Oregon State Bar Bulletin — NOVEMBER 2005

Lessons from the Chief
Remembering William Rehnquist
By Jeff Bleich

At the time that I started my one-year clerkship for Chief Justice Rehnquist in 1990, he was — as Michael Manning put it — "the man whom every liberal law student loved to hate." I was a registered Democrat who’d graduated from Berkeley; and so it was a big surprise that he’d invited me to fly out to D.C. for an interview. I was even more surprised by how much I’d genuinely liked him, and that he offered me a job. But over time I came to understand that there was nothing too surprising about it. The Chief was merely passing on one of his rules for living: namely, that life is more interesting if you spend some time with people who think differently than you do. When the Chief passed away a few weeks ago, he left behind 33 years of published Supreme Court opinions, but to me the most important rules he left behind were not the ones in law books. They were a few life lessons that apply regardless of political philosophy.

Spend Your Time With People You Enjoy
Shortly after I applied to all of the justices for a clerkship at the Supreme Court I received a hand-signed letter from the Chief, thanking me for my letter and inviting me to supplement it with any interesting things that I might have left off my resume, such as playing an instrument in a high school band or playing a sport. I was grateful for the temporary non-rejection, and intrigued that he wanted to know more about me than just my class rank and position on law review. But I also doubted that the Chief would seriously care that I’d played the trumpet, pole-vaulted or belonged to a sky diving club. When I came in for my interview, though, he asked me only a few questions about my law review note and some recent cases. Instead, he got right to the heart of the matter and asked me what it was like to pole vault, and how "one manages not to break their neck before you learn to do it right." We then moved on to my undistinguished musical career. I admitted that I was pretty bad at the trumpet, and he allowed that he’d failed at wind instruments too. In fact, he’d tried to teach himself how to play the recorder without success until his children begged for mercy. This pleasant chit-chat finally led to the question that I’d expected, and that I was sure would end the interview. "Tell me," he said finally, "do you tend to agree more with my opinions or those of Justice Brennan?" When I hesitated, he laughed and interrupted: "Well, I think that answers my question. In a job interview, you’re supposed to say right away that you always agree with me." Rather than end the interview, though, he just changed the topic to sky-diving. When he hired me two days later, I’d been surprised but it also confirmed what I’d sensed after the interview: he actually cared more about having an interesting discussion than with finding someone who always agreed with him. Over the years he loved to share what he’d learned from interviews. For example, after interviewing a top student at Howard who was also a Seventh-day Adventist, the Chief marveled at how the young man was able to focus and do well in school "when he was convinced that the world would end in a fiery cataclysm." He shook his head in admiration, "I’d find it awfully hard to concentrate on mastering the rule against perpetuities if I knew the apocalypse was coming."

Take your work, not yourself, seriously
Because the Chief was serious about the business of running the Court, I had assumed as a student that he was always serious and uncompromising. Oral argument began exactly on time. Counsel had 30 minutes exactly to make their case, and if they went over by even a second they were given a scowl and then promptly cut off. Counsel who were not properly prepared to answer questions or violated Court decorum were reprimanded. No hats or cameras or reading material or chewing gum or other distractions were allowed in the Court room. And the Chief did not spare the other justices from following the rules either — draft opinions were expected two weeks after they were assigned. There were no favorites; justices who took too long to circulate their opinions received fewer and less interesting assignments the next time around. However, for all of this rigid efficiency as a court administrator, the Chief was probably one of the more playful and unselfconscious people around. When he was not on the bench, he’d play tennis badly but happily with his clerks on the public courts near the Supreme Court. On the car ride over, he would sing loudly and without embarrassment if a song he liked came on the radio. He liked long strolls in his rumpled coat and even more rumpled cap; sometimes reporting how he’d bumped into a "very interesting fellow" who worked at the Metro, and who obviously had had no idea what the Chief did for a living. When my co-clerks and I went over for dinner and charades at the Chief’s modest townhouse, we found ourselves staring in bewilderment as the Chief Justice of the United States rolled around on the floor firing an imaginary gun and then sticking his fingers in his ears until someone finally figured out he was doing "All Quiet on the Western Front." In short, as his granddaughter put it, he was only the Chief Justice when he was at work; the rest of the day he stayed Bill Rehnquist.

Treasure Time More Than Money
The Chief would talk about the value of time often. Once he said to us that "when you are young and impecunious, it is easy to trade your time for money, but as you grow older it is very difficult to trade it back." After he explained what impecunious meant, this made sense. The Chief was disciplined about his time precisely because it was so precious to him. In his off hours he studied painting, meteorology, history and any other subjects that captured his attention. He could predict almost to the day when forsythia were going to bloom, or recite the geographic facts of virtually any place on earth. He loved to travel, to sing, to collect music and to write. But the time he protected most was family time. Just after I’d had my first child he had me over for lunch. "All of us," he said, "are selfish with our time in one way or another. We only have a little time, and so we have to choose what we like to do and then make the most of it. But having children is the one great unselfish act we do with our time — your kids’ time always must come before your own." At his memorial service, the Chief’s children confirmed that he lived by this rule. His daughter quipped that it was a disservice to say that for the Chief family always "came first," because that would suggest that there was even a competition. As a young lawyer, he always had dinner with his three children, even when he was in trial. He did not cancel family vacations for work, and he took every day of vacation that he was allowed with his family. Family time, he said, was not something that you accidentally found, it was something that you deliberately saved.

Admit Your Worst Habits, and Do Your Best Things Quietly
While the Chief and I disagreed on some things, I always knew where he stood in part because he had a disarming candor about his views and even his faults. The Chief thought no one is always virtuous, and those who pretend to be perfect are just adding hypocrisy to their other vices. So he never tried to hide his bad habits; he simply tried not to over-indulge them. He smoked one cigarette each morning when he read his mail and one cigarette after his standard lunch of hamburger and "Millers" Lite. He liked poker and gambling on the NCAA pool or any other thing that could justify a bet, but made sure to keep the stakes low. He would also admit that he had been "pretty lousy about flossing my teeth," and so had made his dentist wealthy as a result. As for his opinions, he was always willing to state exactly why he held an unpopular view and to face the inevitable public criticism from those who disagreed. By contrast, his acts of kindness and generosity were quiet and understated. When I was elected to serve as president of the San Francisco Bar — an organization not known for its effusive praise of the Chief — he looked past the many briefs we’d filed with which he had disagreed, and instead wrote a warm letter thanking me for my service and quoting President Theodore Roosevelt. "‘Every man,’" he quoted, "owes some time to the upbuilding of the profession to which he belongs." In quiet ways, he took care of me and other members of the Court "family," sharing in their successes and offering consolation in their disappointments.

Don’t assume the worst about people
Unlike most justices, the Chief’s views barely wavered over his many decades on the Court. When I was a student, it was easy to assume that his consistently narrow interpretation of anti-discrimination laws reflected a hostility to those who benefited from those laws, that his hostility to a broad interpretation of the establishment clause or privacy rights was based on his own Christian faith, and that his efforts to limit the scope of habeas corpus was based on a lack of empathy for prisoners. It was also assumed that his effort to curb the power of the federal government was based less on a desire to honor the constitutional scheme than on a political desire to protect the prerogatives of conservative states. But after debating these issues with the Chief, I came to realize that this misjudged him. The Chief did not distinguish among people based upon race or gender or religion or these other factors. Our Chamber of seven people (four assistants and three clerks) was a mixture of Jewish, Christian and agnostic faiths, men and women, Republican and Democrat, black and white, and the Chief had the same relationship with all of us. For better or worse, the Chief had great confidence in institutions and rules — and so long as boundaries were respected and a rule was consistently applied, it should not matter to the Court who in particular was affected. We discussed this often. It always seemed to me that if a rule produced unfair results for some group, then you needed to fix the rule or craft certain exceptions. But to the Chief, no human system was ever going to be perfectly fair, and so the best that the government could do was to lay down very clear rules about lines of responsibility and respect them. He believed rules should be enforced strictly and that people would either adjust their behavior, or if that could not be done, the legislature would figure out a better rule. While some individual injustices may occur in the meantime, this was necessary, and most people would learn to adapt to mitigate injustices. By contrast, he thought, exceptions just spawn more exceptions and more uncertainty until the system becomes clogged and unpredictable, producing far greater injustice. While I thought the Chief gave too much credit to the wisdom of line-drawers and too little consideration to the inertia and indifference of institutions or the corrosive effect of individual injustices, his views were not mean-spirited. He genuinely sought a more just system; we just disagreed sometimes about how to get there.

• • • • •

Most of the people who change our lives are not public figures, but the people we know personally who have helped us. In fact, the public figures who do profess to care about helping us are usually easier to admire from a distance than up close. As Winston Churchill famously put it: "No man is a hero to his valet." But when my old classmates ask me how did I (or, depending on the questioner "how could I") clerk for "that man," my answer is simple. I honestly liked him, and will always be glad that I knew him. I learned from him how to disagree with others without demonizing their motives. And so in saying farewell to him, my tribute to him is to pass along the insight that he gave to me: never pass up the kindness and friendship of someone who thinks differently from you — you may learn things you never expected.

© 2005 Jeff Bleich

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