Fresh from the Nixon Justice Department, newly minted associate U.S. Supreme Court Justice William Rehnquist needed advice.
He had already decided against recusal in Laird v. Tatum, 408 U.S. 1 -- a case about the U.S. Army spying on civilians -- even though, while still a member of the administration, Rehnquist defended the practice in congressional testimony. On the Court, Rehnquist provided the crucial fifth vote in favor of the government, despite calls in the press for his recusal.
The question Rehnquist struggled with in the summer of 1972, then, was whether he should release a memo that explained his controversial decision to the public.
Chief Justice Warren Burger didn't think he should.
"The chief feels that I ought not to issue it," Rehnquist wrote to Justice Potter Stewart at his home at Bowen Brook Farm in New Hampshire, "since the issue will inevitably become unnewsworthy if nothing is done, and because issuing it might create some sort of a precedent whereby" other justices may "feel obligated" in the future to similarly explain their reasoning for staying in a case.
The dilemma was reflected in the first batch of William Rehnquist's papers to be released to the public by the Hoover Institution at Stanford University. The files released Monday morning include case files from Rehnquist's first three terms as well as some correspondence. But most of his personal correspondence won't be released until January.
Papers from cases after 1974 won't be released until Justice John Paul Stevens passes. Though the 1972 to 1974 period included Roe v. Wade, 410 U.S. 113 (1973), the death penalty case Furman v. Georgia, 408 U.S. 238 (1972), and a handful of key First Amendment rulings, the papers of other justices have already filled in details about how majorities were achieved. Rehnquist's own case files shed little light on what drove his decision-making.
Still, nuggets could be found in the 87 boxes of documents (pdf). While Burger advocated for silence about the recusal, Justice Byron White believed it would be a "good idea" for Rehnquist to state his reasons. With conflicting advice, Rehnquist sought out Stewart. And even though Stewart was on the losing side of Laird, he urged Rehnquist on in a handwritten note. Stewart wouldn't feel pressured at all, he wrote.
"I think publication of the memo would be basically healthy -- it is informative, thoughtful, persuasive and educational," Stewart wrote. "On the other hand, you are not so sanguine as to think that the memo will satisfy the N.Y. Times, Washington Post, or other critics. It will probably just further irritate them, and they do have the last word."
Stewart added: "I suppose it comes down to your own instinctive feeling. If you would feel more comfortable publishing it, I'd do so if I were you."
"P.S.," Stewart concluded, "the three days after you left New Hampshire's White Mountains were the most beautiful of the entire summer!"
Rehnquist followed Stewart's advice, precipitating a flurry of both positive and negative letters. One complimentary note came from then-9th Circuit Judge Eugene Wright. "I believe you have set a good example for others to follow," Wright wrote.
Much of Rehnquist's case files were made up of successive drafts of opinions, with little evidence of the justice's intellectual process. Revised versions often involved little more than stylistic changes, as with Furman, the landmark 1972 case revoking the death penalty. In the second draft of his dissent, Rehnquist made sure first references to his colleagues on the Court included a comradely, "My Brothers."
A social animal, the justice tried to liven things up soon after he arrived on the Court. Writing to Burger in September 1973, he suggested some improvements, like coffee hour after oral argument.
"I think that the practice which each of us appears to follow at the close of a day of oral argument -- plodding back to his own individual salt mine -- is bad for morale," Rehnquist wrote.
Complaining that the Court dining room "combines, to a degree that might be thought impossible, baronial elegance with dreariness," Rehnquist asked about using the Senate's facilities. "I would guess that we are the highest ranking members of the bureaucracy who are condemned to" standard-issue government food, he wrote.
And Rehnquist wanted to have some fun. "I would enjoy seeing what each annual crop of law clerks, together with such help from the Justices that they might wish, could do in the way of a gridiron show or other parody or satire on the court," he wrote.
Burger's reaction to all of this was less than enthusiastic. The coffee hour might be "feasible" one day a week, but "my own attendance would be brief or rare, or both. There just isn't time."
The chief justice assured Rehnquist that the dining room decor had been much improved since a few years before. "It looked like one of Gawler's better 'display' rooms," Burger wrote.
As for the comedy show, "I'll try to keep an open mind," Burger wrote. "Something like this was tried at my old court. Just once!"
As it turned out, Rehnquist did organize such a satire a few years later, which was described in the seminal Supreme Court book "The Brethren." According to the authors, "Burger did not share in the others' laughter." The next term, perhaps in retribution for the skit, Burger assigned Rehnquist one case, and an insignificant one at that.
Rehnquist was also reported to have disdained Justice William Brennan, and some evidence of that appears in his papers. One of Rehnquist's clerks reports: "I have read over Justice Brennan's proposed questions in Pipefitters, with an eye for any omissions or unfair phraseology."
The justice also kept a copy of a Brennan dissent, with a New Yorker-style cartoon of the Court stapled to it. "My dissenting opinion will be brief: 'You're all full of crap!'" the caption read. The cartoon had Brennan's initials penciled on the back, so it is possible Brennan himself circulated the drawing as a joke.
The Stanford materials were short on personal effects, though there were some: a lease for a Washington, D.C., apartment Rehnquist rented when he worked for Justice; the program for J. Edgar Hoover's funeral.
A personal journal from his college years shows the future chief justice spent 40 cents on golf balls, 60 cents on tennis balls and $3 on a "date." His most passionate writing involves what he describes as a deadbeat friend.
"Went over to Herman's but no one was there," Rehnquist wrote on Aug. 30, 1947. "I'm getting quite discouraged about the whole thing. I would hate to think I was just 'out' that money. It will weigh on my mind until I collect it."
After more than a decade without any personal entries, Rehnquist began recording quotes he ran across. "Conservatives are those who worship dead radicals," he wrote in November 1968, after a year of assassinations and shortly after Nixon's election.
Rehnquist kept a few newspaper stories, including one from the Boston Globe in 1975 written about his son, an Amherst student. The byline belonged to Peter Gammons, now one of the nation's top baseball authorities on ESPN.
"The moral of the Rehnquist story must be no matter what is said or written about the Hon. William H. Rehnquist, if he has a kid like Jim, he can't be all bad," Gammons wrote.
