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Chief Justice John Roberts first arrived at the Supreme Court in 1980, as a law clerk to then-Associate Justice William Rehnquist, for what would be a formative year in his judicial calling.
The two men were destined for a position that only 17 jurists in American history have held. Rehnquist became chief justice in 1986, and Roberts succeeded him when he died in 2005.
As the now-public papers in Rehnquist’s archive demonstrate, Roberts witnessed his mentor moving strategically behind the scenes. Rehnquist weakened liberal precedents where he could and planted seeds for today’s conservatism. Coincidentally, some of the cases at the high court today have parallels from Roberts’ time as a clerk, including on the scope of presidential power, the conditions of federal-state programs and unlawful discrimination.
Roberts, now about to notch 20 years at the helm of the federal judiciary, also moves tactically. He often takes incremental steps, with an eye to the next cases coming. That was his pattern, for example, as he cut back on voting rights and federal regulatory power.
He readily drops references to cases from his clerk year into opinions, as he did last year in the ground-breaking Donald Trump presidential immunity case and most recently last week in a case regarding attorneys’ fees in civil rights cases.
Today, with a conservative dominance that Rehnquist might not ever have imagined, Roberts is the leader of a 6-3 right-wing majority that has been reshaping American life. Roberts also is facing a new challenge in Trump’s return to the White House and the litigation his aggressive effort to overhaul the government has generated.
Back in 1980, Rehnquist represented the far-right pole of the court, and he made it a mission to reverse progressive landmarks of earlier decades. His files at the Hoover Institution on the Stanford University campus attest to Roberts’ close-up view of Rehnquist’s focus and firm ideology and ability to take charge.
Overall, the court – as Roberts first saw it and as he now leads it – negotiates largely through memos and draft opinions circulated among the nine. The justices, appointed for life, deal in a collective courtesy, cloaking criticism in traditional salutations with light asides as they engage in personal arm-twisting or strategize on how to win over a recalcitrant colleague.
Disagreements can be large or small. During Roberts’ year as a law clerk, Justice Harry Blackmun, a stickler on grammar, protested “commute” as a noun in an opinion William Brennan was writing. (Brennan, producing modern dictionaries, urged him to drop it. “Am I stubborn!” Blackmun wrote back, continuing the debate – but not winning it.)
The justices tussled over potentially offensive language, although their era was far from that of today’s sensitivities. Blackmun and Chief Justice Warren Burger debated whether it would be appropriate to use phrases such as “Russian Roulette” or “Mexican Standoff.” (Blackmun considered them slurs, Burger did not.)
In a related vein, and without question a slur, Rehnquist ended one private note to Burger, as they were negotiating among justices, with “As the hypothetical Japanese is supposed to have said in a not too current ‘ethnic’ joke, ‘Rots o’ Ruck!’”
Roberts today downplays conflict among the nine. And as a young law clerk, he was ready to put a gloss on internal tensions, as seen in a note found in a separate archive, the Harvard collection of US Appellate Judge Henry Friendly, for whom he had clerked before Rehnquist.
Roberts happened to begin his Supreme Court service a year after publication of “The Brethren,” a book by Bob Woodward and Scott Armstrong fueled by private interviews with clerks and justices.
“Nothing that I have witnessed suggests that there will be any lessening of the divisions on the Court this term,” Roberts wrote to Friendly in 1980. “But I was pleased to see that the rumors of personal animosity and pettiness circulating in the wake of The Brethren do not seem to have any substance. The Justice (Rehnquist) is at once amiable and challenging and very open with me and my two co-clerks.”
Not all Supreme Court justices arrange to make their papers available to the public upon their death, and those who do often restrict when materials may be opened, tied to the lives of the colleagues with whom they served.
After the deaths of Justices John Paul Stevens, in 2019, and Sandra Day O’Connor, in 2023, the most recent batches, including Roberts’ clerkship year, were opened at the Hoover Institution.
In the archival materials related to his service for Rehnquist, Roberts and his co-clerks remain largely a background presence. Their memos straightforwardly lay out points of law from their research. Roberts addressed Rehnquist by his initials, “WHR,” and signed his notes simply “John.”
Yet, it is plain Rehnquist revealed his strategic calculations to his clerks, including as he tried to diminish the force of a case considered a woman’s rights milestone. In the internal correspondence, Rehnquist called the 1976 case of Craig v. Boren “one of the silliest cases this Court has ever decided.”
That precedent, it just so happens, remains a point of contention in a pending dispute this session over state bans on transgender youth medical care.
The 1976 case – which Ruth Bader Ginsburg an American Civil Liberties Union women’s rights advocate and future justice, helped develop – centered on an Oklahoma law that allowed 18-year-old girls to drink 3.2% beer but required boys to wait until age 21. The court struck down that law as violating the 14th Amendment guarantee of equal protection. The ruling became one of a series of decisions in the 1970s that enhanced protections for women despite originating with disputes brought by men.
Rehnquist and Burger had been the only dissenters to Craig v. Boren, and in the fall of 1980, Rehnquist was looking to scale it back in a related case. Rehnquist had a tentative 5-4 majority to uphold a California statutory rape law that criminalized underaged sex for young men but not young women. He wanted it to appear that he was abiding by the reasoning of Craig v. Boren but, in truth, would try to undermine it.
“As you can see,” Rehnquist wrote to one of Roberts’ co-clerks, “we have the narrowest of majorities to support an opinion affirming the Supreme Court of California in this case. I would like to see it drafted as to give nominal obeisance to Craig v. Boren, while undercutting the reasoning of that case as much as possible.
“Craig is one of the silliest cases this Court has ever decided, but both Blackmun and (Lewis) Powell mentioned it in their Conference discussion, so that we cannot simply ignore it,” Rehnquist wrote in the new case called Michael M. v. Superior Court of Sonoma County.
When Rehnquist’s draft opinion was sent to colleagues a few weeks later, Blackmun saw immediately that Rehnquist was diluting the protection of Craig v. Boren for people claiming sex discrimination. Blackmun wrote him a note saying he wanted to uphold the California law, which the state argued would deter teen pregnancies, but he was concerned that Rehnquist’s draft failed to “follow the analysis of Craig v. Boren” and instead “substituted a lower level of scrutiny” for laws discriminating based on sex.
In the end, Blackmun declined to sign onto Rehnquist’s reasoning, even as he provided the fifth vote for the bottom-line judgment permitting the California law.
ACLU lawyers currently challenging a Tennessee ban on hormones, puberty-blockers and other gender affirming care for youths under age 18 referred to Craig v. Boren as they argued the law fails to meet constitutional standards.
“The Court has been particularly vigilant in applying heightened scrutiny to protect people who fail to conform to overbroad generalizations about the way men and women are – or how they should be,” they wrote in a brief.
It is important to note that Rehnquist, for his part, came around to that majority view in his later years. The challengers in the pending trans care case cited a 2003 opinion by then-Chief Justice Rehnquist for the proposition that a “long, extensive, and misguided history ultimately prompted (this Court) to hold that measures that differentiate on the basis of gender warrant heightened scrutiny.”
Pennhurst and protections for the mentally disabled
The similarities between Rehnquist and Roberts run deep, including their Upper Midwestern roots and first-in-the-class confidence. Roberts spent his youth in Indiana and earned his law degree at Harvard. Rehnquist, a Wisconsin native and Stanford Law graduate, had himself earned a coveted clerkship with Supreme Court Justice Robert Jackson in the early 1950s.
Both also worked as top executive branch lawyers. After his clerkship Roberts went into the Ronald Reagan and then George H.W. Bush administrations. Rehnquist had served in the Richard Nixon administration before his court appointment.
As a top Justice Department lawyer, Rehnquist proved himself an ardent defender of executive power and law enforcement, often seeking to limit individual rights. He continued the pattern on the bench.
In the 1980-81 session he took the lead for a majority in a difficult case involving institutional treatment of the developmentally disabled, or “warehousing” as critics called it. The controversy led to a ruling that would be invoked through the years, including by Roberts, in disputes over federal-state social services.
At issue for Rehnquist and his colleagues in Pennhurst State School and Hospital v. Halderman was a 1975 federal law that helped finance state care of the mentally ill. The question was whether the law’s “bill of rights” required states to provide a certain level of treatment and residential care.
Lower court judges had declared conditions at a 1,200-patient institution in Pennsylvania inhumane and dangerous and said Pennhurst had violated the law’s requirement that patients be placed in the least restrictive environment, including community-based housing.
Rehnquist believed the law held no such rights for patients. His approach, as he sketched it in a memo, particularly distressed Thurgood Marshall, the court’s first Black justice.
“None of the memoranda as yet circulated in this case is entirely satisfactory to me,” Marshall wrote. “The position taken by Bill Rehnquist is the most untenable: that Congress’s deliberate effort to do something was merely hortatory” for states receiving federal funds.
Marshall also wrote of the Pennhurst State Hospital: “No one involved in this litigation disputes that the conditions at Pennhurst are abysmal. Nor does anyone dispute that Congress had in mind Pennhurst and other institutions like it when it enacted the ‘bill of rights,’ section ….”
After two pages of criticisms, Marshall wrote, “Well, there it is!” and “Sincerely, T.M.”
Rehnquist prevailed with a majority, finding that the 1975 law did not impose a new obligation for states on patient care. “The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract,’” he wrote. “… Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”
Marshall joined a dissenting statement that insisted the law’s “bill of rights” provision “cannot be treated as only wishful thinking on the part of Congress, or as playing some fanciful role in the implementation of the Act. The section clearly states rights which the developmentally disabled are to be provided.”
More than 30 years later, Roberts relied on Rehnquist’s Pennhurst decision for part of his 2012 landmark opinion saving the Affordable Care Act. He voted to uphold an individual insurance mandate but strike down the portion of the law that would have forced states to accept an expanded Medicaid program as a condition of federal funding.
Roberts cited Rehnquist’s 1981 Pennhurst opinion for several propositions, including that “if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.”
One of the most significant cases that Rehnquist handled during Roberts’ year arose from the Iranian hostage crisis and the deal President Jimmy Carter made at the end of his term to win release of the 52 Americans held at the US embassy in Tehran.
The deal to free the Americans held for more than a year called for the release of more than $2 billion in Iranian assets that had been frozen when the embassy was seized. The engineering company Dames & Moore, which had earlier won a $3.8 million judgment against Iran, sued the US government when that judgment was voided as part of Carter’s plan to discharge Iranian assets.
The justices heard the case on an extremely quick schedule as they were ending their regular session. After oral arguments on June 24, 1981, Chief Justice Burger wrote the justices: “To ‘get the show on the road’ Bill Rehnquist has agreed to get an opinion in our hands by noon Sunday, next – if not before.”
Rehnquist was a reliable lieutenant for Burger in pulling together decisions for the court. He was quick, well-organized and more affable with his colleagues than the prickly Burger, who was appointed chief by Nixon in 1969.
In about a week, Rehnquist pulled together a majority opinion endorsing the president’s authority to settle financial claims against a foreign government and order the transfer of assets.
Rehnquist emphasized that the decision was narrow, quoting the justice for whom he had clerked, Robert Jackson, who said the justices “decide difficult cases presented to us by virtue of our commissions, not our competence.”
More than four decades later, Roberts referred to Rehnquist’s opinion in Dames & Moore v. Regan as he wrote the opinion for a very different test of presidential power. When the court granted Trump substantial immunity from criminal prosecution, Roberts wrote in the July 1 decision that few prior cases could guide the court. “That is because proceedings directly involving a President have been uncommon in our Nation, and,” Roberts said, citing Dames & Moore, “‘decisions of the Court in this area’ have accordingly been ‘rare’ and ‘episodic.’”
Justice Sonia Sotomayor, who wrote for dissenting justices in the Trump case also plucked a line from Dames & Moore to chide Roberts for his sweeping decision on presidential immunity: “When forced to wade into thorny separation-of-powers disputes, this Court’s usual practice is to ‘confine the opinion only to the very questions necessary to decision of the case.’”
Back in 1981, Rehnquist’s colleagues flooded him with admiring notes, some referring to the help from his law clerks. “Dear Bill: I join in thanking and congratulating you – and your Chambers – on a super accomplishment, both in time and quality,” Powell wrote.
Burger took a frothier approach, telling Rehnquist, “I will place ten Brownie Points in your personnel file and grant you two weekends leave.”
Then, as now, the justices were concerned with leaks, ethics and how they were viewed in the press. A judicial pay case resolved in 1980 especially provoked their concerns about how they were viewed, as Rehnquist wrote, by the “fabled ‘man in the street.’”
When the justices subsequently faced the question of whether the lawyers who handled the pay litigation for federal judges deserved enhanced fees, Brennan warned, “the media would have a field day.”
And Justice John Paul Stevens scoffed at the suggestion “that counsel should be given special credit for handling unpopular litigation. … There are quite a few lawyers who would have regarded the opportunity to represent the Federal Judiciary as a privilege. It surely is not quite like a march on Selma.”
Burger wrote that opinion providing higher pay to federal judges, finding that when Congress blocked cost-of-living increases it violated the Constitution’s guarantee of no diminishment in their set compensation.
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Two days after the December 15, 1980, decision in the case of United States v. Will, Burger floated a proposal that would specifically benefit the nine justices.
The memo was marked “CONFIDENTIAL” at the top: “I am informed that the mechanics of the Administrative Office make it impossible to give Federal judges the benefit of the Will decision before December 30.”
But, he said, the justices’ salary checks “are independently drawn and absent dissent, the amounts due … will be delivered during this calendar year, provided we order the mandate to issue (immediately). I see no reason why this should not be done but I await any comments.”
The other justices were instantly against the idea of such special, quick action for themselves, and Burger was quickly outnumbered.
Rehnquist noted that they’d already “drawn press attention” with the decision that raised their pay and that speeding up the increase for their nine paychecks would “add more fuel” to the fire.
Nearly 25 years later, when Roberts appeared before the Senate Judiciary Committee after being tapped for elevation by President George W. Bush from a US appellate court, Roberts said he had been inspired by Rehnquist’s “dedication to duty” and “humility.”
He also remarked on his former boss’s desire to cut to the chase.
“I do remember doing a draft for him once, and coming in, and he had thought that the first topic sentence of each paragraph was good, and the rest of it could be junked,” Roberts recalled. “I pushed back a little bit … and he said at that point, ‘Well, I’ll tell you what. Why don’t we put all this other stuff down in footnotes? We’ll just keep sort of the first sentence of each paragraph, put the rest down in footnotes.’
“And I figured, well, that was a fair compromise. So I would go back and rework it, and hand it to him with some pride. He looks at it and he says, ‘Well, all right. Now take out the footnotes.’”
