The Nine (6 page)

Rehnquist never went public with his distress about Burger, but he also seethed. In the Burger years, opinions came out late or not at all, forcing cases to be “put over,” or reargued, in subsequent years. Once, when Lewis Powell was ill, Rehnquist wrote him about his frustration with Burger. Powell, who joined the Court at the age of sixty-four, served as a kind of older brother to all the justices, and Rehnquist felt comfortable unburdening himself in alternately brusque and whimsical ways.

“Sometimes when [Burger] runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a Southern Senator conducting a filibuster. I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page,” Rehnquist wrote. “Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well-researched, cogently presented, and right on target!”

So when Rehnquist became chief in 1986, Burger had provided him with a clear picture of how not to run a conference. Rehnquist set out to do it differently, and he led by example. He would begin by briefly summarizing the case, giving his own view of the proper result, then going around the table in order of seniority. (At times the tradition had been for discussion in seniority order, then votes in reverse seniority order. Rehnquist thought that was a waste of time and combined the two rounds into one.)

The other justices followed his example. Their comments were shorter, the resolution of the cases was clearer. No one spoke twice before everyone had a chance to speak once. In time, the brevity of the conferences would come to have a large and unexpected impact on the workings of the Court, but for the moment everyone was pleased with the efficiency.

Case assignments changed, too. Every chief justice wields power through assigning big cases to his favorites (or, especially, to himself), but Rehnquist made the system as fair as possible. No one received a new assignment until he (or she) had finished the previous one. As with speaking at conference, every justice was assigned one case before anyone was assigned two. Rehnquist didn’t interfere with assignments when he was in the minority. Everyone on the Court, liberals and conservatives alike, welcomed the changes.

One of the signatures of the Burger years was that the Court decided more and more cases every year. The number of filings increased, but the number of cases the justices accepted jumped even faster. By the mid-1980s, they were hearing as many as 150 cases a year—double the number from the 1950s. Like the chaotic conferences, the ever-rising number of lawsuits contributed to an atmosphere of chaos. In those jumbled final days of the term each year, Burger often couldn’t corral five justices to agree on a majority opinion. The splintered justices would thus fail to settle the issue before them and therefore offer little guidance to the lower courts addressing similar questions. At a basic level of competence, the Court wasn’t doing its job.

For the most part, the justices controlled their calendar; they could decide how many cases to hear simply by granting or refusing writs of certiorari. (Four votes are needed to grant a writ to hear a case.) As it happened, White and Blackmun had idiosyncratic views of the certiorari process. White thought the Court should grant cert whenever there was even a suggestion that two circuit courts of appeals viewed an issue differently; other justices thought it necessary to resolve only significant circuit splits. Blackmun regarded a denial of cert as tantamount to a decision on the merits, so he wanted to grant whenever he disagreed with a lower court’s view. White and Blackmun’s approaches, plus various combinations of others, meant the caseload was becoming close to unmanageable.

By the time Burger resigned, all of the remaining justices wanted to reduce the number of cases. But how to do it in a way that wouldn’t also take away their opportunity to advocate their own quirky view of the cert process? In a little-noticed development, Rehnquist figured out a solution. One area the justices all wanted to pare was so-called mandatory appeals. Certain federal laws, mostly in obscure areas, gave the parties the absolute right to have their cases heard by the Supreme Court. These cases, which amounted to a dozen or more every year, absorbed a lot of the Court’s time on trivial issues. So Rehnquist lobbied Congress to change the law. The task required just the kind of Washington savvy that Burger claimed to have but didn’t. Rehnquist accomplished his mission in just two years. In 1988, Congress passed a law that essentially gave the Supreme Court complete control of its docket. To a person, the justices were extremely grateful to the chief.

Rehnquist’s personality also changed the atmosphere on the Court. Burger was an Anglophile who collected antiques and fine wines. (When Blackmun joined the Court, Burger gave him a top hat as a gift.) Such was Burger’s vanity that he placed a large cushion on his center seat on the bench, so he would appear taller than his colleagues. Rehnquist had none of those pretensions, at least in his early years as chief. He had a single beer and one cigarette at lunch every day. (Later, he struggled, with intermittent success, to quit smoking and switched to what he would always call a “Miller’s Lite.”) By the time he became chief, Rehnquist had pared his long sideburns and dropped the wide ties that were his concessions to 1970s fashion, but he still cut a shambling figure when he took his lunchtime strolls around the neighborhood.

John Dean, Nixon’s White House counsel, remembered that when he first introduced Rehnquist to the president, the then–assistant attorney general “was wearing a pink shirt that clashed with an awful psychedelic necktie, and Hush Puppies.” According to the White House tapes, after Rehnquist left, Nixon asked Dean, “Is he Jewish? He looks it…. That’s a hell of a costume he’s wearing, just like a clown.” As chief, Rehnquist, a Lutheran of Swedish ancestry, disposed of the worst of the ties but kept the Hush Puppies.

For a large, strapping man, Rehnquist had a delicate constitution. He had a chronically bad back, from an injury he sustained while gardening, and the pain would sometimes cause him to stand up during oral arguments at the Court and take a few steps behind his chair. In the early 1980s, he was even hospitalized for the back problems, and the treatment created new issues. The painkillers caused him to slur his words, and the problem became embarrassingly noticeable when he asked questions in Court. The FBI investigation in connection with his promotion to chief justice revealed that Rehnquist’s medical problems were more serious than the public was led to believe. He had been addicted to the sedative Placidyl for at least four years, and when he was hospitalized during his withdrawal from the medication in 1981, he suffered hallucinations. On one occasion, he told a nurse that “Voices outside the room are saying they’re going to kill the president.” Still, by the time he became chief, in 1986, his condition appears to have stabilized, in part because he took up tennis. Even though he was entitled to hire four law clerks, he generally took only three, which suited his weekly doubles game.

Rehnquist had married his wife, Natalie Cornell, known as Nan, after his service in World War II. A native of Wisconsin, Rehnquist had developed a taste for desert heat during his time as a weather spotter in North Africa, and the newlyweds settled in Phoenix. (The chief’s military service also instilled in him a lifelong curiosity about the weather that matched his interest in low-stakes gambling. He’d often bet his law clerks how much snow had fallen in the plaza in front of the Court.) Nan matched her husband in a mutual absence of pretensions, and their marriage was long and happy. But shortly after Rehnquist became chief, Nan was diagnosed with cancer. Their struggle with her illness, combined with the markedly improved atmosphere at the Court, only deepened the affection of Rehnquist’s colleagues for him. She died on October 17, 1991.

That was just two days after Thomas, at long last, won confirmation in the Senate. But the tally of votes on October 15 didn’t conclude the drama surrounding Thomas’s nomination. Hill’s testimony had set off a furious scramble among many journalists and Democratic activists to corroborate or refute her charges. (Records of Thomas’s videotape rentals were of particular interest.) Rumors abounded that other women were going to come forward with evidence of objectionable behavior by Thomas. Even though he had been confirmed, Thomas would not actually become a justice—and thus removable only by impeachment by the House and conviction by the Senate—until he took the oath of office. And before the furor over Hill erupted, the White House and Rehnquist had tentatively planned for Thomas to take it from the chief justice on November 1.

But that was seventeen full days after the Senate vote—a period of time when anything could happen. Thomas’s supporters wanted him sworn in immediately. But with Nan Rehnquist’s death on October 17, the White House faced the delicate problem of intruding on the chief justice’s grief for a final act of damage control on Thomas’s nomination.

At first the administration tried to finesse the problem, by holding an unofficial swearing in—a party, in effect—on the White House lawn on Friday, October 18. The ceremony would have no legal significance, but it would contribute to an atmosphere of finality around the confirmation. Hundreds of guests, including many members of Thomas’s family (including his father, from whom he had been long estranged until shortly before his nomination) and celebrities like Sylvester Stallone and Reggie Jackson, joined the president to salute the new justice.

Still, Thomas was not yet an actual member of the Court, and investigative reporters were still hard at work. White House officials decided the stakes were high enough to risk offending Rehnquist, so they asked him to administer the oath to Thomas only days after Nan Rehnquist’s death. The chief agreed, and the swearing in took place on October 23 in a conference room at the Court, the first such private ceremony in fifty years. The official explanation for the speeded-up procedure was to allow Thomas’s secretaries and clerks to get on the Supreme Court payroll—a transparent rationalization since his employees were already on the federal payroll at the D.C. Circuit.

The rushed oath turned out to be a wise move. That same day, according to Jane Mayer and Jill Abramson, three reporters for the
Washington Post
“burst into the newsroom almost simultaneously with information confirming that Thomas’ involvement with pornography far exceeded what the public had been led to believe.” They had testimony from eyewitnesses and the manager of a video store where Thomas rented such fare. But since Thomas had been sworn in, the
Post
decided not to pursue the issue and dropped the story.

The whole Thomas confirmation could scarcely have been a greater assault on the Court’s sense of seemliness. The crudity of the accusations, the brutality of Thomas’s response, the vindictive discourse on all sides made for a perfectly awful combination. That the White House, if not Thomas himself, had intruded on Rehnquist’s grieving for political purposes made it even worse.

O’Connor, who was considered the social as well as the political center of the Court, had a habit of dividing the world—people, buildings, controversies, issues—into two categories: attractive and unattractive. The words referred not so much to what was or wasn’t pleasing to the eye but rather to an overall level of decency and likability. To her, and her colleagues at the Court, the Thomas hearings
defined
unattractive.

Then, it got worse. The November 11, 1991, issue of
People
magazine featured a seven-page spread on Clarence and Virginia Thomas and their view of the confirmation ordeal. Ginny Thomas was a political force in her own right, a Labor Department lawyer at the time and later a senior official with the Republican congressional leadership and with conservative foundations. She said that after Hill made her claims, “the Clarence Thomas I had married was nowhere to be found. He was just debilitated beyond anything I had seen in my life. About 12:45 a.m., he said, ‘I need you to call your two friends from your Bible-study group, and their husbands, and get them here with me in the morning to pray.’ Clarence knew the next round of hearings to begin that day was not the normal political battle. It was spiritual warfare. Good versus evil. We were fighting something we didn’t understand, and we needed prayerful people in our lives. We needed God.” The couple posed for photographs—grinning cheek to cheek, holding hands on the plush carpet, curled up on the sofa reading the Bible. Thomas told the reporter, “It’s been brutal, just brutal. I don’t know if it’s over, but we found a way to survive. And we have each other.”