The Nine [14]
When he became chief justice in 1986, Rehnquist arrived with one great advantage. He wasn’t Warren Burger.
In his seventeen years as chief, Burger had managed to alienate all of his colleagues. The greatest breach, and the most surprising, was with Harry Blackmun. No closer friends had ever served together on the Court. They had met in kindergarten in St. Paul, Minnesota, and grown up together. In 1933, Blackmun was best man at Burger’s wedding. Burger made his name first in national politics, serving in a senior post in the Eisenhower Justice Department, and he engineered both his own and then Blackmun’s appointment to the federal court of appeals. Burger became chief justice in 1969, and a year later, after the nominations of Clement Haynsworth and G. Harrold Carswell failed, Burger inveigled President Nixon to name Blackmun in their place. In their early days on the Court, the two men were known as the Minnesota Twins.
The relationship soon soured. In part, the differences between the two men were simply ideological, as Blackmun moved closer to Brennan and Marshall on the left. But it was more the way Burger ran the Court that came to madden Blackmun and his colleagues. The main duty of a chief justice is to chair the Court’s conference every Friday when it is in session. At those secret meetings, held in the chief’s conference room, the nine justices review the argued cases and cast their votes. When he is in the majority, the chief justice assigns who will write the opinion for the Court; when the chief is in dissent, the senior associate justice in the majority makes the assignment.
The problem, it seemed, was that Burger could not run the conference. Discussions meandered aimlessly and ended inconclusively. Justices sometimes thought that Burger would switch his vote to keep control of opinions or even try to assign cases where he was not in the majority. (William O. Douglas, then the senior associate justice, thought that was how Burger assigned Blackmun to write Roev. Wade.) Potter Stewart, who was appointed by Eisenhower in 1958, grew so frustrated with Burger that he took an unprecedented form of revenge. Stewart responded eagerly to an approach from Bob Woodward, who had just become famous for his work on Watergate, letting the journalist know that he would cooperate with an extended investigation of the Burger Court. Stewart’s interviews provided a basis for The Brethren, written by Woodward and Scott Armstrong and published in 1979. The book, full of vivid inside detail that had never before been divulged to the public, portrayed Burger as a pompous, egomaniacal bumbler. (Stewart wound up resigning in 1981, at the unusually young age of sixty-six, opening the seat that went to O’Connor.)
Rehnquist never went public with his distress about Burger, but he also seethed. In the Burger years, opinions came out late or not at all, forcing cases to be “put over,” or reargued, in subsequent years. Once, when Lewis Powell was ill, Rehnquist wrote him about his frustration with Burger. Powell, who joined the Court at the age of sixty-four, served as a kind of older brother to all the justices, and Rehnquist felt comfortable unburdening himself in alternately brusque and whimsical ways.
“Sometimes when [Burger] runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a Southern Senator conducting a filibuster. I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page,” Rehnquist wrote. “Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have