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In his Senate confirmation hearings, first as associate justice and then as chief justice, William Rehnquist faced intense questioning over a memo about racial segregation he had written as a Supreme Court law clerk. Now that Senate confirmation hearings loom for one of Rehnquist’s own former law clerks, it appears unlikely that scenario will repeat itself. Supreme Court nominee John Roberts Jr. may indeed be grilled for his writings as an executive branch lawyer in the Reagan and first Bush administrations. Senate Democrats last week pressed for the release of even more documents from those periods of Roberts’ professional life. But many of Roberts’ writings for the Supreme Court as a young law clerk for Rehnquist in 1980 and 1981 are already publicly available at the Library of Congress, among the papers of the late Justice Harry Blackmun. And while they provide revealing insights into his approach to the law, they appear unlikely to provoke sharp controversy, or so it would seem from a check of Blackmun’s papers last week. Blackmun’s papers don’t include whatever Roberts wrote for Rehnquist’s eyes only during that year at the Court. Those writings would be found in Rehnquist’s own papers, if anywhere, and his papers won’t be made public anytime soon. But even then, says one fellow Rehnquist clerk, it is unlikely Roberts’ name will turn up with any frequency. “We just didn’t write bench memos for Justice Rehnquist,” says Robert Knauss, a partner at Munger, Tolles & Olson in Los Angeles who clerked for Rehnquist along with Roberts that term. “He tended to think they were busy work. To prepare for a case, he would come in and point to one of us and say, �Let’s take a walk,’ and we would talk about the case walking around Capitol Hill.” It was a bench memo over race that Rehnquist wrote for his justice, Robert Jackson, in 1952 that clouded Rehnquist’s nomination hearings in 1971 and 1986. Rehnquist’s memo, prepared at the early stages of the Brown v. Board of Education case, argued that the infamous 1896 case of Plessy v. Ferguson, which upheld “separate but equal” facilities, “was right and should be re-affirmed.” In the memo Rehnquist said, “I realize that this is an unpopular and unhumanitarian position, for which I have been excoriated by �liberal’ colleagues.” Rehnquist managed to defuse the controversy by stating that the memo reflected Jackson’s views, not his own�an explanation that some scholars doubt to this day. But fast-forwarding to Roberts’ term as a Court clerk, nearly 30 years later, the memos he wrote are much blander fare. Rehnquist at the time was one of five justices who were in the “cert pool,” a nine-year-old arrangement whereby the justices pooled their law clerks in reviewing incoming cases to determine if they should be granted or denied review. The clerks divided up the hundreds of new petitions and wrote memoranda that would be sent to all the justices in the pool. Perhaps because they had a wider audience, clerks say the pool memos rarely contained strong views or controversial language. “One person’s pool memos looked a lot like anyone else’s,” recalls Jenner & Block partner Paul Smith, who clerked for Justice Lewis Powell Jr. the same year as Roberts. “There was a natural tendency to recommend denial. You couldn’t get in trouble that way.” In his February 1981 memo on one important case that term, Board of Education v. Rowley, Roberts wrote that a lower court dissent was “persuasive” in arguing that the “free appropriate” education for handicapped students required under federal law did not mean that states have to provide students with “the opportunity to achieve maximum or a full potential.” Advocates for special education students had argued that Amy Rowley, a deaf student, was entitled to a sign-language interpreter. The state of New York, Roberts wrote, had won approval for a plan that did not provide interpreters for students like her. When the Court decided the Rowley case the following term, Rehnquist wrote the 6-3 majority opinion along the lines Roberts suggested, interpreting the law to require aid that provides only “some educational benefit.” The decision has been criticized ever since for giving school districts license to give only minimal help to special students � a “Chevrolet versus Cadillac” approach, as several commentators describe it. A Roberts memo from August 1980 in Carter v. Kentucky took a narrow approach to the Fifth Amendment right against forced self-incrimination. At issue was whether state and local judges must instruct juries not to draw any inference from a defendant’s failure to testify at trial. Even though 32 states required such an instruction, Roberts wrote, “none of the decisions relied upon by [petitioner] support requiring the states, as a matter of constitutional law, to give a �no inference’ instruction. In a handwritten comment on the memo, one of Blackmun’s clerks said Roberts’ argument was “troubling.” When the Court ruled in the case, in March 1981, the Court said defendants who request a “no inference” jury instruction are entitled to it. Rehnquist was the lone dissenter, asserting that “the Court has reached its conclusion in this case by a series of steps only the first of which is traceable to the United States Constitution.” Rehnquist was often in solitary dissent in that period, recalls Jenner’s Smith, and his clerks were ready to stand with him. “We certainly understood that John was a conservative guy, and he was working for the Court’s sole true conservative,” says Smith. Another former clerk, who declined to be named, said Roberts made it plain how happy he was that Ronald Reagan was elected president in November 1980. But Smith, whose justice, Powell, was in the middle of the Court’s ideological spectrum, says, “Everybody got along in those days.” Knauss, Roberts’ fellow clerk in Rehnquist’s chambers, agrees. “You read about factions in later years and clerks being at each others’ throats, and we had none of that,” says Knauss. “There was no animosity.” Knauss said clerks from several chambers that term still stay in touch, and he and Roberts have remained good friends. Though Roberts has been portrayed in recent days as something of a cocky Harvard Law School graduate in his earlier days, Knauss says that then, as now, he had a “light touch.” Knauss adds, “The remarkable thing about John is that he is so smart yet so unassuming�confident but not at all cocky.” Clerks, including Roberts, played basketball at the Court nearly every afternoon. Rehnquist’s back problems were particularly severe that term, so he did not join his clerks at basketball or tennis, Knauss recalls. Since Rehnquist hired three clerks instead of four that term, as was his custom, the late Justice Byron White would often recruit Rehnquist’s clerks to join him for two-on-two basketball matches. Clerks from that term say it was a largely unremarkable year of service, with only one blockbuster case, which came late in the term. In Dames & Moore v. Regan, the Court was asked to ratify actions taken by former President Jimmy Carter as part of the agreement that ended the Iran hostage crisis. Carter had agreed to terminate suits against Iran and attachments of Iranian property, and several U.S. companies and banks challenged his power to do so. The case was handled on an expedited basis because of the agreement’s looming deadlines. The petition was filed on June 10, 1981, argued June 24, and decided July 2, just before the Court recessed for the summer. Associate Justice Rehnquist authored the unanimous decision, which upheld the presidential actions and gave broad deference to executive power based on several federal laws and on congressional acquiescence. “Where, as here, the settlement of claims has been determined to be a necessary incident to the resolution of a major foreign policy dispute between our country and another, and where, as here, we can conclude that Congress acquiesced in the President’s action, we are not prepared to say that the President lacks the power to settle such claims,” Rehnquist’s opinion states. The ruling has long been criticized as being far too deferential to presidential power in the absence of laws that authorize the president’s actions. What role did Roberts play in the Dames & Moore case? He did not author any of the clerk memos on it, but a note to Blackmun from one of his clerks after the decision was issued says, “My hat is off to WHR and his boys for turning this one out so quickly.” Another former clerk, who did not want to be identified, says Roberts played a leading role in writing the decision. Asked about that assertion, Knauss disagreed. “That was one of the few cases where the writing was a joint effort by everybody�including the justice.” Then he added with a laugh, “But all the good parts were John’s.”
Tony Mauro can be contacted at [email protected].

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