy things were quite major achievements. I think it's mixed.

ROSEN: Did his acceptance of the pardon from Gerald Ford -- did Richard Nixon's acceptance of the pardon from Gerald Ford constitute, in any formal sense, an acknowledgement of guilt?

REHNQUIST: Oh, I have no idea. An acknowledgment of guilt is something that I suppose it depends on what the person receiving the pardon says.

ROSEN: But merely an acceptance of a pardon, you don't know if that's an...

REHNQUIST: Well, as a legal matter, I really don't know and even less do I know what Nixon felt when he accepted the pardon.

ROSEN: Do you think the American people learned anything about the workings of the criminal justice system from their prolonged exposure to the O.J. Simpson case?

REHNQUIST: I'm afraid if they learned anything, it was a rather negative reaction. I only watched, I think, one episode, but just hearing people talk about it, they were very dismissive.

ROSEN: What have you not accomplished so far in life that you still hope to accomplish?

REHNQUIST: Virtually nothing. I'm 76 years old.

ROSEN: You know, I read up about you to do this interview, and in a lot of the literature throughout the '70s, the '80s, one of the dominant themes that people wrote about you was how young you are: "Rehnquist is only 47. He's going to be the Nixon appointee that survives into the 21st century." Here you are.

Is it weird for you having been the young guy on the court for so long to now find yourself this elder statesman figure or...

REHNQUIST: Well, it's certainly weird but it's a process that anybody goes through growing old. I mean, you don't have to be on the Supreme Court. I don't care whether you're on an assembly line or on a faculty or something else, you go from being very young to being old. It's life.

ROSEN: Anything else you'd like to tell the American people while we have you here?

REHNQUIST: No. I'll tell them this, that I just think I've been extraordinarily fortunate in my life and I'm very grateful for that good fortunate.

ROSEN: Mr. Chief Justice, thank you so much for your time today.

REHNQUIST: Thank you. Thank you.