POLITICS JUNE 21, 1993
Having peered behind the red velvet curtains of the Rehnquist Court, the press now tells the embarrassed justices that they have nothing to be embarrassed about. But after spending last week in the Marshall archives, I sympathize with William Rehnquist's fears. The portrait of the justices that emerges from their internal correspondence is not, in fact, particularly flattering. Far from showing a scholarly Court "communicating in utmost sincerity," as The New York Times put it, the papers reveal that the justices rarely communicate in writing about the substance of their work.
In the most dramatic cases of the Rehnquist era -- flag burning, freedom of religion and the right to die -- the justices are content to join opinions and dissents without requesting any substantive changes at all. Most "opinions of the Court," the files demonstrate, represent the legal reasoning of one person, scarcely changed by colleagues who agree with the result. The justices are always courteous, and occasionally even playful. (Rehnquist introduced a draft of his infamous 1991 nude dancing opinion with a verse from a once popular song: "Accentuate the positive/Eliminate the negative/Latch on to the Affirmative/Don't mess with Mr. In Between.") But with a few exceptions, they do not seem terribly interested in persuading, or being persuaded by, their colleagues.
The most painful irony of the Marshall papers is that the justice most likely to have been embarrassed by their release was Thurgood Marshall himself. Marshall's habit of delegating virtually all of his writing to his clerks, especially during his later years, is hardly news to Court observers. (Only Carl Rowan, Marshall's partisan biographer, tried implausibly to deny this.) But it is still discomforting to face the evidence. Throughout the Warren, Burger and Rehnquist eras, Marshall's clerks wrote detailed recommendations about every case, on which Marshall usually scrawled his assent with a blue pencil. The Roe v. Wade file, for example, includes a memo from Mark Tushnet, a Marshall clerk, urging the justice to ask Harry Blackmun to draw the line for abortions at fetal viability, rather than at the end of the first trimester. Marshall obliged, and after further lobbying from Brennan, Blackmun extended the deadline.
By the 1980s, however, Marshall's disengagement had reached its extreme. Journalists digging for scoops in the most famous cases of the Rehnquist era have been largely disappointed. In fact, the most internally contested case of Marshall's last year on the Court was Lankford v. Idaho, a scarcely noticed appeal in which Marshall almost agreed, for the first time in his career, to uphold the death penalty. The prosecutor had promised that he wouldn't ask for the death penalty; so the defendant's lawyer, relying on the promise, failed to introduce mitigating evidence that might have reduced his client's culpability. But the judge decided to impose capital punishment on his own. Marshall, a stickler for technicalities ever since his days as a great advocate, was so disgusted by the lawyer's incompetence that he cast the fifth vote to affirm the sentence. A delighted Rehnquist assigned him the majority opinion.
Marshall's law clerk then wrote an impassioned memo to Marshall. Lankford, she pointed out, appeared to be the first case in which Marshall had ever voted to uphold the death penalty, which he had previously said was always unconstitutional under the Eighth Amendment. Perhaps Marshall had not realized that "the question presented in Lankford is `[w]hether a death sentence violates the Sixth, Eighth and Fourteenth Amendments' (emphasis added)," she wrote. The next memo in the file is a handwritten letter from Marshall to Rehnquist: "I am sorry but I must ask you to re-assign Lankford v. Idaho. The question presented is `whether a death sentence violates the Sixth, Eighth and Fourteenth Amendments' (emphasis added). I cannot bring myself to endorse the death penalty under the Eighth Amendment." When the dust settled, Stevens, writing for a 5-4 majority, reversed the conviction.
Lankford is a distressing case, but not because it shows a tie-breaking justice changing his vote. On the Platonic ideal of a Supreme Court, justices would change their positions often, and without embarrassment, in the spirit of intellectual experimentation and in response to the reasoned arguments of their colleagues. What makes Lankford distressing is that the justice changing his vote does not appear to have grappled with the constitutional issues the case presents.
In his disengagement, however, Marshall was hardly unique. Other dramatic shifts on the Rehnquist Court are rare; but when they occur, they too contain little evidence of rigorous debate about the text and history of the Constitution. A 1989 case, Pennsylvania v. Union Gas, is an even starker example of how crucial constitutional questions are decided with little debate. Byron White provided the fifth vote to uphold an interpretation of the Eleventh Amendment that is patently inconsistent with its text and history. His cryptic concurrence became law school legend: "I agree with the conclusion reached by Justice Brennan ... although I do not agree with much of his reasoning. Accordingly, I would affirm." But the Marshall files reveal that White never bothered, in earlier drafts or in correspondence with his colleagues, to provide an intelligible explanation for his vote. Nor are the other conservatives any more forthcoming about their reasons for betraying their "strict constructionist" principles. Instead, the debate, which is more extensive than usual, focuses on the meaning of the disputed statute and ignores the important constitutional question entirely.
What can account for the lack of intellectual debate on the Rehnquist Court? The overriding reason, of course, is the very different levels of engagement among the justices. (Stevens and Scalia are usually first off the mark.) But there is a powerful institutional explanation as well: Rehnquist's mania for efficiency. In a plaintive 1989 letter to Rehnquist, Stevens objected to the chief justice's "unfair" system of reducing the share of majority opinions assigned to justices who fail to get their dissents out within four weeks after the majority opinion circulates. "I also think it may be unfair to give a black mark to a Justice who does not vote immediately after a dissent circulates," Stevens added. "Too much emphasis on speed can have an adverse effect on quality."
The Marshall papers confirm that the justices also feel tremendous internal pressure to join a majority opinion as soon as it circulates, committing themselves before they have had a chance to consider the best arguments on the other side. (Because of the low quality of many briefs and arguments, and the lack of debate at Conference, the best arguments often do not surface until the dissenting justice has had a chance to focus on them.) Scalia, to his great credit, has proposed that no majority opinions should be joined before the dissent has circulated. A chief justice less concerned with efficiency would endorse the reform. But this would reduce Rehnquist's ability to control the Court and to mold the law by exercising his power of assignment.
Comparisons are difficult, but there appears to be less debate under Rehnquist than under Burger and Warren. Few case files in the '80s can compare to the 1971 busing case, where Black, Harlan, Brennan and Douglas, in a remarkably detailed flurry of memos, wrestled the opinion from a clueless Warren Burger. Nevertheless, some of the great case files from the Warren era are thin; and the publication of Bob Woodward and Scott Armstrong's The Brethren (1979), which relied heavily on internal memoranda, may have encouraged the justices to put less on paper. This much, at least, seems clear: the dramatic decrease in the number of cases accepted for review in the '80s has not produced the corresponding increase in the quality of debate that the conservative justices promised. Instead, Rehnquist's most conspicuous legacy has been to make the Court more coldly bureaucratic.
As the voyeuristic thrill begins to fade, there are obvious costs to the hasty release of the Marshall papers: namely, the danger that other justices like Harry Blackmun, whose conference notes are much more meticulous than Marshall's, will be inclined to give their papers to the Virginia Military Institute rather than to the Library of Congress. But the most serious concern -- that fear of future disclosures will inhibit debate among the justices -- is hard to credit. For here is the most disconcerting secret of the Rehnquist Court: there is not all that much debate to inhibit.