Indiana Law Review A Law Clerk AND His Justice: What William Rehnquist Did Not Learn from Robert Jackson Laura K. Ray* Introduction When William Rehnquist took his seat on the Supreme Court bench in 1972,' he became the second member of a highly select fraternity: former law clerks who returned as Justices. According to the mythology of clerkship on the Court, law clerks are gifted young lawyers who spend a year as apprentices to the giants of the law. The mythmakers are usually the clerks themselves, who—often on the occasion of their Justices' retirement or death—reflect warmly on the professional and personal lessons learned and bonds forged during the clerkship year.^ Rehnquist' s Justice was Robert H. Jackson, one of the Court's major twentieth century figures and one of its most complicated personalities, but the clerk in this instance has been notably uninterested in tracing his lines of connection with Jackson. Yet the links between the two have much to say about both judicial performance and the role of the Court. Chief Justice Rehnquist presently sits with two of the Court's four former * Associate Professor of Law, Widener University School of Law. A.B., Bryn Mawr College; Ph.D., J.D., Yale University. I would like to thank Alan Garfield, Mary Brigid McManamon, and Philip Ray for their valuable comments on earlier drafts. Thanks, too, to my research assistants, David Grantz and Erika Sokoloff, for their help. 1. Rehnquist joined the Court on January 7, 1972. THE OXFORD Companion to the Supreme Court of the United States 982 (Kermit L. Hall ed. 1992) [hereinafter Oxford Companion to the Supreme Court]. 2. See, e.g., RICHARD N. GOODWIN, REMEMBERING AMERICA 24-42 (1989) (Justice Frankfurter); J. Harvie Wilkinson, III, Serving Justice 62-63, 67-78, 91-92, 121 (Justice Powell); Samuel Williston, Life and Law 91-94 (1940) (Justice Gray); Dean Acheson, Recollections of Service with the Federal Supreme Court, 18 Al\. L. Rev. 355 (1957) (Justice Brandeis); Bennett Boskey, Mr Chief Justice Stone, 59 Harv. L. Rev. 1200 (1946); Victor Brudney & Richard F. Wolfson, Mr. Justice Rutledge - Law Clerks' Reflections, 25 IND. L.J. 455 (1950); William Cohen, Justice Douglas: A Law Clerk's View, 26 U. Chi. L. Rev. 6 (1958); David M. Ebel, A Tribute to Justice Byron R. White, 107 Harv. L. Rev. 8 (1993); Christopher L. Eisgruber, John Paul Stevens and the Manners ofJudging, 1992/1993 ANN. SURV. AM. L. xxix; Alfred McCormack, A Law Clerk's Recollections, 46 COLUM. L. REV. 710 (1946) (Chief Justice Stone); Daniel J. Meador, Justice Black and His Law Clerks, 15 ALA. L. REV. 57 (1962); Martha Minow, Thurgood Marshall, 105 Harv. L. Rev. 66 (1991); John H. Pickering et al., Mr Justice Murphy - A Note ofAppreciation, 48 MiCH. L. REV. 742 (1950); Richard A. Posner, William J. Brennan, Jr, 104 Harv. L. Rev. 13 (1990); Terrance Sandalow, Potter Stewart, 95 Harv. L. Rev. 6 (1981); Chief Justice Vinson and His Law Clerks, 49 Nw. U. L. REV. 26 (1954); Glen M. Darbyshire, Clerking for Justice Marshall, A.B.A. J., Sept. 1991 , at 48. For a spirited defense of his Justice by a law clerk, see Mark Tushnet, Thurgood Marshall and the Brethren, 80 GEO. L.J. 2109 (1992). 536 INDIANA LAW REVIEW [Vol. 29:535 clerks: Justice Stevens clerked for Justice Rutledge, and Justice Breyer clerked for Justice Goldberg. The final member of the group, retired Justice White, clerked for Chief Justice Vinson.'' None of these pairings, however, resonates in quite the way that the Jackson-Rehnquist relationship does. Both Jackson and Rehnquist saw themselves as outsiders when they gained access to the inner sanctum of Washington power. Both earned their Court appointments through loyal service to controversial Presidents, and both became centers of controversy after joining the Court. Both aspired to become Chief Justice, although only Rehnquist succeeded. Both became strong presences in the Court's conservative wing, and both came to care deeply about the Court as an institution, writing for legal and lay audiences about its role in our system of government. These parallels, while striking, are less significant than the jurisprudential similarities between the two. Both Jackson and Rehnquist became apostles of judicial restraint, preaching a limited role for the Court in resolving the claims of aggrieved litigants; both espoused a vision of federalism that weighed heavily on the side of state prerogatives; both tended to protect the rights of the community against the constitutional claims of disaffected individuals. Finally, both brought to Supreme Court cases poised at the intersection of law and politics the perspective of a lawyer who had built his career in the halls of executive power. It is here, however, that Jackson and Rehnquist part company. While Jackson, when faced with the crucial cases that shape the structure of government and the conscience of the nation, forged a complex legal vision that transcended politics, Rehnquist found a fai- simpler vision that treated law as easily distinguishable from politics. As law clerk to Jackson while the Court wrestled with two of its monumental cases^ — Youngstown Sheet & Tube Co. v. Sawyer^ and Brown v. Board ofEducation^ —Rehnquist already displayed a cast of mind that prevented him from learning one lesson that his Justice was eminently qualified to teach. An examination of the lives, opinions, and nonjudicial writings of both men will reveal the fundamental divergence in their approaches to the law that was first detectable during Rehnquist' s clerkship and emerged with greater clarity over the course of his career. I. Two Lives IN THE Law A. Robert H. Jackson Unlike many members of Franklin Roosevelt's New Deal administration, Robert Jackson came to Washington not from an Ivy League education and big 3. Justice Stevens clerked for Justice Rutledge in 1947-48; Justice Breyer clerked for Justice Goldberg in 1964-65; Justice White clerked for Chief Justice Vinson in 1946-47. Leonard Orland, John Paul Stevens, in 5 THE JUSTICES OF THE UNITED STATES SUPREME COURT 1 691 (Leon Friedman & Fred L. Israel eds., 1995); Leon Friedman, Stephen G. Breyer, in 5 id. at 1876; Leon Friedman, Byron R. White, in 4 id. at 1579. 4. 343 U.S. 579(1952). 5. 347 U.S. 483(1954), 1996] JACKSON AND REHNQUIST 537 city practice, but from an established career in western New York as a refined example of a country lawyer.^ He was bom to a family with deep roots in the area, and until Roosevelt drew him into government Jackson had remained, for practical as well as personal reasons, close to home. Altliough he did not attend college, he read widely and developed a literary style and eloquence that placed him close to Holmes and Cardozo. Because he could manage only one year at Albany Law School, Jackson's legal education came in large part from apprenticing in his cousin's law office—training far different from that of virtually all his future colleagues on the Courts He built a thriving and diverse practice in Jamestown, New York, where his chents included corporations and individuals and his cases included civil, administrative, and even a few criminal matters on both the trial and appellate levels.^ Jackson carried with him to the Supreme Court the value of self-reliance learned in his early practice years. He carried with him as well an icon of his independence, a magazine photograph of a man working alone at his desk, a laurel wreath above his head, and the caption, quoted from Kipling: "He travels fastest who travels alone."^ Jackson enjoyed his practice and intended his first assignment in Washington as general counsel for the Internal Revenue Bureau to be only a brief interlude. The work of a country lawyer offered him both the comfort of a valued role in a well ordered community and the opportunity to use his substantial legal abilities. Jackson celebrated the country lawyer as one who "understands the structure of society and how its groups interlock and interact, because he lives in a community so small that he can keep it all in view."*^ That perspective also teaches the country lawyer "how disordered and hopelessly unstable [society] would be without law" and that "in this country the administration ofjustice is based on law practice, ''^^ Beyond such abstract satisfactions, his practice also offered Jackson what was for him the chief pleasure of lawyering, the act of advocacy,'^ because 6. Eugene C. Gerhart, America's Advocate: Robert H. Jackson 46 (1958). Gerhart's biography is uncritical, admiring, and at times adulatory. For an admiring assessment of Jackson's career in practice, see Charles S. Desmond, The Role of the Country Lawyer in the Organized Bar and the Development ofthe Law, in Mr. JUSTICE JACKSON: FOUR LECTURES IN His Honor 16-28 (1969) [hereinafter Mr. Justice Jackson]. 7. Gerhart, supra note 6, at 33-34; John L. O'Brian, Introduction, The Role of the Country Lawyer, in MR. JUSTICE JACKSON, supra note 6, at 8. 8. For a discussion of Jackson's legal career in Jamestown, see Gerhart, supra note 6, at 35-45. 9. Id. at 48. The photograph had belonged to Frank Mott, the cousin in whose law office Jackson had apprenticed. Id. at 33. When Jackson began his practice, he shared Mott's offices but remained an independent practitioner. Id. at 35. 10. Robert H. Jackson, Tribute to Country Lawyers: A Review, A.B.A. J., March 1944, at 138. 11. Id. 12. Gerhart reports Jackson's comments in an interview with his biographer: "I like the combat. I always liked the underdog's side, but I had no great emotion about it and no conviction that the underdog is always right, like some people think. ... I was never a crusader. I just liked 538 INDIANA LAW REVffiW [Vol. 29:535 the variety of his cases suppHed a technical challenge he relished.'^ In Washington, however, Jackson was compelled to balance advocacy with politics in his work at the Internal Revenue Bureau and subsequently in other posts in the Justice Department with which Roosevelt tempted him to remain with the administration. Jackson performed successfully but left without regret when the President appointed him Solicitor General in 1938.''* In the post of Solicitor General he found a job which suited his talents and tastes and which Justice Brandeis appreciatively thought he should hold for life.'^ Jackson described his appointment as Solicitor General as a homecoming: Coming back to the practice of law, which I did in the Solicitor General's office, was like coming home after being out in a bad storm. I was delighted with the work. I cut off other types of things as fast as I could and settled down to the legal work of the Department of Justice in the Supreme Court and other appellate courts. I entered upon the most enjoyable period of my whole official Hfe.'^ As the government's advocate, Jackson had little difficulty in forgoing "the assertion of one's individual eccentricities" and embracing wholeheartedly his a good fight!" Gerhart, supra note 6, at 36. 13. Jackson described the work of the country lawyer as tenacious advocacy: Once enlisted for a client, he took his obligation seriously. He insisted on complete control of the litigation—he was no mere hired hand. But he gave every power and resource to the cause. He identified himself with the client's cause fiilly, sometimes too fully. He would fight the adverse party and fight his counsel, fight every hostile witness, and fight the court, fight public sentiment, fight any obstacle to his client's success. He never quit. . . . The law to him was like a religion, and its practice was more than a means of support; it was a mission. Jackson, supra note 10, at 139. 14. From February 1934 Jackson served for two years as General Counsel of the Bureau of Internal Revenue, then briefly as Assistant Attorney General for the Tax Division, and finally as Assistant Attorney General for the Antitrust Division until his appointment on March 5, 1938 as Solicitor General. Warner W. Gardner, Government Attorney, 55 COLUM. L. Rev. 438, 440-41 (1955). As counsel to the Bureau of Internal Revenue, he directed the government's civil litigation against Andrew Mellon. Although Jackson had recommended strongly against charging fraud, Roosevelt decided to include the fraud claim to protect the Justice Department, which had failed earlier to secure a criminal fraud indictment against Mellon. See Philip B. Kurland, Robert H. Jackson, in 4 THE JUSTICES OFTHE UNITED STATES SUPREME COURT 1287 (Leon Friedman & Fred L. Israel eds., 1995). As Assistant Attorney General, Jackson worked in support of Roosevelt's court packing plan, giving speeches and testifying before the Senate Judiciary Committee. Gerhart, supra note 6, at 1 08- 1 5. 1 5. Felix Frankfurter, Mr. Justice Jackson, 68 Harv. L. Rev. 937, 939 (1955). See also Kurland, supra note 14, at 1299. 16. Kurland, supra note 14, at 1296 (quoted from Jackson's taped interviews for the Oral History project of Columbia University). I 1996] JACKSON AND REHNQUIST 539 client's position.'^ Even as a committed advocate Jackson acknowledged his obligation to deal candidly and honorably with the Supreme Court, which traditionally looked to the Solicitor General for an evenhanded assessment of the law.'^ He also, however, approached his government litigation as he had his Jamestown cases, with the practitioner's pragmatic calculation of the votes needed to win.'^ What Jackson seems to have relished in his work as Solicitor General was the chance to serve Roosevelt and at the same time to serve his own conception of the effective advocate. His elevation to Attorney General in 1940 was the natural next step in his progress toward the Supreme Court, but for Jackson it was also a move to a less congenial position. Although as Solicitor General he had continued to advise the President, as Attorney General he was less the government's advocate and more the President's lawyer. ^^ During the eighteen months that Jackson served as Attorney General, Roosevelt looked to him for political assistance as well as legal counsel.^' Although Jackson had occasionally been mentioned as a presidential nominee for the 1940 election, he accepted Roosevelt's decision to run for a third term with equanimity, even when he was passed over in favor of Henry Wallace as the vice presidential candidate.^^ Jackson attended the 1940 convention and later campaigned actively for Roosevelt.^^ Jackson's flirtation with national political office was brief and, at least according to Harold Ickes, Roosevelt's Secretary of 17. /J. at 1297. 18. Id. For an account of the Court's expectations concerning the Solicitor General, see Lincoln Caplan, The Tenth Justice 19-32(1 988). 19. "As long as I was Solicitor General, I was dealing with a Court on which most of the members were of the old Court and I needed them to make up a majority." Kurland, supra note 14, at 1297. 20. Jackson's work for the President during his time as Solicitor General included reviewing the Neutrality Proclamation of 1939 and suggesting the deletion of Canada; Jackson also participated in studies of the implications of war for the American economy. Gerhart, supra note 6, at 179-82. See also Kurland, supra note 14, at 1298, 1301. 21. Jackson was appointed Attorney General in January 1940 and served until July 1941. Gerhart, supra note 6, at 193, 231. According to Kurland, "[tlhe change in position accentuated rather than diminished Jackson's ties with the President." Kurland, supra note 14, at 1299. Kurland quotes Jackson on his new post: I think the Attorney General has a dual position. He is the lawyer for the President. He is also, in a sense, laying down the law for the government as a judge might. I don't think he is quite as free to advocate an untenable position because it happens to be his client's position as he would if he were in private practice. He has a responsibility to others than the President. He is the legal officer of the United States. Mat 1299-1300. 22. Gerhart, supra note 6, at 199, 200-01 , 204. Roosevelt had also apparently spoken to Jackson about running for the governorship of New York in 1938, but the state Democratic party, especially its national party leader, Jim Farley, was not receptive. Id. at 122-23, 136-38. 23. /^. at 205, 206-08. Ik 540 INDIANA LAW REVIEW [Vol. 29:535 the Interior, appropriately so.^"^ Jackson was more comfortable performing traditional lawyer's tasks. He was instrumental in drafting the lend lease agreement that permitted the President to send obsolete destroyers to Great Britain in exchange for use of British military bases,^^ and he formulated the administration's international law position on just and unjust wars.^^ Jackson's tenure as Attorney General came to an early end in July of 1941, however, when he took the Supreme Court seat vacated by Justice Stone's elevation to Chief Justice. ^^ Roosevelt had long dangled before Jackson the prospect of a place on the Court, particularly Chief Justice, and Jackson keenly wanted the center seat.^^ At the retirement of Chief Justice Hughes, Roosevelt considered Jackson and Stone for the appointment. Although Roosevelt reportedly favored Jackson, he was persuaded by Justice Frankfurter that, with war imminent, the selection of the Republican Stone would create "confidence in you as a national and not a partisan President."^^ Roosevelt's obvious enthusiasm for Jackson gave rise to a rumor that the sixty-eight year old Stone had agreed to step down as Chief Justice at the age of seventy to make way for Jackson. Although the rumor was strongly denied by Stone, who later insisted that had any such deal been proposed "I should have declined the appointment,"^^ it nonetheless contributed to a vague sense that Jackson was entitled to the chief justiceship when it next became vacant. It was thus Jackson's fate that, named to the Supreme Court at the age of forty-nine, he seemed somehow to have already lost his chance for the two most prestigious posts in American government and to be still awaiting the call to a higher destiny. Jackson's career on the Supreme Court is usually divided into two periods separated by his service as the United States' chief prosecutor at the Nuremberg War Crimes Trials. In the first period, he remained recognizable as the New Dealer who had supported Roosevelt's policies for a decade. After his return from Nuremberg, however, Jackson moved farther to the Court's right, finding his 24. After observing Jackson at the convention, Ickes assessed Jackson's political potential with a skeptical eye. Jackson was, he thought, "more of a lawyer than an aggressive leader. If he is ever to become President I hope that he will develop a disposition not only to stand for what is right but to fight for it." 3 Harold L. Ickes, Thqe Secret Diary of Harold L. Ickes 267 (1955). 25. GERHART,5M/7ra note 6, at 215-21. 26. Id. at 223-27. 27. Oxford Companion to the Supreme Court, supra note 1 , at 98 1 . 28. In 1940 Roosevelt appointed Frank Murphy, his attorney general, to the seat created by the death of Justice Pierce Butler. According to Gerhart, Jackson advised Roosevelt that Murphy was ill-suited to the Court because "he was not interested in legal problems . . . nor in the law as a philosophy," but Roosevelt persevered with the appointment, which allowed him to shift Jackson to the post of attorney general. Gerrart, supra note 6, at 183. See Henry J. Abraham, Justices AND Presidents 229 (3d ed. 1992). 29. Alpheus Mason, Harlan Fisk Stone: Pillar of the Law 567 (1956). For a discussion of the Stone appointment, see Abraham, supra note 28, at 232-34. See also Gerhart, supra note 6, at 230-3 1 . 30. Mason, supra note 29, at 573. 1996] JACKSON AND REHNQUIST 541 principal ally in another former New Deal advocate, Felix Frankfurter, who counseled the Court to exercise judicial restraint.^' This description is far too simple for a complex figure like Jackson, but it does suggest the significant break between the Jackson who left the Court for the prosecutorial challenge of Nuremberg and the Jackson who returned to a Court led by its new Chief Justice, Fred Vinson. Nuremberg itself, although a powerful and consuming experience, does not wholly explain Jackson's transformation.^^ His disappointment over his failure to secure the chiefjusticeship, a disappointment which manifested itself in an episode of remarkable bitterness and indiscretion, also contributed to Jackson's sense that his return to the Court would be less than a triumphant coda to his legal career. Although there are several interpretations of this episode, some more critical of Jackson than others, the outlines are relatively clear.^^ When Chief Justice Stone died suddenly in April 1946, Jackson was still in Nuremberg and Harry S. Truman had succeeded Roosevelt. Two rumors began circulating in Washington: that Jackson was the likely successor and that Justice Black had notified President Truman that he would resign if Jackson were named Chief Justice. Black and Jackson had been at odds before Jackson's departure over Black's decision to sit in Jewell Ridge Coal Corp. v. Local No. 6107, United Mine Workers ofAmerica,^^ which was argued by his former law partner. Jackson objected and published an opinion obliquely critical of Black's presence.^^ Aware of the tension between Black and Jackson, Truman consulted two former members of the Court before selecting Fred Vinson, then his Secretary of the Treasury, to lead the Court and 3 1 . See, e.g., Glendon SCHUBERT, DISPASSIONATE JUSTICE 5-6 (1969). Schubert quotes two other commentators, Alan F. Westin and Max Lemer, who express a similar view of Jackson's career. /^at6. 5ee o/^o Wiluam H. Rehnquist, The SUPREME COURT: How It Was, How It Is 85-86(1987). 32. There are varying assessments of Jackson's success at Nuremberg, particularly in his cross-examination of Goering, although his opening and closing statements have been widely admired. For a flattering treatment of his work at Nuremberg, see Gerhart, supra note 6, at 352- 454. For a harsher perspective, see, e.g., Telford Taylor, The Anatomy of the Nuremberg Trials 335-41 (1992). 33. For an excellent and thorough analysis of the incident, see Dennis J. Hutchinson, The Black-Jackson Feud, 1988 Sup. Cr. REV. 203. For an account favorable to Jackson, see Gerhart, supra note 6, at 240-88. According to Hutchinson, much of Gerhart' s version is an almost verbatim reprinting of Jackson's own 1949 unpublished memorandum. Hutchinson, supra at 224-25. For an account favorable to Black, see John P. Frank, Mr. Justice Black 124-31 (1949). 34. 325 U.S. 161 (1945). 35. Jackson's opinion was a concurrence in the Court's denial of a petition for rehearing based in part on Black's participation in the case. Jewell Ridge Coal Corp. v. Local No. 6167, United Mine Workers, 325 U.S. 897 (1945) (Jackson, J., concurring). Jackson noted that questions of recusal could be resolved only by individual Justices and, in a mild barb, that the Court lacked the power "to exclude one of its duly commissioned Justices from sitting or voting in any case." Id. According to Hutchinson, the concurrence "looked innocuous on its face but . . . privately enraged Black." Hutchinson, supra note 33, at 208. 542 INDIANA LAW REVIEW [Vol. 29:535 restore its harmony.^^ Jackson responded with an angry cable to Truman that attacked Black's conduct in Jewell Ridge and asked the President to release the cable in order to dispel the public impression that '"something sinister has been revealed to you which made me unfit for Chief Justice. '"^^ Ignoring Truman's response, which asked him to keep the matter private, Jackson then sent a cable to the House and Senate Judiciary Committees again detailing his charges against Black and followed the cable with a press conference.^^ In airing his grievance, he aired as well the confidential exchanges of the Justices' conference room, an infraction rarely committed by members of the Court. As is often the case with uncharacteristic behavior, this explosion from the usually controlled Jackson fell wide of its mark. Black, who remained silent throughout the controversy, emerged unscathed, while Jackson's reputation suffered.^^ Any future prospect of becoming Chief Justice now effectively ended, Jackson returned from Nuremberg to resume his judicial duties."*" In later years Jackson insisted that he had not really wanted to be Chief Justice: Of course, it was the easiest thing in the world for them to say, and the most difficult thing in the world to meet—I never attempted to meet it—that I was personally disappointed and bitter about the appointment. 36. Truman consulted former Chief Justice Hughes and former Associate Justice Owen Roberts, who reportedly advised him not to elevate a member of the Court. C. Herman Pritchett, The Roosevelt Court 26 (1948). 37. Hutchinson, supra note 33, at 220. 38. Id. at 220-21. Even Gerhart concedes that "Jackson may have been imprudent and reckless to issue the statement." Gerhart, supra note 6, at 267. His account also indicates that "Jackson appears to have consulted no one" before sending his cable. Id. at 261. 39. In his account favorable to Justice Black, for whom he clerked, John P. Frank offers these explanations for Jackson's behavior: Three answers circulated through the legal profession: first, that Jackson was a virtuous man, revealing an evil situation; second, that Jackson sought to wreak personal vengeance on the man he thought responsible for barring his path to the Chief- Justiceship; and third, that the enormous strain of the Nuremberg trial, a serious failure both in publicity and in results from a prosecutor's standpoint, caused an irrational act for which there is no rational explanation. Frank, supra note 33, at 131. In a magazine article written shortly after the event, Arthur M. Schlesinger, Jr., characterized Jackson's behavior as the act of a weary and sorely beset man, committed to a harassing task in a remote land, tormented by the certainty that the chief justiceship had now passed forever out of his reach. Only someone who has lived the unreal life of an army of occupation can understand the violence of his response to the fragmentary reports of Washington intrigue; he reacted as a G.I. would to rumors of his wife's infidelity. The Supreme Court:1947, FORTUNE, Jan. 1947, at 78, quoted in Pritchett, supra note 36, at 28- 29. 40. Schubert refers to the sending of the cable as "political suicide." SCHUBERT, supra note 31, at 5. 1 996] JACKSON AND REHNQUIST 543 Unless one knows the inner workings of the court, you can't probably realize that one is really better off as an associate justice of the court in everything except kudos than he is as chief, because the chief has a lot of trivial details to attend to. There was no use in answering that, however/' It seems clear, however, that Jackson reacted out of frustration at seeing the long delayed prize lost by a conjunction of unhappy circumstances—Roosevelt's death a year earlier, Jackson's own absence from Washington in an era of limited trans- Atlantic communication, the internal tensions of the Court, the Washington rumor mill. Bruised by his brush with judicial politics, Jackson retreated to the legal fastness of the Supreme Court bench, where he served for the remaining eight years of his life. His work during that final period suggests that he reflected on the entanglements of the Court and the political world and, when the occasion presented itself, found ways to accommodate the separate strands of law and politics. B. William H. Rehnquist The facts of William H. Rehnquist' s life are fewer and more conventional than those of Jackson's biography. Rehnquist was born a generation later, in 1924, in Milwaukee, Wisconsin, where he grew up in a comfortable suburb. His education was interrupted by World War II. After briefly attending Kenyon College, he enlisted in the Army Air Corps, serving as a weather observer. When the war ended he resumed his studies under the G.I. Bill at Stanford University, majoring in political science and graduating as a member of Phi Beta Kappa. Rehnquist then took two master's degrees in political science, one from Harvard and one from Stanford, before entering law school at Stanford."*^ In December 1951, he 4 1 . Hutchinson, supra note 33, at 226. (quoting VIII COLUMBIA UNIVERSITY Oral History Project 527). Hutchinson observes that Jackson seethed over what he saw as behind-the-scenes efforts to keep him from the center chair of the Court. Those remarks not only behe his denial, but they reveal that by 1952 Jackson had come to believe that Douglas more than Black had been responsible within the Court for his defeat. Id. Gerhart quotes Jackson as saying somewhat ambiguously, in interviews conducted in 1948 and 195 1 , that "I'm happier as Associate Justice than I could be as Chief Justice. I don't say that I would have refused it. I couldn't remember anything in my mind that I would rather do than be Chief Justice." GERHART, supra note 6, at 287. 42. There is some discrepancy in accounts of Rehnquist' s education. According to Sue Davis, he received a master's degree in political science from Stanford in 1949 and a master's degree in government from Harvard in 1950. SUE Davis, Justice REHNQUIST AND THE Constitution 5 (1989). The biographical sketch that appears in the Senate Judiciary Committee Report prepared in November 1971 omits the master's degree from Stanford and refers to a master's degree from Harvard in history. Senate Judiciary Comm., Nomination of William H. Rehnquist, S. Exec. Doc. No. 16, 92d Cong., 1st Sess. 2 (1971), reprinted in 8 The Supreme Court of the United States: Hearing and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1 9 1 6-75 (Roy 544 INDIANA LAW REVIEW [Vol. 29:535 graduated first in his class and became Justice Jackson's law clerk in the middle of the Court's 1951 Term. He stayed for the 1952 Term before beginning a varied private practice, reminiscent of Jackson's, in Phoenix, Arizona."*^ Through his conservative political activities in Phoenix, Rehnquist became acquainted with Richard G. Kleindienst,"^"^ who became deputy attorney general in the Nixon administration. In 1969 Rehnquist was named assistant attorney general in charge of the Office of Legal Counsel, the office that provides legal advice to the President. It was from that post, in which his duties included screening potential Supreme Court nominees, that Rehnquist was appointed to the Court in 1971 and in January 1972 took the seat that Jackson had once occupied. Rehnquist' s conservative views expressed during his tenure in the executive branch and in his years in Phoenix made his nomination controversial;"*^ he was ultimately confirmed by a vote of sixty-eight to twenty-six, which reflected the reservations of many Democratic and a few Republican senators about his nomination."*^ The controversy was renewed in 1986, when President Reagan nominated Rehnquist to replace retiring Chief Justice Burger, with the focus on a memorandum concerning Brown v. Board ofEducation^^ written by Rehnquist as Jackson's law clerk. Again, following a bitter debate, Rehnquist was confirmed, this time by the smallest margin of any Court appointee to that date."*^ In some respects, the differences between Rehnquist and Jackson reflect the M. Mersky & J. Myron Jacobstein eds., 1977) [hereinafter Nominations of Supreme Court Justices]. See also Chris Henry, William H. Rehnquist, in 5 THE JUSTICES OF THE UNITED STATES Supreme Court 1666 (Leon Friedman & Fred L. Israel eds., 1995), which refers only to a master's degree from Harvard in political science. The biographical data sheet available from Chief Justice Rehnquist' s chambers lists a 1948 master's degree from Stanford and a 1950 master's degree from Harvard. 43. Rehnquist worked with a succession of Phoenix firms. See Nominations of Supreme Court Justices, supra note 42, at 2. Rehnquist "joined a small Phoenix law firm and set about pursuing the day-to-day drudgery of wills, estates, real estate closings, and property disputes that are the bread and butter of any small law firm involved in a general practice." Henry, supra note 42, at 1668. 44. Rehnquist had opposed the Arizona civil rights bill, a public accommodations ordinance in Phoenix, and integration plans for the Phoenix schools. See Donald E. Boles, Mr. Justice Rehnquist, Judiciai^ Activist 75-77 (1987). For copies of his written statements on some of these issues, see Nominations of Supreme Court Justices, supra note 42, at 305-07 (public accommodations ordinance), 309 (de facto segregation in the Phoenix schools). 45. For accounts of Rehnquist' s activities in Phoenix and in the Office of Legal Counsel, see Davis, supra note 42, at 6-7; Henry, supra note 42, at 1668-70; See generally BOLES, supra note 44. 46. Abraham, supra note 28, at 321-22. The three Republicans voting against Rehnquist were Senators Clifford P. Case, Jacob K. Javits, and Edward W. Brooke. Id. 47. 347 U.S. 483(1954). 48. Rehnquist was confirmed by a vote of sixty-five to thirty-three; the votes in opposition "constituted the largest number of votes ever cast against a nominee who won confirmation." Abraham, supra note 28, at 35 1 . 1996] JACKSON AND REHNQUIST 545 differences between their generations. Where Jackson was largely self-educated, though among the most erudite of the Court's members, Rehnquist attended some of the country's most distinguished schools. Where Jackson entered practice at the age of 21, Rehnquist was delayed by military service and his clerkship until the age of 29. Notwithstanding their differences, significant similarities exist between Rehnquist and Jackson as well. Both came to the Court not from a lower bench but from the executive branch, where each worked for a President who locked horns with the Court and sought to redirect it through his appointments. More tellingly, each was involved in the judicial selection process, though from rather different perspectives. Jackson was an intimate advisor to Roosevelt and was given to understand early on that a seat on the Court would eventually be forthcoming, while Rehnquist worked on several of Nixon's unsuccessful nominations before he himself was sent with some suddenness to the Court by a President who had difficulty remembering his name.'*^ The most intriguing similarity between the two Justices, however, is their shared sense of themselves as loners within the powerful institutions they served. Jackson characterized himself as "an individualist of the school of Emerson. Self- reliance, self-help and independence of other people I believe to be the basis of character and essential to success."^" As the photograph he hung in his Supreme Court chambers suggests, Jackson might advise his clients, including the President, but at times of personal crisis he took no advice himself. When he sent the cable denouncing Justice Black and exposing the internal dissensions of the Court, Jackson apparently consulted no one; according to his own version of events, only slightly altered and presented by Gerhart, "[tjhat he was engaged in preparing such a statement was known only to his son and to his secretary."^' Gerhart explains this mode of proceeding as Jackson's wish not to seek advice he knew he was unlikely to follow, but the decision seems entirely characteristic of Jackson. Despite his years in the Roosevelt inner circle and on the Court, he still took as his model the independent lawyer who follows his own counsel, on this occasion with unfortunate results. Jackson remained a loner on the Court as well, where his elegant opinions and literary style provided an ironic counterpoint to his 49. In a July 21, 1971 tape of a White House conversation, President Nixon referred to Rehnquist as Renchburg: "You remember that meeting we had when I told that group of clowns we had around there. Renchburg and that group. What's his name?" Nixon's adviser, John Ehrlichman, helpfully supplies "Renchquist," and the President echoes "Yeah, Renchquist." Abraham, supra note 28, at 319. 50. Gerhart, supra note 6, at 62. Felix Frankfurter identified in Jackson "a preference for truculent independence over prudent deference and conformity." Felix Frankfurter, Foreword, 55 COLUM. L. Rev. 435, 436 (1955). 5 1 . Gerhart, supra note 6, at 261 . For an account of Jackson's independence as Solicitor General, see E. Barrett Prettyman, Jr., Robert H. Jackson: "Solicitor Generalfor Life, " 1992 SUP. Ct. Hist. Soc'Y Y.B. 75, 77. Prettyman quotes Charles E. Wyzanski, who worked in the Solicitor General's Office: "It may be that a secretary or two moved with him from place to place, but no first-class assistant. He never had a team nor did he ever evoke that kind of team loyalty in spite of the admiration of everybody who played with him had for him as a player." Id. 546 INDIANA LAW REVIEW [Vol. 29: 535 status as, with one brief exception, the only Justice without a university or law degree.^^ He tended to decide cases with a pragmatic eye, looking less to philosophic consistency than to the practical and commonsensical concerns of a practitioner, and thus to be less predictable than many of his colleagues. Rehnquist, too, came to the Court as an outsider. Recounting his first approach to the Court, as Jackson's law clerk in 1952, Rehnquist immediately describes himself as "surprised to have been chosen."^'' The picture that emerges from his narration is of a young man from the West, neither diffident nor unqualified for his position, but slightly naive and somewhat bemused at finding himself at the Court. Yet even this young Rehnquist quickly showed his independent spirit. In his first encounter with Justice Frankfurter, Rehnquist had what he calls "the temerity to criticize" a recent opinion by Frankfurter and the persistence to meet the Justice's challenge to find case law in support of the law clerk's position.^"* Returning to the Court twenty years later, Rehnquist remained an independent spirit. As an outspoken conservative on a Court still dominated by liberal colleagues, Rehnquist was frequently a solitary dissenter. In 1974 his law clerks, who called him the "lone dissenter," presented him with a Lone Ranger doll that a decade later still occupied a place of pride on his office mantelpiece, the iconic counterpart to Jackson's solitary traveler. ^^ C. The Lives Intersect Rehnquist served as Jackson's law clerk from February 1952 to June 1953. In his account of their initial interview, Rehnquist expressed surprise that Jackson had merely chatted about his practice experience rather than quizzing the applicant on some legal topic. When they met again at the start of Rehnquist' s clerkship, Jackson was both affable and pragmatic, concerned principally with entering his clerk on the government payroll. ^^ What is curious about this account is, to use one of Rehnquist's favorite literary allusions, Sherlock Holmes' dog that didn't bark." Rehnquist has written relatively little about his clerkship with 52. Of the Justices who served with Jackson, only James Byrnes, who spent just one year on the Court before resigning, had neither an undergraduate nor a law degree. Of the other Justices, Justice Black had a law degree from the University of Alabama but no undergraduate degree, and Justice Reed had undergraduate degrees from Kentucky Wesleyan University and Yale University but no law degree. See Congressional Quarterly's Guide to the Supreme Court 857-70 (Elder Witt ed., 2d ed. 1990). 53. Rehnquist, supra note 3 1 , at 1 7. 54. Id. at 76-77. 55. John A. Jenkins, The Partisan, N.Y. TiMES Mag., Mar. 3, 1985, at 28, 34. 56. At the first interview, Rehnquist was struck by Jackson's "pleasant and easygoing demeanor," though he left certain that he had lost his chance at the clerkship by failing to make a strong impression. REHNQUIST, supra note 31, at 20. When they met again in Washington, Rehnquist remarks that Jackson "greeted me with the affability I remembered." Id. at 23. 57. See Church of Scientology of Cal. v. Internal Revenue Service, 484 U.S. 9, 17-18 (1987); Harrison v. PPG Industries, Inc., 446 U.S. 578, 602 (1980) (Rehnquist, J., dissenting). In 1 996] JACKSON AND REHNQUIST 547 Jackson—these two anecdotes are among the few stories about his interactions with the Justice—and what he has written is remarkably detached and cool in tone. The coolness is particularly noticeable in its contrast to Rehnquist's clearly expressed affection for Justice Frankfurter, whom he found engaging and instructive.''^ Unlike most Supreme Court clerks who revisit their past, Rehnquist had nothing to say of what he learned from Jackson about either the law or the art ofjudging. In a talk he gave at Albany Law School in the Justice Jackson Lecture Program, Rehnquist recalled Jackson's reflection on life in Washington, but only after prompting from his father. ^^ Rehnquist's talk on Jackson's career is an oddly muted tribute for one Supreme Court Justice to pay another. The talk is peppered with disclaimers: that law clerks do not become the friends of their judges, that others knew Jackson far better than he, that Rehnquist and his fellow clerk received only "courtesy opportunities" to contribute to Jackson's celebrated opinion in Youngstown Sheet & Tube Co., and that Jackson's Christmas gift of an inscribed copy of his book, The Struggle for Judicial Supremacy, was most hkely "a traditional gift to law clerks so long as the copies supplied by the publisher lasted."^" When Rehnquist identifies the hallmarks of Jackson's career, his choices are not unqualified praise. Although he begins by invoking "Robert Jackson's remarkable similarity to Abraham Lincoln,"^^ that similarity is to Lincoln's "rare ability to profit from experience, to accommodate his views when that experience seemed to require accommodation, and yet to maintain throughout his life a sturdy independence of view."^^ Rehnquist cites Jackson's career as "a living testament to the fact that the legal profession is indeed a career open to the talents. "^^ Yet here too, the explanation seems to undermine the initial praise. The particular Jacksonian ability Rehnquist singles out is "doggedness," by which he means a combination of analytic ability and common sense, the legacy of Jackson's years in western the Sherlock Holmes story, Silver Blaze, the detective deduces from the dog's failure to bark that it was the trainer who attempted to harm a valuable horse. Sir Arthur Conan Doyle, Silver Blaze, in The Complete Sherlock Holmes 383, 400 (1953). 58. "I doubt that my fondness for Justice Frankfurter was any different from that of any other law clerk or law student whom he first dazzled and then befriended." REHNQUIST, supra note 3 1 , at 78. Even Frankfurter's instructive manner, which at times disturbed his fellow Justices, "made a warm admirer" of Rehnquist. Id. at 81 . 59. When Rehnquist's parents visited him during his clerkship, Justice Jackson "generously invited the three of us to have lunch with him in his chambers." During that lunch, Jackson observed that "'Washington is a bad city for a public official to live in. It takes everything from you, and gives nothing back.'" William H. Rehnquist, Robert H. Jackson: A Perspective Twenty- five Years Later, 44 ALB. L. REV. 533, 535 (1980) [hereinafter Robert H. Jackson]. Rehnquist recalled the conversation only when "stimulated by my father's recollection" and conceded that "at this point in my life [I] would have to say that there is more than a little truth to them." Id. 60. Id. at 533, 536-38, 540. 61. /^. at 536. 62. Id. 63. Id. 548 INDIANA LAW REVIEW [Vol. 29:535 New York.^"* Although Rehnquist has some praise for Jackson's intellect and prose,^^ he seems more interested in the blend of character and experience that shaped Jackson's magnum opus, his Youngstown Sheet & Tube Co. concurrence.^^ Youngstown Sheet & Tube Co. was the most important and controversial case decided during Rehnquist' s clerkship. Although Rehnquist disclaimed any role in shaping Jackson's concurrence, he also recalled the excitement among the law clerks as the Supreme Court first granted certiorari and then expedited oral argument to determine whether President Truman had the power to seize the nation's steel mills.^^ For a young man who had arrived in Washington only three months earlier, the Youngstown case was an extraordinary opportunity to watch from a prime vantage point as the Court resolved a power dispute between the executive and legislative branches of government within a few weeks: Never was a case more made to order for a group of Supreme Court law clerks, all of whom fancied themselves whiz kids, than this one which like Minerva seemed to have sprung full-blown from the Washington environment in which we lived and worked. As I recall, in fact, during one lunch hour we even took a formal vote of the clerks on how the case should be decided. The result was an even division between eighteen law clerks, nine voting for the government and nine voting for the steel companies. ^^ Rehnquist himself favored the steel companies because he believed that "the balance of power within the federal establishment had shifted markedly away from Congress and toward the president in the preceding fifteen years, and that this trend was not a healthy one."^'^ He was therefore doubly proud, as a law clerk and a partisan, to hear Jackson wryly disassociate himself from a prior opinion, written as Roosevelt's Attorney General, confirming the President's power to seize a manufacturing plant. ^° 64. Id. 65. When I say "ability," I do not mean simply analytical ability, although I think he possessed that in great degree. I do not mean ability to charm an audience or to add zest to an otherwise dull opinion by a pithy phrase, although I think he possessed these characteristics to a degree unmatched by his contemporaries or successors. Id. Elsewhere, Rehnquist observed that "Robert H. Jackson had one of the finest literary gifts in the history of the Supreme Court." Who Writes Decisions of the Supreme Court?, U.S. NEWS & World Report, Dec. 13, 1957, at 74 [hereinafter Who Writes Decisions]. 66. Robert H. Jackson, supra note 59, at 539-40. 67. Rehnquist, supra note 3 1 , at 93. Rehnquist and his co-clerk "were shown the opinion in draft form, and as I recall, asked to find citations for some of the propositions it contained, but that was about the extent of our participation." Id. 68. Mat 61-62. 69. Id. at 63. 70. Jackson commented from the bench that he was afraid that a lot of the basis for the I 1 996] JACKSON AND REHNQUIST 549 As an observer of the Youngstown case, Rehnquist offered his explanations, past and present, for the Court's determination that the President's seizure of the steel plants was invalid. The young Rehnquist looked to the personal histories of the Justices; because all nine had been appointed by either Roosevelt or Truman, and eight of the nine had been politically active Democrats, he presumed that Truman had an edge.^' The older Rehnquist, a veteran of two years in the executive branch and sixteen years on the Court, looked instead to external factors to explain Truman's defeat: intense press coverage of the dispute, reaction against the government's original theory of unlimited executive power, the nation's coolness toward the Korean engagement, and Truman's own disfavor with the public.^^ Even Justices with significant political backgrounds, he concluded, are affected by the currents of public opinion. It is striking that Rehnquist' s theories, both as law clerk and as Justice, favor context overjurisprudence. His own Justice produced a concurrence, discussed below, which has come to be regarded as the Court's most valuable distillation of the sharing of power between executive and legislative branches. Yet the lesson Rehnquist seems to have learned from the way that Jackson and four other Democrats separated politics from law is that Justices are unable to "isolate themselves from the tides of public opinion" in resolving public controversies of great magnitude.^^ Jackson and Rehnquist faced the same mixture of law and politics from different perspectives in Brown v. Board ofEducation,^'* which began its passage through the Court during Rehnquist' s clerkship. In the conference following the December 1953 reargument, Jackson made it clear to his colleagues that he supported an end to segregation but found it difficult to characterize the Court's government's seizure was being laid at his doorstep, and [Solicitor General] Perlman agreed. Jackson then responded: "I claimed everything, of course, like every other Attorney General does. It was a custom that didn't leave the Department of Justice when I did." Every law clerk likes to see his own boss look "sharp" on the bench, as if the justice's performance somehow reflected credit upon the law clerk. 1 virtually glowed with satisfaction at Justice Jackson's comment, not only because I thought it was both relevant and witty, but because it seemed to me to suggest that he did not agree with the government's position. Id. at 90-9 \. 71. /^. at64. 72. Id. at 95-98. Rehnquist even flirts with a theory he calls '"geographic determinism,'" because the three dissenters, Chief Justice Vinson and Justices Reed and Minton, "had all grown up in towns along the Ohio River not more than two hundred miles apart." Id. at 92. 73. Id. at 98. Rehnquist is careful to note that "[n]o judge worthy of his salt would ever cast his vote in a particular case simply because he thought a majority of the public wanted him to vote that way," but he distinguishes that view from "saying that no judge is ever influenced by the great tides of public opinion that run in a country such as ours. Judges are influenced by them, and I think such influence played an appreciable part in causing the Steel Seizure Case to be decided the way it was." Id. 74. 347 U.S. 483 (1954). 550 INDIANA LAW REVffiW [Vol. 29:535 role in achieving that result as judicial rather than political. Quoting from conference notes kept by Justices Burton and Frankfurter, Bernard Schwartz has described Jackson's presentation: Jackson started his conference presentation by noting, 'Cardozo said the work of this Court is partly statutory construction and partly politics. This is a question of politics.' What he meant by this is shown by the Jackson gloss on the Cardozo statement in a posthumous work: 'Of course [Cardozo] used 'politics' in no sense of partisanship but in the sense of policy-making.' In this sense, Jackson told the conference, a decision against segregation would be 'a political decision.' The segregation issue was 'a question of politics.' The Justice also said that the decision 'for me personally is not a problem, but it is difficult to make it other than a political decision. . . . Our problem is to make a judicial decision out of a political conclusion'—and to find 'a judicial basis for a congenial political conclusion.' The clear implication was that he would support a properly written decision striking down segregation. 'As a political decision [I] can go along with it.'^^ Jackson, then, was wrestling with the dilemma of grounding a desegregation decision in law rather than policy or sociology. He was wary of being led by his personal sympathies toward a result that reflected the Justices' proclivities and not a valid statement of the law. Jackson's struggle is expressed most distinctly in the draft concurrence he prepared but never filed. In Part I of the draft, he invoked his own education in an integrated school "where Negro pupils were very few" as predisposing him to end segregation, but he immediately dissociated the personal from the legal: "Decision of these cases would be simple if our personal opinion that school segregation is morally, economically or politically indefensible made it legally so."^* Jackson saw segregation as rooted in social custom and in the politics of Reconstruction; its removal would mean "nothing less than a substantial reconstruction of legal institution [sic] and of society."^^ Although he doubted the Court's power to effect such a drastic change by its decision, he believed that nonjudicial forces would eventually accomplish the same result: "within a generation it will be outlawed by decision of this Court because of the forces of mortality and replacement which operate upon it."^^ The issue for Jackson had two distinct components. One was whether the law supported a decision declaring segregated education unconstitutional. The other was whether such a decision fell 75. Bernard Schwartz, ChiefJustice Rehnquist, Justice Jackson, and the Brown Case, 1 988 Sup. Ct. Rev. 245, 253. 76. Robert Jackson, Unfiled Draft Concurrence in Brown v. Board of Educ. 1 (March 15, 1994) (on file with the Library of Congress, Manuscript Division, Jackson File). 77. Id. at 2. 78. /^. atl. 1 996] JACKSON AND REHNQUIST 551 within "the limitations on responsible use ofjudicial power in a federal system.*'^^ Jackson ultimately answered both questions affirmatively, but only after establishing the difficulties attendant on that outcome. In Part II of his draft Jackson examined the legislative history of the Fourteenth Amendment, subsequent congressional legislation, the conduct of the states in reliance on the Constitution, and judicial precedent. He found nothing in "the conventional material of constitutional interpretation" to support the view that maintenance of segregated schools "up to the date of this decision, . . . had violated the Fourteenth Amendment."*" In Part III he explored the limitations inherent in judicial decisionmaking as a means of eliminating segregation.*' He pointed out that because courts can resolve only specific cases, they are ill suited to sweeping social transformations that traditionally are the prerogative of the legislative branch. Thus, "[a] Court decision striking down state statutes or constitutional provisions which authorize or require segregation will not produce a social transition, nor is the judiciary the agency to which the people should look for that result."*^ Entrusting the enforcement of a Court decision to the lower courts "does not end but begins the struggle over segregation,"*^ and Jackson declined to impose on local courts the difficult burden of "continued litigation under circumstances which subject district judges to local pressures and provide them with no standards to justify their decisions to their neighbors, whose opinions they must resist."*"* Jackson rejected the argument that the Court must act because Congress had failed to do so: "The premise is not a sound basis for judicial action."*^ Only in the final section of the draft, captioned "The Limits and Basis of Judicial Action," did Jackson find a role for the Court to play. He refused to decide whether the courts that had earlier upheld segregation "were right or wrong in their times."*^ Instead, he relied on the dramatic changes in the condition of the Negro, together with the effects of racial assimilation and the transformation of education from a privilege for the few to a statutorily enforced right, as the basis for invalidating segregation. "It is," Jackson concluded, "neither novel nor radical doctrine that statutes once held constitutional may become invalid by reason of changing conditions."*^ He remained, however, cautious about the extent of the Court's role in imposing the new order. It should shape "a resonably [sic] 79. Id. at 4. Jackson makes clear that the related issue of whether the Court's decision will reduce or exacerbate racial tensions "is not my responsibility" but he does express concern that a "Pharisaic and self-righteous approach" by the Court's northern majority would as a practical matter "retard acceptance of this decision." Id. 80. Id. at 10. 81. /f/. at 11-23. 82. /J. at 14. 83. Id. 84. /27o jj^gsg passages have in common a self-deprecating quality that seems to appeal to a whimsical strain in Rehnquist that is more often described by others than demonstrated in his own opinions."'' Rehnquist' s appreciation of Jackson's literary quality reveals itself in his echoing of Jackson's conversational cadence and use of metaphor as well as in occasional allusions to works of literature, a fairly regular custom of Jackson' s.^^^ A largely self-taught man, Jackson had been introduced to literature by a gifted high school English teacher^^^ and earned into his writing both his broad reading and his keen ear.^^"* His range of literary allusion was impressive: it included Lord Byron,^^^ John Miiton,^^^ Mark Twain,'^''^ and Gilbert and SuUivan,^^^ as well as traditional proverbs^^^ and the writings of William James. ^^^ Rehnquist' s choices tend to be somewhat more limited in range and more obvious in content, including Virginia, 448 U.S. 5.55, 605 (1980) (Rehnquist, J., dissenting) and Franks v. Delaware, 438 U.S. 1 54, 1 86 ( 1 978) (Rehnquist, J. , dissenting). 269. McGrath v. Kristensen, 340 U.S. 162, 177 (1950) (Jackson, J., concurring). 270. Id. at 178, cited with approval in Marek v. Chesny, 473 U.S. 1,13 (1985) (Rehnquist, J., concurring) and Califano v. Boles, 443 U.S. 282, 294 n.l2 (1979). 271. For a discussion of what he calls Rehnquist's "impish irreverence and wit," see Bernard Schwartz, The Ascent of Pragmatism 31-32(1 990). That impishness occasionally includes a taste for practical jokes. See id. at 32; Jenkins, supra note 55, at 100, See also BOB Woodward & Scott Armstrong, The Brethren 269-70, 412-13 (1979). For the appearance of his playful streak in opinion writing, see Corporation Commission of Oklahoma v. Federal Power Commission, 415 U.S. 961 (1974) (opening his dissent from an affirmance on appeal with a limerick). 272. Felix Frankfurter placed Jackson "in what might be called the naturalistic school. He wrote as he talked, and he talked as he felt." Mr. Justice Jackson, supra note 127, at 938. Bernard Schwartz found Rehnquist to be "the best legal stylist and phrasemaker on the Burger Court, though too much of his Hterary ability was overshadowed by the extreme positions which it supported." Schwartz, supra note 27 1 , at 30. 273. Gerhart, supra note 6, at 32-33. 274. See Sobeloff, supra note 127, at xxxi. 275. Everson v. Board of Educ, 330 U.S. 1,19 (1947) (Jackson, J., dissenting). 276. Craig v. Harney, 331 U.S. 367, 396 (1947) (Jackson, J., dissenting). 277. Securities & Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 214 (1947) (Jackson, J., dissenting). 278. Ray v. Blair, 343 U.S. 214, 232 (1952) (Jackson, J., dissenting). 279. Terminiello v. Chicago, 337 U.S. 1, 14 (1949) (Jackson, J., dissenting). 280. United States v. Ballard, 322 U.S. 78, 93-94 (1944) (Jackson, J., dissenting). 582 INDIANA LAW REVIEW [Vol. 29:535 familiar passages from Shakespeare^^' and references to Charles Dickens,^^^ George Orwell,^^^ and Sir Arthur Conan Doyle. ^^'^ In an unusual echo, both Justices settled on the same biblical metaphor to describe what they considered to be provocative judicial behavior. In his book on the Roosevelt administration's battle with the Court over New Deal legislation, Jackson characterized the granting of injunctions by district courts to block the implementation of federal statutes as a dangerous excess: "District courts were sowing the wind—the Supreme Court would reap the whirlwind. "^^^ Rehnquist saw the majority's decision approving a voluntary affirmative action plan in Weber as another excess that would return to haunt the Court, and he ended his dissent with a similar threat of impending doom: "By going not merely beyond, but directly against Title VII's language and legislative history, the Court has sown the wind. Later courts will face the impossible task of reaping the whirlwind. "^^^ In light of the divergent contexts for the two passages, it seems unlikely that the echo was a deliberate one. The passages do, however, reveal that Jackson's ear was the truer; by domesticating the metaphor and integrating it with the doctrine of statutory interpretation, Rehnquist has lost the ominous power that Jackson's version conveys.^^^ III. Two Students OF THE Court A. Justice Jackson It is rare for a Supreme Court Justice to write about the Court beyond the 281. Milkovich v. Lorain Journal Co., 497 U.S. 1,12 (1990) ("Who steals my purse steals trash."); Dames & Moore v. Regan, 453 U.S. 654, 675 n.7 (1981) ("What's in a name?"). In one instance, Rehnquist quoted a passage from Measurefor Measure on the difference between act and intention, but the footnote makes clear that the passage had already been identified as relevant by a legal scholar: "As recognized by one commentator, Shakespeare's lines here express sound legal doctrine." United States v. Apfelbaum, 445 U.S. 115, 131 n. 13 (1980). 282. Coleman v. Balkcom, 451 U.S. 949, 958 (1981) (Rehnquist, J., dissenting from denial of certiorari) (Bleak House); Codispoti v. Pennsylvania, 418 U.S. 506, 531 (1974) (Rehnquist, J., dissenting) (Bleak House). 283. See supra note 236 and accompanying text for a discussion of Rehnquist' s use of Nineteen Eighty-four in his dissent in United Steelworkers of America v. Weber, 443 U.S. 193, 219 (1979). 284. See supra note 57. 285. Robert H. Jackson, The Struggle for Judicial Supremacy 123 (reprint 1979) (1941). The biblical metaphor is from Hosea 8:7 (King James). 286. Weber, 443 U.S. at 255 (Rehnquist, J., dissenting). 287. Rehnquist used the image a second time, in his book on the Court, to end his chapter on the Court's early twentieth century decisions striking down state legislative solutions to problems of the era: "The Court was in the process of sowing a wind, with the whirlwind to be reaped years later." Rehnquist, supra note 31, at 214. The power of the biblical language is again weakened by the addition of two modifying phrases, "in the process" and "years later." 1 996] JACKSON AND REHNQUIST 583 incidental observations that occur naturally in opinions. ^'^^^ Jackson is distinguished even among that small company because he wrote twice, from very different perspectives, once shortly before joining the Court and again in the final months of his life. He reports that his first book, The Struggle for Judicial Supremacy, "was originally written in odd intervals between arguments in Court as Solicitor General. ""^'^ The vantage point is, however, less that of an engaged advocate than that of a political adviser who suffered with Franklin Roosevelt the Court's assault on the New Deal. The overt theme of the book is the need for judicial self-restraint to maintain balance among the branches of government, but its subtext is a thinly veiled attack on the conservative members of the Court who indulged their own political preferences in striking down congressional legislation. Jackson's dialectical approach is clear in his account of the way a democracy functions as a continuous process of conflict and resolution. Jackson argues that the elections which resolve clashes between liberals and conservatives are a safety valve for dissident views, and the resulting government policies should be respected by the Court unless they "violate[] clear and explicit terms of the Constitution":^^" The device of periodic election was chosen to register and remedy discontents and grievances in time to prevent them from growing into underground or violent revolutionary movements. An election that can turn out one regime and install another is a revolution—a peaceful and lawful revolution. By such method we give flexibility and a measure of popular responsibility to our federated system and maintain a continuity of the government, even though the governors be turned out from time to time.^^' When the Court intervenes by negating the policy choices of the duly elected governors, it puts at risk this peaceful resolution of political conflict. "The vice ofjudicial supremacy," Jackson concludes, "as exerted for ninety years in the field of policy, has been its progressive closing of the avenues to peaceful and democratic conciliation of our social and economic conflicts."^^^ By ruling New Deal initiatives unconstitutional under such elusive standards as freedom of contract, the judiciary "jeopardized its essential usefulness" in the American system of govemment.^^^ This theoretical account of the Court's misguided conduct is occasionally punctuated by more pointed criticism of the conservative Justices who struck down the New Deal statutes, a criticism rendered in terms of another dialectic, that 288. See, e.g. , FELIX FRANKFURTER & James Landis, The Business ofthe Supreme Court: A Study in the Federal Judicial System (1928); Charles Evans Hughes, The Supreme Court of the United States ( 1 936). 289. Jackson, supra note 285, at xix. 290. Mat 319. 291. /^. at 316. 292. /'. These elements are already detectable in the responses of a seasoned Justice and a young law clerk to the complexities of Youngstown Sheet & Tube Co. and Brown. Jackson's two concurrences, one published and one suppressed, both reveal his candid efforts to find an accommodation between abstract principle and concrete situation, between individual conscience and institutional performance. His career is as aptly reflected in what he withheld as in what he wrote. In Rehnquist's observations of Youngstown Sheet & Tube Co. and his Brown memo the seeds of his jurisprudence are already present. He assesses the likely result of Youngstown Sheet & Tube Co. in terms of the political histories of the Justices, assuming an ideological consistency that his own career illustrates, and he finds a simple solution to the problem of Brown by drawing a sharp line between the Justices' imagined preferences and the Court's restricted role. It is not after all surprising that Rehnquist writes about Jackson with detachment. They represent two divergent judicial casts of mind—dialectical and monistic, skeptical and certain, pessimistic and optimistic—which sixteen months together at the Court could not bridge.