Court Nominee Stood Out for Conservative Rigor - New York Times

Court Nominee Stood Out for Conservative Rigor - New York TimesJuly 31, 2005
Court Nominee Stood Out for Conservative Rigor
By ADAM LIPTAK and TODD S. PURDUM

They are not exactly father and son, but they share a singular bond in an elite business: 25 years ago this summer, almost exactly half his lifetime ago, John G. Roberts went to work for William H. Rehnquist, and now he stands poised to become the first Supreme Court clerk in American history to sit on the bench alongside the justice he served.

His 13 months in the chambers of Justice Rehnquist spanned the period of the 1980 election and the dawn of the Reagan revolution in Washington. It was a heady time of relentless work, long walks on Capitol Hill discussing cases informally with the justice and sharp-elbowed basketball games in the Supreme Court gym, wryly referred to as the "highest court in the land."

It was a time when the Supreme Court was far different, more liberal, and that made John Roberts stand out among the other clerks.

"John's conservatism was in fact a sign of intellectual courage, coming out of Harvard and being surrounded by law clerks from mainly liberal, East Coast, Ivy institutions," said John A. Siliciano, a law professor at Cornell who clerked for Justice Thurgood Marshall at the same time.

His was "a very solid, rigorous, coherent view of very important social questions," Professor Siliciano said, "about the relations between courts and legislatures, about the relationship between the federal government and the state, between the public sphere and the private."

Fifteen of the 32 Supreme Court clerks in the 1980-81 term agreed to be interviewed about Mr. Roberts, including both of his fellow Rehnquist clerks. They offered a revealing portrait of an affable, ambitious and frankly conservative intellectual, much like his boss.

"John certainly was in sync with his justice," said Paul M. Smith, who clerked for Justice Lewis F. Powell Jr. and is now a lawyer in Washington who frequently appears before the Supreme Court.

At the most recent reunion of former Rehnquist clerks earlier this summer, Judge Roberts and several other former clerks played the chief justice in a humorous skit depicting various stages of his career, beginning with those long, Nixon-era sideburns and culminating in a white-haired man with a cane.

Mr. Roberts's clerkship was bookended by two shocks to the Supreme Court's system. The first was the publication in December 1979 of "The Brethren," an exposé of the court's inner workings by Bob Woodward and Scott Armstrong. The book relied heavily on indiscreet accounts by law clerks who had served in earlier years, which made the justices more cautious, several former clerks said.

When Mr. Roberts left a year later, the court was anticipating the arrival of Sandra Day O'Connor, the first female justice and the one Judge Roberts may now replace. The justices voted to drop the traditional reference to "Mr. Justice" in 1980.

But as far as Supreme Court terms go, Mr. Roberts served during a relatively routine one that included important cases on the First Amendment, federalism and sex discrimination, and ended with a notable affirmation of executive power.

At the time, Justice Rehnquist and Chief Justice Warren E. Burger represented the court's conservative wing. Justice Rehnquist, though, had begun to emerge as one of the court's intellectual leaders, intent on methodically moving his colleagues to the right. His influence grew when he became chief justice six years later.

Sprinkled through the arc of Judge Roberts's career, glimmers of Justice Rehnquist's influence can be detected, in memorandums the young clerk wrote at the time to decisions Judge Roberts, 50, has issued during his two years on the federal appeals court in Washington.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration's position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Few if any of the memorandums found so far from Mr. Roberts's clerkship shed much light on his political leanings. They are, if anything, concise and reliant on procedural points. They do, however, bear the dry wit that so many have cited in describing Mr. Roberts's writings and personality.

Most justices hired clerks who shared their views. But the Rehnquist clerks did not wear their politics on their sleeves, said Robert B. Knauss, a Los Angeles lawyer who also clerked for the justice that year.

"Frankly, the people that did were the liberal clerks, who were more out there, more aggressive, more, frankly, intolerant," Mr. Knauss said. "There were a few that were pretty aggressive that would try to come into the chambers and lobby you."

A Supreme Court clerkship is the ultimate legal status symbol, reserved for students of stunning intellectual horsepower. Almost all of the clerks who served with Mr. Roberts came from elite law schools - seven from Yale, five, including Mr. Roberts, from Harvard - and from prestigious lower-court clerkships.

And many would go on to enormous professional success, particularly in the academy. John E. Sexton, a clerk for Chief Justice Burger, is president of New York University. Michael W. McConnell, a clerk for Justice William J. Brennan Jr., was a noted law professor before he was appointed to the federal appeals court in Denver in 2002. Stephen L. Carter, a clerk for Justice Marshall, is now a law professor at Yale and a best-selling author.

But even in that group, Mr. Roberts stood out.

There were, Professor Siliciano said, two clerks he thought at the time might well end up on the Supreme Court. One was Mr. Carter, and the other was Mr. Roberts.

Only four former Supreme Court clerks have returned as justices: Byron R. White, who clerked for Fred M. Vinson; John Paul Stevens, who clerked for Wiley B. Rutledge; Stephen G. Breyer, who clerked for Arthur J. Goldberg; and Justice Rehnquist himself, who clerked for Robert H. Jackson.

The atmosphere in Justice Rehnquist's chambers was cozy and informal, but it was clear who ran the show, said Dean C. Colson, a Florida lawyer who was the third Rehnquist clerk in Mr. Roberts's year.

"This is a guy you didn't get anything by," Mr. Colson said of Justice Rehnquist. Referring to him by his current title, he added: "The chief would say: 'Here's the way I want to go. Here's the way I want it outlined. Here's the way I want it written.' And then he'd edit heavily."

The three clerks shared a small room with three desks, and the close quarters added to the intensity of the experience, Mr. Colson said. The justices worked harder in those days, deciding 138 cases on the merits in that term. In more recent years, the court has decided about 80 cases.

After Justice Rehnquist read the briefs in a case, he would poke his head into the clerks' office, Mr. Knauss recalled.

"He would point to one of us," Mr. Knauss said, "and say, 'I'd like to talk about such and such a case,' and we would go walking in the neighborhood and walk and talk about the case that would be argued in the next few days."

Clerks for other justices said they appreciated the wry humor than emanated from the Rehnquist clerks.

"I had the impression," said Robert Weisberg, a Stanford law professor who clerked for Justice Potter Stewart, "that they, with the permission and even encouragement of their boss, were prone to take a somewhat sardonic view of Chief Justice Burger's operation, which was pretty absurdly regal."

Justice Rehnquist let the clerks decide who would handle which case. They used a system similar to the NFL draft, but with a twist. The clerks could use a vote to claim a case or to reject one, all before knowing whether Justice Rehnquist would be assigned to write the majority opinion or decide to write a concurrence or dissent.

A clerk who did not vote carefully, Mr. Colson said, "could get stuck with a lot of tax cases."

Mr. Knauss and Mr. Colson declined to discuss the substance of the opinions Justice Rehnquist wrote that year or to say which clerks helped draft which decisions.

Much of the clerks' work consisted of summarizing the thousands of requests that the court receives each year to hear particular cases, known as petitions for writs of certiorari, or cert. petitions. In those days, five justices, including Justice Rehnquist, were part of a "cert. pool," meaning that a single clerk would write a "pool memo" for each case for all five justices. Other justices preferred to have their own clerks review every petition.

Mr. Colson estimated that each clerk in the pool produced 7 to 10 memorandums a week.

The memorandums Mr. Roberts wrote are in Justice Blackmun's papers at the Library of Congress, which were made public in 2004. They generally concern mundane topics, and he almost always concluded that the cases were unworthy of the court's attention.

But Mr. Roberts's memorandums stand out as terse, lucid and even elegant.

All through the fall of 1980, Mr. Roberts plowed through a huge range of cases, from an Osage Indian income tax dispute, to a complex cattle transaction, to a claim that a faulty search warrant had led to a cocaine conviction, to the validity of a lien for payment of repair of an aircraft propeller for a bankrupt airline, to the question of whether a hunting and fishing lodge owned by a foundry and used for entertaining customers was tax deductible. None of the cases made it to the court.

Some of the memorandums contain faint flashes of the sarcastic humor that Mr. Roberts would employ in internal communications in later years as a government lawyer. One of the "more modest claims" in a petition from the Christian-Bull Moose-Fighting Tiger Party, he wrote, "is that all the election laws of all the states are unconstitutional."

Twenty-five years after the clerkships ended, the memories that remain most distinct for many of Mr. Roberts's co-clerks involve basketball.

The Rehnquist clerks were a force to be reckoned with "on that horrific cement court above the library," recalled James J. Brudney, a law professor at Ohio State who clerked for Justice Blackmun. But Mr. Roberts brought more enthusiasm than skill to the game.

"He played an aggressive style of basketball that left other co-clerks with the bruises to show for it," Mr. Knauss said of Mr. Roberts.

Professor Brudney recalled that Mr. Colson was the best athlete in the group and so was not shy about shouting commands. When one of Mr. Roberts's shots went awry one afternoon, Professor Brudney said, "Dean Colson screamed 'way off!' to tell people where to position themselves."

That did not sit well with Mr. Roberts.

"You heard this somewhat meek but still assertive voice," Professor Brudney said, recalling Mr. Roberts's words: " 'Just "off" would have been sufficient.' "