by Ted Cruz
“The Chief would like you to come and meet with him,” said the friendly voice on the other line. “When are you available?”
“I’m available whenever the Chief Justice would like,” I replied quickly.
“Can you come in tomorrow?”
Tomorrow. The day of the big game. The game I’d waited for. “Yes,” I replied. “Of course.”
Some justices liked to have lengthy give-and-takes with potential clerks—Scalia being the most notorious. Chief Justice Rehnquist preferred shorter encounters, hardly ever lasting more than twenty minutes. That, in the Chief’s view, was sufficient time to decide on a person. He knew that all of the aspiring clerks applying to his chambers had strong academic credentials. What he really wanted to see from in-person meetings, I figured, was whether he liked you, whether it would be bearable to work with you every day for the course of a year.
William Hubbs Rehnquist was born in Milwaukee, Wisconsin, and was very much a midwesterner. He was polite, low-key, and modest. An enlisted man during World War II, he was a weather observer in North Africa, leading to a lifelong fascination with meteorology. Like Scalia, he had a sharp wit, but he tended to wield humor more gently. Justice Lewis Powell, for example, was a colonel in World War II. “You know,” he once quipped to the Chief, “I outrank you.” Without missing a beat, Rehnquist replied, “Not anymore.”
As an attorney in Phoenix in the 1960s, Rehnquist had worked for the Barry Goldwater presidential campaign. He had been a law clerk to Justice Robert Jackson, one of the finest justices in the history of the Court. Rehnquist, who went on to work in the Nixon administration as the head of the Office of Legal Counsel, liked to joke about his former boss Nixon, who, on one of the White House tapes discussing Supreme Court appointments, was overheard saying, “What about that clown, Renchburg?”
For many years on the Court, Rehnquist was known as the “Lone Ranger,” since in the 1970s he was often the only dissenter against the liberal-minded Warren Court. But slowly, over time, many of Rehnquist’s dissents became the law of the land as he shepherded the Court, and the law, back to its foundations. There are few clearer arcs than the trajectory from Rehnquist’s dissents in the 1970s and ’80s to the majority opinions of the 1990s and 2000s.
By the time I arrived to interview with the Chief, he had already begun to usher in the so-called federalist revolution, which restored some of the historical deference toward the authority of sovereign states. As the Chief Justice wrote in the case United States v. Lopez, “We start with first principles. The Constitution creates a Federal Government of enumerated powers, in James Madison’s word, which ‘ensure[s] [the] protection of our fundamental liberties.’ ” That transformation—along with the revival of religious liberty and the restoration of balance in criminal justice law—had earned Rehnquist the designation by President Clinton’s acting solicitor general Walter Dellinger as “among the three most influential Chief Justices in history.”
I soon learned why Rehnquist spent so little time interviewing his law clerks. He was one of the most brilliant human beings on the planet. He could have done the job with his eyes closed and without a single assistant.
I met the Chief in his spacious chambers at the back of the Supreme Court Building, right behind the courtroom. A tall man with thinning black hair, long sideburns, and oversize glasses, he ambled up and offered me a chair. The Chief wore big wide ties with floral patterns and Hush Puppies.
With his first question, I knew that my recommendation strategy had paid off. “You know, I’ve got two recommendations here from Charles Fried and Alan Dershowitz,” he said, in his deep, gentle voice. Rehnquist knew as well as anyone how diametrically opposed the two men were. He had a slight grin. “So, I wonder, how on earth is that possible?”
“Maybe one of them was confused,” I said. He laughed.
I told him a little about my background. When I described my father’s background, fighting in the Cuban Revolution, it piqued the Chief’s interest. Afterward, when I recounted the interview to my dad, I kidded my father by telling him that I had described him as a communist guerrilla for Castro. My dad was horrified.
“I was never a communist!” he said indignantly. He was flabbergasted that the Chief Justice of the United States might have this mistaken impression.
As we continued talking, Rehnquist asked a question that seemed of great importance to him.
“Would you be willing to play tennis with me and my other clerks?”
He was, as I had learned, a devotee of the game. In fact, many of the clerks he tended to favor were skilled tennis players or even all-American athletes.
“Sure, sounds like fun,” I replied. I wanted the job badly, though I had to be honest. “I should tell you I’m not very good.”
Rehnquist laughed at what he apparently took for false modesty. What he didn’t know, but would soon learn, was that “not very good” was a boast bordering on hyperbole.
Walking out of the interview, I decided to take a gamble with a joke. “You know, being here today is actually quite bittersweet for me,” I told him.
“Really?” he said, somewhat taken aback. “What do you mean?”
“Well, today is game four of the NBA Finals. And my Houston Rockets are about to sweep back-to-back championships. And I gave up my ticket to come talk to you.”
I knew from reading about him that Rehnquist was a sports fan. And as I had hoped, he cracked up laughing.
Then he said, “Well, I think you made the right decision.”
To this day I am convinced that the reason I got the clerkship I’d coveted for years was that on the spur of the moment I made the Chief Justice laugh.
Over the course of my time at the Supreme Court, I came to realize that the clerks tended to reflect the characteristics of the justices they served.
David Souter had been appointed by George H. W. Bush but fairly quickly became one of the more liberal justices. Raised in rural New Hampshire, he lived a simple, spartan life. When he hosted the clerks for lunch, he explained that each day he would have a bowl of yogurt. On the weekends he would have a bowl of yogurt, but with fruit.
I remember thinking, “He prefers it with fruit.” And it was interesting to me that he chose to deny himself that pleasure during the week.
Justice Stephen Breyer, a 1994 Clinton appointee, can be delightfully charming. He did have a habit of speaking quite loudly about pending cases—in places like public restaurants. On occasion that would cause his clerks considerable consternation.
No member of the Court is more reviled on the left than Clarence Thomas. At the same time, no member of the Court is more beloved by the Court’s janitors, guards, and support staff members, with whom he connects on a real, personal level.
I admire Justice Thomas. He rose from abject poverty—having grown up penniless in Pinpoint, Georgia—to the pinnacle of the law. A brilliant, scholarly jurist, he has been unfairly maligned by liberal academics and journalists, enduring condescending insults that never would have been directed at a liberal or at a white conservative. (Justice Scalia, every bit as conservative, has never been depicted on a magazine cover as an Uncle Tom, licking another justice’s boots.)
With his welcoming demeanor and deep, hearty laugh—imagine Santa Claus bellowing “ho, ho, ho”—Clarence Thomas has carried out dozens of acts of kindness on the Court, the kind never reported by the mainstream media. An illustrative story involved one of my co-clerks, Rick Garnett, who had worked the previous year as a clerk in Little Rock, Arkansas. There he and his wife had befriended and tutored a young African-American boy named Carlos. The boy had never left Arkansas before, but Rick and his wife paid to fly him up to spend some time in D.C. Rick emailed all nine chambers at the Court, saying that this young boy would be in town, and asking if any of the justices would be willing to meet with him. Two offices responded—those of Justices Ruth Bader Ginsburg and Clarence Thomas. Ginsburg is an incredibly talented lawyer and jurist, and it was ver
y kind of her to meet with Carlos, but her prim demeanor is that of a legal librarian, and so it was difficult for her and the young boy from Arkansas to connect. Clarence Thomas understood the world that Carlos had come from.
At the end of their two-hour conversation, Carlos observed that Justice Thomas was a Dallas Cowboys fan. (Thomas had a framed picture of himself with quarterback Troy Aikman in his office.) The kid was very impressed—that was way cooler than the Supreme Court—and Thomas noticed. So Thomas rose from his chair, walked to his desk, and showed the boy a Super Bowl ticket, encased in Lucite, and signed by Cowboys running back Emmitt Smith. He handed the ticket to the young man.
“I’m going to give you this,” Thomas said. “But I want you to promise me that you will get A’s in school next year.”
The young man, astonished and wide-eyed, nodded in agreement.
Justice Scalia’s clerks, like the justice himself, tended to have an edge. They were wickedly smart, engaging, and had no problem wielding sharp elbows when warranted. Scalia himself had a mischievous sense of humor. One famous Scalia story—there are many—occurred during the 1980s, when Reagan was president and considering appointments to the Court. Everyone knew that two of the stars on the conservative side, and thus possible nominees, were Robert Bork and Scalia, both on the D.C. Circuit. So one day Scalia was walking in a parking garage at the appellate court when two U.S. marshals stopped him. “Sorry, sir,” one of them said. “We’re holding this elevator for the attorney general of the United States.”
Scalia pushed past them, entered the elevator, and pressed a button. As the doors closed, Scalia shouted out, “You tell Ed Meese that Bob Bork doesn’t wait for anyone!” And, as it happens, Scalia was nominated to the Court by President Reagan in 1986.
Like his polar opposite Dershowitz, Scalia enjoyed having analytical arguments with the other side, as it tended to sharpen his own view. For his clerks, Scalia usually hired three conservatives and one liberal. But this practice sometimes had an unfortunate side effect. A number of Scalia’s liberal clerks would go on to become law school professors and would publicly criticize the conservatives on the Court. But because they had clerked for Scalia, some media portrayals would leave viewers with the false impression that these liberal critics were conservatives denouncing their own. It was less than ideal.
As Chief Justice, William Rehnquist had the statutory ability to hire five clerks instead of the customary four. But he usually hired just three. Rehnquist was an “if it ain’t broke, don’t fix it” kind of guy. Back when he began serving on the Court, three was all a justice needed. And he saw no reason to change that.
There was another, apocryphal reason why Rehnquist kept three clerks, which was that it was perfect for doubles tennis. The Chief had not been kidding when he first asked me if I’d play. In fact, it was a required part of the job to play tennis with him once a week—Thursdays, without fail, at 11 a.m.
Before then, I’d probably played the game two or three times in my life. None of my friends played tennis; I hadn’t exactly hung around country clubs in my youth. So for months before I started my clerkship with the Chief, I practiced tennis. I took lessons, even hired a coach.
I was still dreadful, despite all my practice. And my skills would soon be put to the test.
The chief traditionally took the best tennis player as his partner and in my year that was a clerk who had played JV tennis for Yale. In our first game, they won all three sets, 6–0, 6–0, 6–0. The second week the result was exactly the same. I was painfully embarrassed.
Finally, the Chief threw up his hands. He’d had enough. I’m sorry to say that I have the ignominious distinction of being the only law clerk who was so bad at tennis that the Chief gave up the best tennis player as his partner and paired him up with me just to try to even things out.
For our next games, I managed not to screw up too much. I stayed in a small part of the court and let my co-clerk dominate the rest. He was a good enough player that we ended up winning, but the games were close. So for that year—and probably only that year—the Chief Justice had a losing record against his clerks, which did not exactly please him. As unfailingly kind and polite as he was, William Rehnquist was a very competitive man.
He wagered on anything, everything—the amount of snowfall that would come to Washington, the outcome of an election or sports game. The bet was always the same—one dollar—and he almost always won.
Once, when he and I were teammates playing croquet, another game he loved and I wasn’t terribly good at, he looked at me with a discouraged glance. “Ted, you do know the point of the game is to win, don’t you?”
My failings on the playing fields not withstanding, the Chief Justice was a wonderful boss. All nine of the justices on the Court at that time—Rehnquist, Scalia, Thomas, O’Connor, Kennedy, Stevens, Souter, Ginsburg, and Breyer—were extremely intelligent. But even in that room Rehnquist stood out. He had been first in his class at Stanford Law and he had a photographic memory, unlike any I’d ever encountered.
My first impression of him proved right. He really didn’t need law clerks. He was so damned smart.
Most of the justices had law clerks prepare long bench memos on cases. Rehnquist didn’t need that. He just wanted three-page summaries of the facts. He knew all the rest already.
The Court heard about eighty cases during the term I clerked, and each of the Chief’s clerks was responsible for knowing about one-third of them. It was a lot to juggle in your head without notes. And the way the Chief Justice liked to prepare for oral arguments could be disconcerting. He could come by our desks at any time to talk about a case.
“Ted,” he might say, “are you ready to discuss Smith vs. Jones?”
We knew what came next. I’d say, “Yes, Chief,” and get up and go outside for a walk with him. Without any notes at my disposal we’d discuss that case’s merits.
As we strolled down First Street across from the U.S. Capitol, he’d say things like, “So, Ted, what did you think of the argument in footnote seventeen of the petitioner’s brief? I didn’t find it very persuasive.”
“Uh, I agree, Chief,” I’d respond, struggling to remember the footnote he was citing.
We would do laps around the Court. A kindly looking gentleman, often wearing a cap, Rehnquist was frequently stopped on the street by tourists asking him, a passerby, to take photographs of their families standing in front of the Court or the Capitol. He was so down-to-earth, so approachable, that he could be as comfortable with a plumber as he could a poet. And he was hardly ever recognized.
Each time he was stopped to take a photo, the Chief would smile and say gamely, “Sure.”
To this day, hundreds of people have had their picture taken in front of the Court by the Chief Justice of the United States and never knew it. That made him chuckle.
He was not a man of airs. For lunch, he would usually order the same thing—a simple menu of a cheeseburger and a Miller Lite, or as he called it, “a Miller’s Lite.” And he’d smoke a single cigarette. His townhome in Arlington, Virginia, was modest; there were no signs of pretense or grandeur. Sometimes he had the clerks over to play charades. My favorite memory of him remains the time he grabbed a slip of paper, fell to the ground, and lay on his belly pantomiming firing a rifle. “Pow! Pow!” he called out. (No one told the Chief that you didn’t talk in charades.) His charade was “All Quiet on the Western Front.”
Rehnquist was a study in contrast from Justice Scalia. Scalia, in private, is every bit as he seems in public—volcanic, passionate, temperamental, brilliant, animated. Anyone who spots him having lunch during the month of June, when major decisions tend to come down, can tell in an instant by his demeanor if his side is winning or losing.
William Rehnquist was very different. He was a stoic, comfortable in his beliefs and his values, and entirely at peace if the Court ruled a different way. He had faith that truth would prevail and that eventually the Court would come around.
&n
bsp; One sobering component of being a Supreme Court clerk literally involves life-and-death decisions. A great many states set executions late at night, often at midnight. Just before that deadline, under the current system, defense lawyers tend to file a flurry of last-minute appeals to the Supreme Court for emergency stays of execution.
A clerk from each justice’s office would stay up late at night waiting for appeals to come in. Sometimes, as little as an hour before an execution, a fifty- or hundred-page fax would come into the Court (it was the age of faxes), laying out the case for why a defendant’s trial was unfair and he should have a new hearing, or raising some other legal point justifying a stay.
If the appeal was in a circuit assigned to your justice, it was your responsibility to read through the entire petition as quickly as possible. Then the clerk would call his boss, who was at home and probably asleep (although they knew the call was coming). In my case, the conversation would go something like this:
“Mr. Chief Justice, there is a last-minute appeal in the X case. They’ve raised six claims here to justify a stay.” Then I’d describe the claims over the phone. I’d give my recommendation, and then the Chief Justice would decide how he wanted to vote. In most cases, justices vote against a last-minute stay of execution. I’d then write up a draft memo for the other justices’ offices, summarizing the appeal and outlining why the Chief had voted to resolve the claims as he did.
I would also make a point of doing something the liberal clerks who opposed capital punishment rarely did—simply describing the brutal nature of the crime for which the defendant had been convicted. The appeal would go to the full Court for a vote. Each of the other eight clerks would call their justices at home, wake them up, and then the justices would each vote on the appeal that night.
The current system is indisputably being gamed by the defense lawyers in the hopes that the clerks will get these voluminous appeals filed at the last minute, throw up their hands, and the Court will issue a stay just to have time to sort through it. It’s a cynical strategy—in my view, a dangerous one—which results in claims being adjudicated by sleepy justices at midnight with little time for adequate review.