He had voted with the majority in the 5-to-4 decision, issued that June, after giving Senate testimony as a Justice Department official defending the spying and criticizing the suit.
That summer, Justice Rehnquist struggled with whether he should publicly explain his decision to remain on the case. The materials on the surveillance suit, filled with emotion, calculation and even anguish, were released on Monday by the Hoover Institution, along with court files covering Justice Rehnquist’s first three years on the court and other materials.
The cases before the court in those years were momentous. They included Roe v. Wade, finding a constitutional right to abortion; United States v. Nixon, ordering the president to comply with a subpoena in the Watergate investigation; and Furman v. Georgia, which suspended the death penalty for, as it turned out, four years.
But Justice Rehnquist’s files contain mostly un-illuminating draft opinions and perfunctory communications between the justices. What emerges from the fragile documents is as dry as the pages themselves, the sterile, courteous notes from one justice to another — “Please join me,” voicing support for a particular opinion.
In his more than 30 years on the court, Justice Rehnquist gained a reputation for workmanlike opinions with a minimum of fuss or flash. The new files are consistent with that reputation.
But the materials on the surveillance case, Laird v. Tatum, are more interesting. They foreshadow current controversies over domestic surveillance and judicial disqualification. On Friday, the court agreed to decide a case about whether state judges must disqualify themselves from cases involving people who spent money to get them elected.
In 2004, Justice Antonin Scalia refused to disqualify himself in a case involving the energy task force of Vice President Dick Cheney after it became public that the two had gone duck hunting together.
After joining the majority in the 1972 Laird case, Justice Rehnquist at first sought advice from only two colleagues. Chief Justice Warren E. Burger argued against issuing a statement, saying it would invite more attention to the controversy and perhaps create an unwelcome precedent. Justice Byron R. White, on the other hand, encouraged Justice Rehnquist to explain himself.
In August, Justice Rehnquist wrote to Justice Potter Stewart at his farm in New Hampshire, saying he needed help sorting out the conflicting advice. Some of the criticism of his actions had been “snide,” Justice Rehnquist wrote, and “The New York Times and Washington Post tend to feature the matter at every opportunity.”
“I definitely do not want to circulate” the draft statement “to all members of the court,” Justice Rehnquist wrote to Justice Stewart, “because I think that ties each of them in too much with what is and must remain my own responsibility.”
In a handwritten note six days later, Justice Stewart was ambivalent about the wisdom of issuing a statement explaining the decision on recusal, though he called the idea “basically healthy.”
“On the other hand,” Justice Stewart said, “I am sure you are not so sanguine as to think that the memo will satisfy the N.Y. Times, Washington Post or other critics. It will probably just further irritate them, and they do have the last word.”
Justice Rehnquist did issue a statement, in the fall of 1972. It said no rule of judicial ethics prohibited his participation and that a 4-to-4 deadlock resulting in an automatic affirmance was undesirable. He said he had not worked on the case at the Justice Department, where he had been head of the Office of Legal Counsel, but only offered his views on the case in public.
In an early draft, he had said “the question is probably a fairly close one.” He deleted that passage from the published version.
But he did say in the final version that “I do not doubt that a litigant in the position of respondents would much prefer to argue his case before a court none of whose members had expressed the views that I expressed about the relationship between surveillance and First Amendment rights while serving as an assistant attorney general.”
As Justice Stewart had predicted, newspaper editorial boards did continue to question the decision to stay on the case.
The question of whether Justice Rehnquist should have disqualified himself remained a live one when President Ronald Reagan nominated him to be chief justice in 1986. Some senators cited the Laird case in voting against the nomination.
When cases arising from the Watergate investigation reached the Supreme Court, Justice Rehnquist took a different approach to disqualification.
“Because of my prior close professional association with John Mitchell in the Justice Department,” he told his colleagues in 1974, “I will not participate in the consideration or decision” of a case involving Mr. Mitchell, the former attorney general.
Although Justice Rehnquist similarly did not participate in U.S. v. Nixon, he apparently did review draft opinions in the case, leaving marks in red ink next to passages dealing with the background facts of the case and with court decisions in prior cases involving claims of executive privilege.
The papers released Monday are a small part of a collection of documents donated to the Hoover Institution at Stanford University after Chief Justice Rehnquist’s death in 2005. The Rehnquist family will release court materials covering only the years from which no justices remain alive. Justice Stevens, the court’s longest-serving member, joined the court in 1975. Additional materials, including personal correspondence and other writings, will be released next year.
As austere as Justice Rehnquist’s professional work could be, he had a playful side and was an active participant in the life of the court.
Almost immediately after he joined the court, he and several of his law clerks challenged their counterparts in Justice White’s chambers to a soccer match, by means of a two-page single-spaced memorandum on the “minimum standards for a meaningful soccer tournament.”
In 1973, he complained to the chief justice about the justices’ dining room. “Ours combines,” Justice Rehnquist wrote, “to a degree that might be thought impossible, baronial elegance with dreariness. Might there be some possibility of using the new Chippendale table?”
Chief Justice Burger’s response: “You should have seen it in 1969.”
An eighth-grader named Lori Rhodes wrote to Justice Rehnquist in 1972. She wanted to know how people became Supreme Court justices.
“It is fair to say that there does not appear to be any one single qualification or group of qualifications that a Supreme Court nominee must have,” Justice Rehnquist responded. One group that seemed to do well, he said, were “people who were serving in the executive branch of their administration, as I was at the time President Nixon appointed me.”
Also released were the future justice’s meticulous notes from law school, which he kept in handsome hardbound volumes and sometimes illustrated with proficient line drawings, and a journal he had kept off and on starting in 1947. In the journal, Justice Rehnquist made notes on what he was reading (“undoubtedly Dewey does not wish his ideas carried to logical conclusion”) and where he was hiking, recorded “poker winnings of a dollar,” and transcribed quotations from, among others, Montesquieu, Goethe and Ring Lardner.
Justice Rehnquist dissented in Roe v. Wade. His files contain newspaper and magazine clippings, some of them critical, as well as disturbing color photographs of aborted fetuses. Justice Rehnquist saved a copy of a Roman Catholic newspaper with a cover illustration of the seven justices in the majority joined by the grim reaper. “U.S. Supreme Court: Death Penalty for the Unborn,” the headline said.