Rehnquist papers offer peek inside Supreme Court

L.A. Cicero Elizabeth Konzak, a Hoover archivist

Elizabeth Konzak, an assistant archivist at the Hoover Institution, worked on cataloguing the Rehnquist papers.

L.A. Cicero Roe
L.A. Cicero Roe v. Wade

Included in Rehnquist’s files are documents pertaining to the landmark case of Roe v. Wade.

In the days before the U.S. Supreme Court issued its rulings on two landmark abortion rights cases in early 1973, Justice Harry Blackmun braced for a flood of media response—and possible misinterpretation.

"I anticipate the headlines that will be produced over the country when the abortion decisions are announced," he wrote to the court's other justices in a memo dated Jan. 16. "Accordingly, I have typed out what I propose as the announcement from the bench in these two cases. … It will in effect be a transcript of what I shall say, and there should be at least some reason for the press not going all the way off the deep end."

The attached statement planned for release six days later with the rulings in Roe v. Wade and Doe v. Bolton made clear that "the Court does not today hold that the Constitution compels abortion on demand. It does not today pronounce that a pregnant woman has an absolute right to abortion. It does, for the first trimester of pregnancy, cast the abortion decision and the responsibility for it upon the attending physician."

The memo and statement from the man who wrote the majority opinions are among the documents contained in the collection of papers kept by Blackmun's fellow justice, William Rehnquist, and donated to the Hoover Institution by Rehnquist's family. Eighty-seven boxes of case and administrative files from the Supreme Court terms between 1969 and 1974, along with the notebooks and a journal Rehnquist kept while studying at Stanford Law School, were opened Monday, Nov. 17. Other materials in the collection, including speeches, book writings and calendars that span Rehnquist's 33 years on the court, will be available to researchers at a later date.

Rehnquist, who earned his bachelor's, master's and law degrees at Stanford before being nominated to the Supreme Court by President Richard Nixon in 1971, was known for his conservative judgments and narrow interpretation of the Constitution. He earned respect as chief justice between 1986 and 2005 for reducing the number of cases the court agreed to hear, streamlining conferences and seeking clear, strongly reasoned opinions.

He was one of two dissenting voices in Roe, a ruling he said distorted the Constitution. There is not much in the documents now available in the Hoover archives that amplify his feelings, but there are signs that he thought about the abortion cases outside of their legal boundaries.

Along with draft opinions and memos that went back and forth among the justices over some fine points, Rehnquist kept newspaper and magazine clippings about the cases.

Carefully tucked into a file labeled "abortion cases" is a flier produced by a pro-life group featuring gruesome images described as aborted fetuses, along with letters from a few people applauding Rehnquist's break with the majority.

"May our dear Lord bless you for dissenting from the abortion-on-demand decision rendered by the Supreme Court yesterday," wrote Ellen Myers, of Wichita, Kan. "How horrible that we now have licensed the killing of our most innocent fellow human beings through the highest tribunal in our land?"

There's no indication Rehnquist wrote back.

Other highlights in the batch of papers released this week are case files from Branzburg v. Hayes, which invalidated the use of the First Amendment by reporters called to testify before a grand jury, and Furman v. Georgia, which required a degree of consistency in applying the death penalty.

There's also a peek into the controversy Rehnquist faced in a case about the U.S. Army spying on civilians. He refused to recuse himself from Laird v. Tatum, even though he had defended the Army's actions while he was a Justice Department official in the Nixon administration. He wound up casting the deciding vote in the government's favor.

Hounded by editorials in the New York Times and Washington Post, Rehnquist consulted some of his colleagues about whether he should issue a public statement explaining his decision to stay on the case.

"I am sure you are not so sanguine as to think that the memo will satisfy the N.Y. Times, Washington Post or other critics," Justice Potter Stewart wrote to him. "It will probably just further irritate them, and they do have the last word."

He ultimately decided to issue a statement, proving Stewart correct: Newspaper editorial boards failed to remain silent on the issue.

The documents released this week mostly offer pile after pile of dry legalese and routine workings of the court. Only in the interest of name-dropping are some of the documents entertaining or noteworthy.

Among the several requests from law firms asking Rehnquist to send them his best clerks and letters from law schools recommending their top students for clerkships comes a 1974 resume and letter from Louis B. Goldman, a recent graduate of the University of Chicago Law School.

Goldman had written a letter to Donald Rumsfeld, then President Gerald Ford's chief of staff, asking for a recommendation to clerk for Rehnquist. Rumsfeld—who would soon become Ford's defense secretary and hold that job again in George W. Bush's administration—passed Goldman's material to Rehnquist.

But the big-name endorsement didn't get Goldman very far.

"Don Rumsfeld has forwarded to me a copy of your resume, along with a note that you wish to be considered as a law clerk for me beginning with the October Term, 1975," Rehnquist wrote to Goldman. "I regret to say that I have already chosen my law clerks for next year."

The Rehnquist files do offer a few glimpses into the justice's lighter side.

He had a habit of doodling faces in the margins of his law school notebooks, and a journal from 1948—the year he earned both his bachelor's and master's degrees—kept records of his poker winnings and expenditures. (By Nov. 8, he was up $25. But another line item shows he could be out of pocket by as much as a quarter for the beer and Coke he brought to a game.)

He made a half-hearted attempt at chronicling a road trip he took from Palo Alto to Wisconsin, ending his short entries and map drawings by the time he got to the Rocky Mountains.

And even though his law career propelled him to the highest court in the land, Rehnquist saw little need to maintain a constant buttoned-down appearance and suggested that Blackmun institute a "coffee hour" following oral arguments.

"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," he wrote to Chief Justice Warren Burger.

He also pushed Burger to let the clerks and justices put on a gridiron show to poke some good-natured fun at the court.

"I should think we could have a very enjoyable evening of it when it occurred," he wrote.

Burger promised to keep an open mind, but warned, "something like this was tried at my old court. Just once!"