Changes at the Supreme Court

KWAME HOLMAN:

The flag outside the Supreme Court flew at half-staff today in honor of Chief Justice William Rehnquist and his 33- year service on the bench. Flags across the country had been lowered yesterday for Rehnquist and for hurricane victims. When the court's term ended in June, many wondered if the 80- year-old chief would retire due to his ongoing treatment for thyroid cancer, diagnosed last fall. In mid-July, Rehnquist put that to rest, saying he had no plans to step down.

Rehnquist first came to the court in 1952, as a clerk for Justice Robert Jackson, just months after graduating first in his class from Stanford Law School. In 1972, Rehnquist returned to the high court, this time as an associate justice appointed by President Nixon. Rehnquist recalled his first days on the job in a 1988 interview on public television.

WILLIAM REHNQUIST:

I sat there and I thought it was almost mind-boggling. Here we were deciding things of great import and, you know, I felt "who am I to be doing this?"

KWAME HOLMAN:

President Reagan selected Rehnquist to be chief justice in 1986 after Warren Burger retired. Rehnquist's most visible duty as chief justice came every four years, when he administered the presidential oath on Inauguration Day to George Herbert Walker Bush…

BILL CLINTON:

And will, to the best of my ability…

KWAME HOLMAN:

…Bill Clinton, and George W. Bush.

Among the most notable cases during Rehnquist's tenure: Roe Versus Wade in 1973. Rehnquist dissented in the landmark case establishing a right to abortion. United Steel workers of America Versus Weber in 1979, in which Rehnquist dissented and spoke out against the use of quotas to achieve racial balance.

SPOKESPERSON:

So let's go in quietly.

KWAME HOLMAN:

And in Zelman Versus Simmons-Harris in 2002, Rehnquist wrote for the court majority that ruled publicly- funded school vouchers could be used for tuition at religious schools. He also was a strong advocate for states' rights.

In 1999, Rehnquist became the second chief justice in history to preside over a Senate impeachment trial, this one of President Clinton.

WILLIAM REHNQUIST:

The Senate adjudges that the respondent, William Jefferson Clinton, President of the United States, is not guilty as charged in the first article of impeachment.

KWAME HOLMAN:

And in 2000, Rehnquist led the court in settling the dispute over the presidential vote in Florida. The chief justice talked about his years on the court last year in an interview with C-Span.

WILLIAM REHNQUIST:

Well, I think it's a very good job. (Laughs) I have no regrets at all about ever being an associate justice or about being chief justice. I think it's a remarkable opportunity. And to me, one of the most appealing things about it is that, either as an associate justice or as chief justice, it enables you to participate in some way and to some extent in the way the country is governed, but you're able to maintain a private life as well.

KWAME HOLMAN:

Today, President Bush said it was fitting that Rehnquist's former clerk, John Roberts, should follow his mentor as the nation's 17th chief justice.

PRESIDENT GEORGE W. BUSH:

In his boss, the young law clerk found a role model, a professional mentor, and a friend for life. I'm certain that Chief Justice Rehnquist was hoping to welcome John Roberts as a colleague, and we're all sorry that day didn't come.

It is fitting that a great chief justice be followed in office by a person who shared his deep reverence for the Constitution, his profound respect for the Supreme Court, and his complete devotion to the cause of justice.

KWAME HOLMAN:

After Wednesday's funeral service, Chief Justice Rehnquist will be buried alongside his wife at Arlington National Cemetery.

JIM LEHRER:

More now on the Supreme Court events of the last two days, from David Leitch, who practiced law with John Roberts in Washington, and also clerked for Justice Rehnquist. He is now general counsel of the Ford Motor Company; and Pam Karlan, a professor at Stanford University Law School who regularly argues cases before the US Supreme Court. She clerked for Supreme Court Justice Harry Blackmun.

And Pam Karlan, what do you think of the new Roberts nomination?

PAM KARLAN:

Well, I think it was pretty much to be expected. I think that people assumed when he was nominated for Justice O'Connor's seat that if the chief justiceship opened up in the next few years, he would be the leading contender for it, so no surprise there.

JIM LEHRER:

Do you agree, David Leitch, no surprise?

DAVID LEITCH:

I agree. I think Judge Roberts would have been a leading candidate for the chief justice's seat had that been the first vacancy.

So it's no surprise that the president chose to move him on at this point.

JIM LEHRER:

Pam Karlan, is he qualified to be chief justice of the United States Supreme Court?

PAM KARLAN:

Well, I think I would disagree with much of what I suspect his constitutional interpretation would be. Certainly if I had been president I wouldn't have nominated him. The question for the senators is how different can someone's views of the Constitution be from theirs and yet still be qualified to hold the position.

JIM LEHRER:

Okay. David Leitch, where do you come down on his qualifications to be chief justice?

DAVID LEITCH:

Well, I think he's one of the most qualified nominees in history. I mean, he's argued 39 cases before the court. He knows the court inside and out. He served there as a law clerk; he knows all the justices and they know him, and they all think very highly of him. I think he'll be a great leader for the court with the right judicial temperament, the right collegiality, and I'm perfectly happy to say I think he's highly qualified.

JIM LEHRER:

And you agree with his constitutional interpretations, rather than to disagree, as Pam Karlan does?

DAVID LEITCH:

Well, I'm not sure that I know what his constitutional interpretations would be, and I'm not sure that I think it's appropriate that I should ahead of time. I know what his approach to the law will be, and that is not to be ideological but to apply the law faithfully as he finds it, and I think that's the most we can expect from a judge.

JIM LEHRER:

Is that all we can expect from a judge, Pam Karlan?

PAM KARLAN:

Well, you know, the first Justice Roberts on the Supreme Court had a famous line about this, where he said, "Well, when we interpret the constitution, what a judge is supposed to do is take the statutory provision that's in front of him, line it up next to the Constitution, and see if it fits."

I don't think anyone who follows constitutional law today believes that's what judges in fact do, so different judges looking at the same constitutional provision will have very different views of it. And my own view is that the senators should take ideological issues into account in deciding whether someone who is undoubtedly smart enough to be a Supreme Court justice also has the wisdom to hold the position.

JIM LEHRER:

David Leitch, do you believe that the senators, whatever their view of John Roberts at this moment, they should take a different tact or be sharper in their questioning because he has now been nominated for the chief justice rather than just an associate justice? Is there a difference, in other words?

DAVID LEITCH:

I don't think there's a difference. I think each of the justices obviously gets a vote. They were certainly well-prepared to question him to be an associate justice. There may be a few questions about administrative issues and how you would actually serve in the role of chief justice, but the most important functions are the ones of hearing cases and deciding how they're going to come out, and they were ready to question him quite thoroughly about those issues as of tomorrow.

JIM LEHRER:

Pam Karlan, help us understand exactly what the job of the chief justice is. Where's the power and the responsibility there in that job?

PAM KARLAN:

Well, there are two big jobs that differentiate the chief justice from the other justices. The first is that he runs the conference, the meeting among the justices to decide cases, and then if he's in the majority, and most of the time the chief justice will be in the majority, he decides which justice on the court will write the opinion for the court. And that assignment power is a very important power.

The other thing, as David just alluded to, is the chief justice has a role in the overall administration of the US courts, in assigning judges to various committees that decide rules issues and the like. And there the chief justice has tremendous power in helping to shape the rules that govern federal courts.

JIM LEHRER:

How would you edit that in any way, David Leitch? Or what would you add or subtract to her definition?

DAVID LEITCH:

I think the most significant aspect of that is the opinion- writing assignment. You can often shape how the law is going to develop in the future by who writes the opinion and how majorities are held together or lost based on who writes an opinion.

It's a very important strategic function and the chief justice, as Pam said, usually is the one who makes that assignment.

JIM LEHRER:

David Leitch, can you think of a case that was adjudicated while Justice Rehnquist was the chief justice that was basically decided because of the power he exercised through one of the techniques or whatever that you… along the lines that you and Pam Karlan were just describing?

DAVID LEITCH:

Well, I don't know that I have a ready example. I think the one that comes to mind perhaps first is the case that sort of constitutionalized the Miranda decision: Dickerson. And he kept that opinion for himself to write the opinion, and I suspect he probably did that to limit what he would have seen as the damage that could have been done if that opinion had been written too broadly. That kind of example is probably the best example I can think of.

JIM LEHRER:

Professor Karlan, in a more general way, what should we remember most about the tenure of William Rehnquist as chief justice?

PAM KARLAN:

Well, I think two things: One is that it marked a sharp turn of the court away from the Warren Court era, with the revival of a kind of federalism and states' rights. And the second thing is that the court's docket shrank dramatically. In the last year of the Burger court, the Supreme Court decided approximately 155 cases. Last year the Supreme Court decided about 80. And I think that has changed quite dramatically the number of cases that the court has taken — and also, as I say, this move towards the right and towards more of a states' rights and less of a pro-federal, pro-Congress position on the part of the Supreme Court.

JIM LEHRER:

Do you agree with that analysis, David Leitch, of what his main mark was… main marks are?

DAVID LEITCH:

I do. I wouldn't say that the turn away from the Warren Court was quite as sharp as perhaps Pam would indicate. It was more of a gradual turn. There were certainly important milestones like the federalism cases, but much of the work of the Warren Court remains on the books.

But I think, you know, there was a gradual shift over time, and the chief justice went from being the Lone Ranger when he was first on the court, as a lone dissenter in many opinions, to being the leader of a court that revisited many of those precedents.

JIM LEHRER:

David Leitch, does he qualify for that term "leader" in the full sense, that he really did lead the US Supreme Court while he was chief justice?

DAVID LEITCH:

I think he led it in many ways. And most importantly, he led it in collegiality. He was a very affable man. I had the privilege of serving with him for a year. And he remained close to all his law clerks over the years, and he remained close to the justices. And even though there were many differences of opinion, sharp differences of opinions, Justice Rehnquist, Chief Justice Rehnquist helped keep the court together, he helped it operate efficiently. He has left an enduring legacy.

JIM LEHRER:

Pam Karlan, what would you add to that on the leadership issue and what Justice Rehnquist brought to that?

PAM KARLAN:

Well, I think he was a far better leader within the court than his predecessor, Chief Justice Burger. The court ran on time. The administrative personnel within the court seemed very pleased with the way he led the court. And so I think… I agree with David, that in that sense he was the leader of the court. On the federalism issues and on issues of restricting habeas corpus, he was a leader of the court — I think less of a leader of the court on social issues, in which he often found himself in dissent, on abortion, on gay rights, on a number of First Amendment and school prayer issues.

JIM LEHRER:

Do you agree with that David Leitch, that's fair?

DAVID LEITCH:

Yes, I think it's fair, and it demonstrates the limits of being a chief justice — again, only one vote. You can hope to persuade your colleagues to join you, but no more so than any other justice. You know, you have the persuasive powers you have. And there were justices who just didn't agree with his views on some of those issues. The other area I'd mention would be church and state. I think he was very influential on issues involving church and state, on permitting there to be more interaction, which some find regrettable and others find commendable.

JIM LEHRER:

David Leitch, I read a comment today. Like it or not… among the public, among legal folks like you all, legal scholars like you all, there will be long discussions about his legal legacy, but among the public there's one case that stands out, of course, is Gore Versus Bush in the 2000 election thing. Is it right, and it didn't fit his federalism concept– at least a lot people thought it did not. Do you think it's fair for the public to zero in on that as his… as a legacy of William Rehnquist?

DAVID LEITCH:

Oh, I don't think it's fair. I mean, I think the case was… you know, it was… ultimately, it was a seven-two decision in terms of thinking that the Florida Supreme Court had gotten it wrong. So, you know, he was in a large majority there. But, look, this man was on the Supreme Court for over three decades. He engaged in a lot of important decisions. I think his legacy will be much more than that one particular case.

JIM LEHRER:

What's your view of that, Pam Karlan?

PAM KARLAN:

Well, I think his legacy will be larger, but I think Bush against Gore, which was a five to four on whether the Supreme Court should have stopped the recount, was, in fact, an example quite consistent with a lot of the Rehnquist court's other decisions because I think what underlay that decision was their distrust of Congress and their distrust of the political process and the political process resolving an election.

And, of course, one thing that's sort of obvious today is that in deciding the 2000 election, to some extent the members of the Supreme Court decided who would succeed William Rehnquist as chief justice.

JIM LEHRER:

In a word, beginning with you, Pam Karlan, do you expect the court to change dramatically if John Roberts is in fact confirmed and does become the chief justice?

PAM KARLAN:

No, I don't. I think that he will probably be quite similar in many ways to the chief justice he's replacing. The place to look for whether the Supreme Court is going to change a lot is who replaces Justice O'Connor.

JIM LEHRER:

David Leitch, what's your view of that?

DAVID LEITCH:

I don't expect the court to change a lot because John Roberts is the chief justice. I don't think he'll just be in the mold of Chief Justice Rehnquist; he'll be his own man, and he will do some things differently and many things the same, but I think we should watch this space to see how Chief Justice Roberts develops.

JIM LEHRER:

Okay. David Leitch, Pam Karlan, thank you both very much.