Among his myriad responsibilities, the Chief gave us our homework assignments: at the end of each two-week sitting period, whenever he was in the majority (which he was much more often than not), he decided who would write which opinion. True, there was an occasional grumble, for example, from the Justice assigned to write in a sloughy ERISA case. But at the end of each Term there was general agreement that the cases, overall, had been fairly distributed. And when the Chief announced all majority opinions must be in circulation by June 1, all dissents by June 15, no one, in my twelve full Terms at the Court, missed the deadline.
That same talent, to keep the players in line and on time, was evident at oral argument, Court conferences, U.S. Judicial Conferences, Smithsonian Institution meetings, and various other gatherings. Part of the secret of his success, the Chief had an irreverent sense of humor. He could deliver poker-face lines that provoked smiles, sometimes even bursts of laughter.
The Chief was a plain speaker; he had no airs or affectations. A characteristic example. When his nomination as Chief Justice was announced by President Reagan at a June 17, 1986, press briefing, a reporter asked then-Justice Rehnquist: “Do you . . . consider it the culmination of a dream . . . ?” The soon-to-be Chief responded: “I wouldn’t call it [that], but it’s not every day when you’re 61 years old and get a chance to have a new job.”
William Hubbs Rehnquist’s first job at the Court was as law clerk to Justice Robert H. Jackson, from February 1952 until June 1953. Following that auspicious start, he did just about everything one can do in the legal profession—private practice, service in the executive branch, Supreme Court judging, even, on one occasion, trial court judging. I described that episode a few years ago when I spoke at a Court function. The Chief smiled, so I feel comfortable retelling the story.
While still an Associate Justice, in June 1984, he bravely volunteered to preside over a civil jury case in Richmond. (June, many of you know, is the Supreme Court’s busiest time, weeks when all of us labor to produce or refine the opinions that must be released before we recess for the summer.) According to press reports, then-Justice Rehnquist quickly took control of the proceedings, in a captain-like manner. Alas, in the fullness of time, the judgment he entered on the jury verdict was reversed, per curiam, by the Fourth Circuit.
After that encounter with first-instance judging, the Chief remained safely back in his home Court. In accord with Santayana’s wisdom, he remembered the past and did not repeat it. And he was mindful of the reality Justice Jackson captured in the famous expression: Supreme Court Justices “are not final because we are infallible, but we are infallible only because we are final.”
The Chief was a private person, who did not engage the press (or his colleagues) with stories of his dreams. (If he did have some delectable dreams, they were probably accompanied by tastes of the “mean” hamburgers he himself grilled, or the chocolate chip bars occasionally made for him by son Jim.) Items that might have been on his wish list: to see the paintings of William Hubbs Rehnquist displayed alongside those of Turner and Constable at the National Gallery; to succeed Robert Shaw as leader of glorious chorales; to learn the secret of the aged grandmother in Tchaikovsky’s Pique Dame (originally Pushkin’s Queen of Spades) how always to win at cards; to add to his books in print a suspense-packed mystery filled with action in the great outdoors, a book worthy of comparison with Raymond Chandler.
When asked by Senator Laxalt on July 30, 1986, why he believed he was qualified to be the Chief Justice, this is what William Hubbs Rehnquist said:
I have a very real interest in the Federal judicial system and the American judiciary. . . . I have a very great interest in trying to see improvements made, not just [in the Supreme Court and] in the lower Federal courts, but seeing what might be done through the Center for State Courts, in helping State courts, at least getting financial assistance to them without trying to tell them what to do.
Visitors to the Court in recent years could hardly miss noticing the Chief’s self-designed robe, copied from the Lord Chancellor’s costume in a local theater company’s summer production of Gilbert and Sullivan’s Iolanthe. The robe has gleaming gold stripes, as does the robe of the United Kingdom’s Lord Chancellor, but Chief Justice Rehnquist’s version is less regal, resembling the stripes of a master sergeant more than those of a British lord. Why did a man not given to sartorial splendor decide on such a costume? In his own words, he did not wish to be upstaged by the women. (Justice O’Connor has several attractive neckpieces, collars from British gowns, and a frilly French foulard; I wear British and French lace foulards, too, and sometimes a collar of French Canadian design.)
The Chief and I often held different views on important issues. But he sometimes surprised me. Two examples, one from my advocate days, the other from my years on the Court.
Examining then-Justice Rehnquist’s first four and a half years on the Court, David Shapiro wrote in a December 1976 Harvard Law Review comment: “He has never voted to strike down government action subject to scrutiny under the rational basis test.” Even Homer nods. Less than two years earlier, in March 1975, the Court decided the case of a young father, Stephen Wiesenfeld, widowed when his wife died in childbirth. Stephen’s wife was a teacher for whom Social Security taxes were regularly paid. When a male wage earner died leaving a child in his wife’s sole care, the Social Security law provided monthly child-in-care benefits to the surviving parent. But when the deceased wage earner was female, the law allowed no child-in-care benefits.
The Court reached a unanimous judgment: the gender line was unconstitutional, a violation of the equal protection principle. But the Justices divided over the rationale. The majority viewed the law as discriminating impermissibly against women wage earners, because it provided their families less protection than it provided the families of male wage earners. Counsel had also argued that the law discriminated against men as parents, because it did not afford them the same opportunity as women to care personally for their children. Justice Rehnquist resisted both arguments, but he was satisfied that the baby had been treated arbitrarily. He wrote: “It is irrational to distinguish between mothers and fathers when the sole question is whether a child of a deceased contributing worker should have the opportunity to receive the full-time attention of the only parent remaining to it.”
David Shapiro had not missed the Wiesenfeld case. As he wrote to me, he had an index card on Justice Rehnquist’s atypical opinion. But those were pre-PC days. Professor Shapiro had simply mislaid or overlooked the card when time came to report the results of his research.
Another surprise. In June 1996, I announced the judgment and opinion of the Court in the Virginia Military Institute case. Reading the opinions below and the briefs in preparation for oral argument, I feared that the Chief would not share my view of the case. To my delight, he concurred in the judgment, persuaded that Virginia offered a valuable educational opportunity for men and no equivalent opportunity for women. Justice Scalia was the lone dissenter and directed many arrows at the Chief’s opinion that might otherwise have elevated the number he aimed in my direction.
Chief Justice Rehnquist regarded an independent judiciary as our country’s hallmark and pride. In his annual reports on the state of the federal judiciary, and in his public addresses, he urged Congress to safeguard that independence by resisting measures aimed to curtail Third Branch authority.
A personal note. True to his heritage, the Chief sometimes seemed a model of Nordic cool. But I have seen firsthand his humane qualities. Six years ago, in my yearlong bout with colorectal cancer, he helped allay my anxieties. He kept my assignments light during the most trying weeks and let me decide when I could tackle more challenging cases. Coping with cancer himself last Term, his courage and determination were exemplary, inspiring others battling debilitating diseases to carry on with their lives and work as best they can. His best was awesome. He wrote a fair share of the Court’s opinions last Term, and kept as firm control as
ever in managing the Court’s conferences and operations.
William Hubbs Rehnquist was the sixteenth Chief Justice, and the third Associate Justice to be elevated to the center chair. Describing his office, and the performances of the first fourteen Chief Justices, he said in an April 2002 address:
The Chief Justice [in contrast to the president] brings to office no one but himself. He takes his seat with eight Associate Justices who are there already, and who are in no way indebted to him. By historic usage, he presides over the Court in open session, presides over the Court’s conferences, and assigns the preparation of opinions in cases pending before the Court if he has voted with the majority. He also speaks on behalf of the federal judiciary in matters which pertain to it. . . . Perhaps the best description of the office is to say that the Chief Justice has placed in his hands some of the tools which will enable him to be primus among the pares but his stature will depend on how he uses them.
In his leadership of the U.S. Judicial Conference and his superintendence of the Supreme Court, Chief Justice Rehnquist used to great effect the tools Congress and tradition entrusted to him. In his management of the Third Branch, he earned the enduring appreciation of all who care about the health and welfare of the Federal Courts and the Federal System.
* * *
I. Justice Ginsburg delivered these remarks at George Washington Law School on October 27, 2005, and they were reprinted in 74 George Washington Law Review 869 (2006). We have made minor edits to the remarks for length and context.
4
The Madison Lecture
Speaking in a Judicial VoiceI
Introduction
The Madison Lecture series has exposed and developed two main themes: human rights and the administration of justice, particularly in our nation’s federal courts.1 My remarks touch on both themes; I will speak first about collegiality in style, and next, about moderation in the substance of appellate decisionmaking. My views on these matters reflect experiences over a span of three decades. They have been shaped from my years as a law teacher beginning in the 1960s, through the 1970s when I helped to launch the American Civil Liberties Union’s Women’s Rights Project, and most recently during the nearly thirteen years I have had the good fortune to serve on the United States Court of Appeals for the District of Columbia Circuit. What I hope to convey about courts, I believe, is in line with the founders’—Madison’s and Hamilton’s—expectation. As a preface, I will comment on that expectation.
James Madison’s forecast still brightens the spirit of federal judges. In his June 1789 speech introducing to Congress the amendments that led to the Bill of Rights, Madison urged:
If [a Bill of Rights is] incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark . . . naturally led to resist every encroachment upon rights . . . stipulated for in the Constitution by the declaration of rights.2
Today’s independent tribunals of justice are faithful to that “original understanding” when they adhere to traditional ways courts have realized the expectation Madison expressed.
In The Federalist No. 78, Alexander Hamilton said that federal judges, in order to preserve the people’s rights and privileges, must have authority to check legislation and acts of the executive for constitutionality.3 But he qualified his recognition of that awesome authority. The judiciary, Hamilton wrote, from the very nature of its functions, will always be “the least dangerous” branch of government, for judges hold neither the sword nor the purse of the community; ultimately, they must depend upon the political branches to effectuate their judgments.4 Mindful of that reality, the effective judge, I believe and will explain why in these remarks, strives to persuade, and not to pontificate. She speaks in “a moderate and restrained” voice,5 engaging in a dialogue with, not a diatribe against, coequal departments of government, state authorities, and even her own colleagues.
I spoke of the founders’ “original understanding” a moment ago, and that expression, as I comprehend it, bears clarification in this preface. In his 1987 foreword to The Evolving Constitution, the second collection of Madison Lectures, Norman Dorsen stressed, as Chief Justice John Marshall did in 1819, that our fundamental instrument of government is an evolving document, “an instrument ‘intended to endure for ages to come.’ ”6 Professor Dorsen quoted Chief Justice Charles Evans Hughes’ 1934 rejection of the notion that “the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them.”7 That understanding, as Professor Dorsen commented, has been and should remain common ground.8
In the recent decade and more of bicentennial celebrations, Supreme Court Justice Thurgood Marshall reminded us that while the Constitution’s endurance is indeed something to celebrate, the framers had a distinctly limited vision of those who counted among “We the People.”9 Qualified voters when the nation was new bore more than a passing resemblance to the framers: the franchise was confined to property-owning adult white males, people free from dependence on others, and therefore considered trustworthy citizens, not susceptible to influence or control by masters, overlords, or supervisors.10 In 1787, only five of the thirteen states had abolished slavery, women did not count as part of the franchise-holding, politically active community in any state, and wealth qualifications severely limited voter eligibility even among white males.11 In correspondence with a friend about the qualifications for voting in his home state of Massachusetts, patriot and second president John Adams elaborated:
[I]t is dangerous to open so fruitful a source of controversy and altercation as would be opened by attempting to alter the qualifications of voters; there will be no end of it. New claims will arise; women will demand a vote; lads from twelve to twenty-one will think their rights not enough attended to; and every man who has not a farthing, will demand an equal voice with any other, in all acts of state. It tends to confound and destroy all distinctions, and prostrate all ranks to one common level.12
Our second president notwithstanding, equalizing voices and destroying rank distinctions have been dominant concerns in recent generations and, as one would expect, the focus of several Madison Lectures.13 Although the word equal, or equality, in relation to individual rights does not even appear in the original U.S. Constitution or in the first ten amendments that compose the Bill of Rights,14 the equal dignity of individuals ideal is part of our constitutional legacy, even of the pre–Civil War original understanding, in this vital sense. The founding fathers rebelled against the patriarchal power of kings and the idea that political authority may legitimately rest on birth status. Their culture held them back from fully perceiving or acting upon ideals of human equality and dignity. Thomas Jefferson, for example, when president, told his secretary of the treasury: “The appointment of a woman to public office is an innovation for which the public is not prepared, nor am I.”15 But the founders stated a commitment in the Declaration of Independence to equality and in the Declaration and the Bill of Rights to individual liberty. Those commitments had growth potential. As historian Richard Morris has written, a prime portion of the history of the U.S. Constitution is the story of the extension (through amendment, judicial interpretation, and practice) of constitutional rights and protections to once-excluded groups: to people who were once held in bondage, to men without property, to Native Americans, and to women.16
I. Collegiality in Appellate Decisionmaking
I turn now to the first of the two topics this lecture addresses—the style of judging appropriate for appellate judges whose mission it is, in Hamilton’s words, “to secure a steady, upright, and impartial administration of the laws.”17 Integrity, knowledge, and, most essentially, judgment are the qualities Hamilton ascribed to the judiciary.18 How is that essential quality, judgment, conveyed in the opinions appellate judges write? What role should moderation, restraint, and
collegiality play in the formulation of judicial decisions? As background, I will describe three distinct patterns of appellate opinion-casting: individual, institutional, and in-between.19
The individual judging pattern has been characteristic of the Law Lords, who serve as Great Britain’s Supreme Court. The Lords sit in panels of five and, traditionally, have delivered opinions seriatim, each panel member, in turn, announcing his individual judgment and the reasons for it.20
In contrast to the British tradition of opinions separately rendered by each judge as an individual, the continental or civil law traditions typified and spread abroad by France and Germany call for collective, corporate judgments. In dispositions of that genre, disagreement is not disclosed. Neither dissent nor separate concurrence is published. Cases are decided with a single, per curiam opinion generally following a uniform, anonymous style.21
Our Supreme Court, when John Marshall became Chief Justice, made a start in the institutional opinion direction. Marshall is credited with establishing the practice of announcing judgments in a single opinion for the Court.22 The Marshall Court, and certainly its leader, had a strong sense of institutional mission, a mission well served by unanimity. Marshall was criticized, in those early days, for suppressing dissent. Thomas Jefferson complained: “An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind, by the turn of his own reasoning.”23
My Own Words Page 22