Monday, September 5, 2005
As I turned in my ID on the last day of my clerkship with Supreme Court Justice Ruth Bader Ginsburg, I felt a lump in my throat as I imagined how great it would be if I could remain. "Justices get to stay," I thought. "They don't have to leave this amazing place."
Chief Justice William H. Rehnquist's death underscores my error. The stripes that adorned his robe now embody the wisdom Robert Frost once shared: Nothing gold can stay. Whether or not one agreed with the views of "the Chief," this much is clear: Because of his leadership, he was a great chief justice.
When first appointed, he was at the right end of the court. Yet slowly, the court moved toward him; arguments he had made in dissent became the majority's view. From limiting the rights of criminal defendants and congressional power to making church and state less separate and abortion restrictions more robust, Chief Justice Rehnquist has had an enormous impact.
I am tempted to add that the Chief shifted during his tenure. In recent years, he reaffirmed Miranda rights and rejected a lower court's handling of capital cases. He also limited states' rights so Congress could combat sex discrimination.
It's a nice image for moderates, but it's not accurate. The Chief started out very conservative and so remained. If he seemed less so recently, that's because of his commitment to judicial supremacy, strategic considerations, and the reality that Justices Antonin Scalia and Clarence Thomas are even more conservative.
We should not lose sight of William Rehnquist's distinguished service as chief justice. The justices' commitments cause them to disagree often, yet they get along well. How do they pull off that feat?
Part of the answer was their leader. The Chief worked to create a supremely functional court by not turning intense disagreements into personal animosities; by not assigning the most tedious opinions to colleagues who disagreed with him; and by allowing each voice to be heard. The Chief led by example. Our elected officials should do the same -- particularly when our country is divided, a tragedy of biblical proportions has befallen the Gulf Coast and the court's future is at stake.
I am honored to have served at the court on the Chief's watch, and I'm grateful for the kindness he showed my fellow clerks and me during the short time we were there. But most of all, I am just so sad. No one gets to stay.
NEIL S. SIEGEL
The writer is assistant professor of law and political science at Duke University School of Law .
The Post's story on the death of Chief Justice William H. Rehnquist [front page, Sept. 4] erroneously reported that alone among the justices, Justice Rehnquist said in 1983 that Bob Jones University had a legal right to exclude black students from its campus. Rehnquist did not deny that Bob Jones's racial discrimination violated federal civil rights laws. He maintained, however, that the Internal Revenue Service overreached the authority that Congress had conferred in denying Bob Jones tax-exempt status as a bona fide educational institution for reasons of "public policy" plucked from the prevailing zeitgeist. The Justice Department agreed with Justice Rehnquist.
The writer was associate deputy attorney general from 1981 to 1983 .
I was puzzled by the description of Chief Justice William H. Rehnquist as one of the Supreme Court's "great" leaders.
"Influential," I could understand, but "great" does not jibe with the rest of the news story, which goes on to describe someone who "paved the way for swifter executions," even though we know that the death penalty is sometimes applied in error and always inequitably; and who supported "separate but equal" treatment of African Americans and whose later repudiation of this policy is taken with a "skeptical view" by historians. In fact, for Rehnquist, "federalism" and the narrow reading of the 14th Amendment appear to have been dignified code language for a philosophy that would allow what are known these days as red states to treat minorities poorly without interference from the federal government. Is this really a legacy that can be hailed as "great"?
We live in an age of too much talk and tell-all -- and far too much pressure on public figures to give up their privacy. I found it moving to see Chief Justice William H. Rehnquist's reserve and stoicism in his battle with cancer.
The chief justice didn't release his medical records, authorize his doctors to hold news conferences, complain about his fate or appeal for anyone's sympathy. There was eloquence and true dignity in his silence. He kept his own counsel, showed up for work and died with his boots on.
A grand example for all of us.