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During the summer of 1835, a 79-year-old chief justice passed away after battling failing health and trying to stay on for another Supreme Court term. Although the late chief justice had often found himself the target of political attacks, the nation deeply mourned his passing. In fact, it is said that the Liberty Bell cracked while tolling his death. That was Chief Justice John Marshall. Now, under strikingly similar circumstances, Chief Justice William Rehnquist has passed away and the nation mourns his death. While Marshall rightfully deserves to be called the nation’s greatest chief justice, Rehnquist � our chief � now takes his place in American history in the company of Marshall. Both Marshall and Rehnquist made their constitutional mark during unusually lengthy tenures on the Court. Marshall served for a 35-year period that spanned five presidents. Rehnquist served for 33 years � 18 as chief justice � a tenure spanning seven presidents. He was the longest-serving chief justice of the 20th century � an office he distinguished with his extraordinary brilliance, efficiency, and humility. A SENSE OF HISTORY While Rehnquist took great pains to reduce the number of cases that the Court hears each year, the importance of the Court’s docket grew immeasurably under his watch. He presided in an era when the Court has become increasingly embroiled in disputes over the scope of private rights that were simply not the subject of litigation in Marshall’s day, and when the Court has assumed its most prominent role in the national discourse. In recent terms alone, the justices have resolved landmark controversies surrounding a presidential election, the exercise of the president’s war powers, the public display of the Ten Commandments, and various flash points of the culture wars. But like Marshall, Rehnquist made perhaps his most profound impact on the basic structure of American government and constitutional governance. Marshall � one of the original Federalists � became chief justice in 1801 when the federal government was in its infancy. He gave effect to the constitutional design of a national government with genuine federal powers. Rehnquist took the helm of the Court in 1986 after the federal government had exploded in size and power during the 20th century. He reinvigorated the doctrine of federalism � which is based on the constitutional role of the states in our federal system � and altered the modern debate over the scope of Congress’ enumerated powers. Both the Marshall and Rehnquist Courts were stalwarts of the independent judiciary. The Marshall Court established the power of judicial review in Marbury v. Madison (1803). The Rehnquist Court vigorously exercised that authority. And as a result, both Courts at times drew the ire of Congress. Although he presided over numerous landmark cases, Rehnquist often preferred the cases that did not make the headlines. Having spent his early career as a lawyer in private practice, he relished the cases presenting relatively mundane legal issues � in which the justices acted simply as lawyers, and no more. Rehnquist loved U.S. history, and he knew it as well as almost any living American. His decisions were often rich in historical detail. And in his “spare time” as chief justice, he wrote books about subjects such as impeachment and war powers that suddenly (and mysteriously) became mandatory reading because of unexpected events. In casual conversation, he would bring up the Great Triumvirate � Daniel Webster, Henry Clay, and John Calhoun � and talk about their Senate debates as if they were still going on across the street. ADMINISTERING JUSTICE Like Marshall, Rehnquist was a great administrator. There is scarcely any more challenging task than presiding over some of the nation’s fiercest and most independent intellects. Marshall had an advantage. In a day when justices would periodically travel to Washington to hear arguments, Marshall sequestered the justices in the same hotel so that he could “encourage” them to find consensus. Rehnquist’s touch was more subtle � he relied on his affable personality, sense of humor, and evenhanded distribution of work. Rehnquist did not always succeed in forging majorities, even on the issues most important to him such as federalism. But he presided over a far more independent-minded group of justices than those in Marshall’s day. Marshall established the American practice of delivering a single opinion for the Court. In his time, separate opinions among the justices were uncommon. Today, even relatively obscure cases are often the subject of a dizzying array of concurring and dissenting opinions. A justice might write separately simply to express disagreement with a footnote in a majority decision. The chief justice is responsible not only for overseeing the Supreme Court but for administering the federal judiciary as a whole. The title, after all, is not chief justice of the Supreme Court but chief justice of the United States. And the chief justice, therefore, becomes the public face of the judiciary. For a man who generally disliked the spotlight (he once missed a State of the Union address to attend a prepaid art class), Rehnquist performed that function with a quiet dignity that spoke volumes. In one of the most divisive episodes in recent American history, Rehnquist presided over the impeachment trial of President Bill Clinton. Here too his calm but unmistakable presence lent an air of dignity to the proceedings. And his performance in what was only the nation’s second presidential impeachment trial is sure to be the textbook for any future impeachment trials. NO FINER PERSON On a more personal level, there was no finer person to clerk for. Although Rehnquist was known for his stern demeanor on the bench, in person he was a warm, down-to-earth man with a remarkable sense of humor. He was quick to put others at ease. I doubt that in any given year there were a happier set of law clerks at the Court than Rehnquist’s law clerks. This past week, more than 95 of the chief’s 102 law clerks traveled to Washington, D.C., on two days’ notice to pay their last respects to their beloved boss, mentor, and friend. Rehnquist eschewed the normal pipelines for Supreme Court judicial clerkships � which start in places like Cambridge, Mass., and New Haven, Conn. � and hired law clerks with diverse backgrounds from lesser-known schools. That was a sign not only of his self-confidence but of his open-mindedness. Not to mention a sense of his own past. When he clerked for Justice Robert Jackson in the 1950s, it was uncommon to hire a law clerk from Stanford. The truth is, the chief justice would have made out just fine without law clerks. He was an extraordinarily efficient worker with an encyclopedic knowledge of the law. Rehnquist routinely recited the precise page and volume of authorities in the U.S. Reports. He worked through briefs and decisions so quickly that it sometimes seemed like an army of chiefs labored behind his closed doors. Yet he gave us all, the “chief clerks,” the honor of working for him and the privilege of believing that we were doing our part. On the bench, Rehnquist was always formidable, and yet often an advocate’s best friend. During my first oral argument before the Court � when I was looking for a sign, anywhere, of some comfort � he asked me my first question. It was not a friendly one. But with the slightest glance down the bench, he could also call an end to an aggressive line of questioning, or at least ensure that an advocate had a full opportunity to answer the question before receiving the next blow. And if an opponent stretched the holding of a prior decision � however obscure � the chief would immediately call the decision to mind and correct the oversight. PERSEVERING TO THE END During the past term, Rehnquist set an incredible example of courage and perseverance. Severely ill, he not only fulfilled his promise to swear in the president on one of the coldest days of the year but finished the term on the bench and in full control of his Court. In June he produced a unanimous opinion for the Court in little more than a month in one of the most important cases of the term, Arthur Andersen v. United States � proving that the chief justice remained the model of judicial efficiency to the end. Indeed, perseverance was a hallmark of Rehnquist’s tenure on the Court. In numerous areas his dissenting views as an associate justice � the “lone ranger” � in the 1970s and early 1980s became the law of the land during his tenure as chief justice. His early writings in the area of federalism eventually triggered a major doctrinal development and one of the most important constitutional debates to take place on the Court during the past century. Although time will be the true measure, Rehnquist’s legacy is almost certain to be profound. The Rehnquist Court left its mark on numerous areas of law, including Congress’ commerce clause authority, public accommodation of religion, and criminal procedure. In law schools across the country, students engage in debates over the enumerated limits on Congress’ power � debates that did not seriously take place before the Rehnquist Court. And a former Rehnquist clerk, Judge John Roberts Jr., has been nominated to be the next chief justice of the United States. While his partial absence during the past term has provided a glimpse of what the Court will look like without Rehnquist at the helm, he will never be forgotten. And the chief will be greatly missed.
Gregory G. Garre was a law clerk for Chief Justice William Rehnquist during the 1992-1993 term. He is currently head of the Supreme Court and appellate practice in the D.C. office of Hogan & Hartson.

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