The Nine [68]
Souter, the self-sufficient New Englander, who had lived with snow for most of his life, rejected all offers of help. He said he would drive himself in his own car—which promptly stalled in a snow-bank. Finally rescued by Supreme Court police officers, Souter wound up being the only one late for Court.
Rehnquist made no reference to the weather, and the argument went off as planned. (It happened to be the case about the injured railroad employee, which Phillips won unanimously, with Thomas writing his favorite opinion.)
The biggest change in the chief, though, was in the opinions he produced. As a junior justice, back in the 1970s, he became known for his long and discursive opinions, where he spelled out his conservative philosophy, often in dissent. But his opinions shrank when he became chief justice. In part, Rehnquist was just reflecting his shifting role—from outsider to institutional embodiment of the Court. But fatigue was a factor, too. The chief ran his chambers like an assembly line, with his clerks expected to produce first drafts in ten days or less. Only if they were overburdened would he write a first draft himself. Rehnquist was a brutal editor, stripping his clerks’ work down to the essentials, taking out what he called, with some contempt, “the reasoning.”
And so in the fall of 1999, the Court reached another turning point. Rehnquist’s age started to limit his effectiveness. More important, the country at large had soured on the Gingrich Republicans who had taken over the House in 1994 and then launched the impeachment drama of 1998. Clinton was more popular than ever, and the nation, basking in unprecedented prosperity, had no discernable appetite for a dramatic lurch to the right.
In short, in October 1999 the “Rehnquist revolution,” which was never terribly revolutionary in the first place, ground to a halt. On some of the issues that meant the most to him—states’ rights, church-state relations, criminal law, and abortion—Rehnquist lost critical cases. The chief even surrendered in one of the causes that had meant the most to him since his days as a young Republican in Arizona.
Rehnquist loved to sing, and he always led the caroling at the Court’s annual Christmas party. (Every year or so, a group of law clerks would write the chief justice an earnest letter complaining that the party created an atmosphere of exclusion for non-Christians; Rehnquist, who pointedly never adopted the term “holiday party,” would reply by inviting the young lawyers, in effect, to get over it.) In his early years on the Court, Rehnquist even sometimes wrote the sketches for the occasion. In 1975, as Jeffrey Rosen first reported, he wrote a song about his least favorite Supreme Court opinion, Miranda v. Arizona. Sung to the tune of “Angels from the Realms of Glory,” it went: “Liberals from the realm of theory should adorn our highest bench / Though to crooks they’re always chary / At police misdeeds they blench.” The members of the chorus then fell to their knees and sang, “Save Miranda, save Miranda, save it from the Nixon Four.” Nixon’s nominees were Warren Burger, Harry Blackmun, Lewis Powell, and, of course, Rehnquist himself.
Miranda embodied everything that Rehnquist detested about the liberal activism of the Warren Court in the 1960s. In the decision, written in 1966 by Earl Warren himself, the Court ruled that any criminal suspect in custody must be read his or her rights. There was no conceivable claim that the framers of the Constitution or Supreme Court justices for a hundred and seventy-five years thought that any such warnings were necessary. Warren and his colleagues had simply invented the requirement to address what they regarded as flaws in the criminal justice system. Rehnquist made clear in opinion after opinion that he didn’t think that the warnings were needed, and that they represented a judge-made impediment to the conviction of guilty and likely dangerous