The Rehnquist-Jackson Letters

I was pleased to open the Legal Times this morning [subscription required] and discover that the next issue of the The Green Bag will feature a newly discovered copy of William Rehnquist’s parody of Gilbert & Sullivan’s Mikado , featuring the Vinson Court of Rehnquist’s year in Robert Jackson’s chambers.

Jackson scholar John Barrett of St. John’s University School of Law in New York recently found a parody of a song from Mikado written by Rehnquist that sat unnoticed for 50 years in Jackson’s papers at the Library of Congress. Barrett wrote about it in the latest issue of the unconventional law review Green Bag .

Some of the droll references in the ditty are obscure, but they amounted to a fairly biting critique of the Court then led by Chief Justice Fred Vinson. Vinson was having difficulty building consensus on a fractured Court—a problem that also vexed Rehnquist when he later became chief justice, and now faces Rehnquist’s successor, John Roberts Jr. “So he decreed with stern portent,” Rehnquist wrote of Vinson, “That who thereafter did dissent/ Unless he had the Chief’s consent/ Would forthwith be beheaded.”

Barrett’s work on the life and career of Robert Jackson deserves applause on all counts, but it looks like this letter is a particularly delightful treat. In my own limited research in Justice Jackson’s files (reflected, in part, in a short law review article published a couple years ago), I came across a fair amount of Jackson-Rehnquist correspondence, including the late chief’s wedding invitation. My favorite was a post-clerkship letter from Rehnquist, criticizing Chief Justice Warren and offering the future chief justice’s view of the court’s “first among equals”:

Most everyone here was quite disappointed by the nomination of Warren to the Chief Justiceship; perhaps this is less than fair to the man, since there certainly is no affirmative blot on the record.  But I cannot help choking everytime I hear the line peddled by, among others, TIME magazine, to the effect that “what the court really needs is not so much a lawyer as an administrator and conciliator.” What the court needs is a Chief Justice; an ability to handle the administrative side and to compromise dissidence would be an asset to an able, experienced lawyer on the job, but they certainly are no substitute for some experience in the forums whose actions he is called to review, nor for the ability to think and write about the law. I think the few opinions of Warren I have seen have not been very good, but I don’t suppose one should hold that against him; maybe writing opinions is an art for which the knack is acquired.

At the risk of pointing out the obvious, it’s hard not to marvel at the fact that young Rehnquist’s own ideal chief justice appears to be none other than John Roberts, who clerked under Rehnquist and, upon Rehnquist’s death, succeeded him.

Back to the letter:  Rehnquist continues with a few updates as to his life, both professionally (“My professional life is both interesting and enjoyable.  I was admitted to the bar last month, and have since then argued several motions and assisted in the trial of one case.”) and personally ("Nan and I have contracted with a builder to build a house for us in the suburbs here … I am getting to feel quite settled and domestic .” ). He closes with reflections on the value of a clerkship:

I have occasionally reflected on the experience which I got while working for you; I think there is a tendency when one first leaves a job like that, and turns to the details of a general law practice, to feel, “Why, hell, that didn’t teach me anything about practicing law.”  In a sense it didn’t, and in that regard I am sure you would be the first to agree that there is no substitute for actually practicing. But I can’t help but feel that, in the addition to the enjoyment from the personal contacts, one does pick up from a clerkship some sort of intuition about the nature of the judicial process. it is so intangible I will not attempt to describe it further, but I think it is valuable especially in appellate brief-writing.