Book Excerpt: 'Supreme Conflict'


The new chief justice was a master of the short statement at the Court, and he demanded brevity from fellow justices in their conferences. Rehnquist made it known that he expected less talk than his predecessor Burger had allowed. He found endless debate unproductive, and he believed the justices could best exchange legal reasoning and ideas in written memos and drafts. Whenever Rehnquist thought a justice went on too long in conference, he would simply cut him off. "It will come out in the writing," he'd say.

"Bill Rehnquist was concerned about efficiency. He didn't want to waste time. You could raise your hand, but it was not encouraged," O'Connor said of the conferences. "I thought Rehnquist's push for efficiency was a pretty good thing -- to get on with the task and get the work done."

O'Connor voted often with Rehnquist in her early years, when he was the Court's most conservative member. Later, as chief justice, Rehnquist moderated his position on some issues, and O'Connor did as well. But as O'Connor entered her second decade on the Court, she began being pulled further left. Her voting patterns looked almost the same, but they didn't tell the full story. Increasingly, she was holding the conservatives back, staying on their side, but refusing to embrace sweeping rulings. By the early 1990s, Rehnquist found himself losing her vote on many of the era's major cases, as O'Connor became more liberal.2 Unlike Burger, who would invite O'Connor to tea when he wanted her vote, Rehnquist kept his distance.

As chief justice, Rehnquist rarely pushed the independent O'Connor, even when she sided with liberals on social issues. Despite their long friendship -- and the number of times he needed a fifth vote -- it was a rare instance when Rehnquist picked up the phone to press his views. Conservative critics of Rehnquist grumbled that he wasn't put- ting his all into the job. He could have been more effective in managing O'Connor, they complained, instead of just standing by while his friend abandoned them on the cases they cared about the most.

It wasn't Rehnquist's style to lobby. Once, in Clarence Thomas's first year on the Court, the new justice was struggling with a case over the plight of thousands of Haitians who'd fled their war-torn country on boats for the United States. The George H.W. Bush administration ordered the coast guard to intercept them and return them directly to Haiti. Lawyers asked the justices to step in and stop the coast guard. Thomas was anguished. He sympathized with the Haitians. He called Rehnquist for advice, and the chief referred Thomas to a favorite poem by Arthur Hugh Clough. "Say not the struggle naught availeth," the poem begins, urging fortitude in the face of battle. It then ends on a hopeful note: "Westward look, the land is bright."

Thomas made a copy of the poem and slid it under the glass top of his desk, where he's kept it. He joined seven other justices and declined to intervene in the plight of the Haitian boat people. "I am deeply concerned about these allegations" of mistreatment in Haiti, Thomas wrote in a separate opinion explaining why the Court would not step in. "However, this matter must be addressed by the political branches, for our role is limited to questions of law."3

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