BRIAN LAMB, HOST: William H. Rehnquist, chief justice of the United States, you have a book out called Grand Inquest. What's it all about?
WILLIAM REHNQUIST, CHIEF JUSTICE OF THE UNITED STATES, "GRAND INQUESTS" It's about two impeachment trials that took place in the Senate of the United States -- one of Samuel Chase, who was an associate justice of the Supreme Court in the first part of the 19th century, and the second of Andrew Johnson, who was president of the United States right after the Civil War.
LAMB: Why did you write it?
REHNQUIST: Because I thought both the trials had very interesting significance, and I thought they also had kind of a common thread in them. Both represented the Senate in action in a very unusual situation, and both also were kind of victories for the separation of powers that the framers implanted in the Constitution.
LAMB: One of the first confusing things you notice in the book is that there is a Samuel Chase and a Salmon Chase. What were the differences?
REHNQUIST: Well, they were two different people, obviously. Samuel Chase was a Marylander. He had been at the constitutional convention. He had been part of the liberty movement at the time of the Revolutionary War. He was of the revolutionary generation. Salmon Chase was born in New Hampshire, but he migrated to Ohio. Samuel Chase served on the Supreme Court from 1796-1810 as an associate justice. Salmon Chase was a senator from Ohio just before the Civil War. He was Lincoln's secretary of the Treasury. Lincoln appointed him chief justice in 1864, and he served for about eight or nine years.
LAMB: When do you get time to write books?
REHNQUIST: Oh, in my spare moments. Often during the summer recess of the court, sometimes on weekends. I mean, these were both written over a period of several years.
LAMB: This is the book that came out back in 1987. What's this all about?
REHNQUIST: It's about the Supreme Court, as you would expect from the title -- a little bit about my experiences as a law clerk when I first came to work for Justice Jackson in 1952, a little bit about the history of the court and the part its important decisions have played in the country, and a little bit about how the court works today.
LAMB: Back to the current book, “Grand Inquest”, when did you actually start writing on that and when did you finish it?
REHNQUIST: I would say I probably started the writing on it in 1987 or probably 1988, and I finally sent the galley proofs back to the publisher in December of last year.
LAMB: Where did the whole idea of an impeachment as a part of our government come from?
REHNQUIST: It came from the English usage. There was the famous impeachment trial of Warren Hastings before the House of Lords managed by members of the House of Commons at the end of the 18th century. Impeachment had been used as a method of procedure in the Houses of Parliament for quite a period of time at the time of our Constitution. I think that's where our framers got it from.
LAMB: In both the Samuel Chase situation and the Andrew Johnson situation, they were impeached by the House, but not convicted by the Senate. How come? I know that's a simple question, but it's a long answer.
REHNQUIST: It is a fairly long answer, and it isn't the easiest question in the world to answer. It's much easier to answer the question about Andrew Johnson than it is about Samuel Chase because some 30 of the senators out of the 54 who were in the Senate at the time of the Andrew Johnson impeachment after the Civil War left statements of their views. As to the Chase impeachment that took place in 1805, no one left any statement there. We have the letter of one of the senators to his wife who stayed at home in New York while he came down to Washington, giving a couple sentences as to why he voted the way he did. But in each case, the same thing happened. The majority party that controlled the Congress controlled both houses, and the House of Representatives voted to impeach with the pretty solid support of the majority party. The Senate was also controlled by that same party, to such an extent that if all the senators of that party -- the Jeffersonian Republicans in 1805 in the Senate, the Republicans or the present-day Republican ancestors in 1868 -- had voted to convict, each of those defendants would have been convicted. But in each case, a number of them broke ranks. Enough of them broke ranks so that there was an acquittal rather than a conviction, which showed that party discipline was not going to be the controlling factor in the use of impeachment.
LAMB: You write a lot about history in both your books, and you describe a lot of the characters -- I'm not sure you'd use that word "characters" of history.
REHNQUIST: Some of them were characters!
LAMB: What do you think of the way the system's grown over the years?
REHNQUIST: The American system?
LAMB: The American system, tripartite system of government.
REHNQUIST: Oh, I admire it greatly. I admire it greatly. I think it was remarkable for the framers to have conceived it. It was really quite original, the idea of a tripartite system of government that they set up, different from the parliamentary system that was coming into existence in some Western European countries. They sketched what they wanted done. They didn't try to bind future generations with a lot of detail, and the detail has been developed in cases like the two impeachments that I write about and a lot of court cases that decide constitutional questions, and, of course, in the numerous laws that Congress has enacted and the various presidents have signed.
LAMB: Who are some of your favorites back in those early days?
REHNQUIST: I think Alexander Hamilton has received a little bit of short shrift from history, and I think Jefferson has been treated a little bit too generously. I admire them both, but I admire them both about equally. I think if you asked most people, they would say that Jefferson is kind of a star of the first magnitude, whereas Hamilton is a star of the second or third magnitude. I don't agree with that assessment.
LAMB: You mentioned in both books "Federalist '78," where Alexander Hamilton said that the court was the least dangerous branch of the three. Why did you pick up on that? Do you think it is the least dangerous?
REHNQUIST: I think in the important sense of the word it is. As Hamilton says in "Federalist '78," "the Court has neither the power of the purse," which, of course, the Congress has, "nor the sword," which the executive has. It would have a very difficult time getting its mandates enforced if there was no support at all from the executive or from Congress. Witness the Little Rock school desegregation situation in the late '50s. The court has built a great deal of prestige, and I think is generally quite well thought of as a public institution in the country. It is always possible for the court to overreach its proper bounds and perhaps declare a lot of laws unconstitutional and frustrate the will of the majority in a way that it ought not be frustrated. In that sense, it poses a danger, but not the same sort of perhaps very active danger that a run-away Congress or runaway executive would.
LAMB: You mention in your books other Courts in the world. Is there another country in the world that has a similar court to ours or is there another one that you admire that comes close to what we do here?
REHNQUIST: Ours, of course, was the first to have the power of judicial review that Marshall espoused in the Marbury case in 1803. I think for almost 150 years the United States was all alone in having the doctrine of judicial review -- that the Supreme Court could invalidate an active Congress. But then after the Second World War, that idea began catching on in Western Europe, and there are a number of constitutional courts now in those countries. They don't work exactly the way ours do, but the idea is that the Supreme Court has the authority to declare an Act of Parliament unconstitutional. It still is not true in England; it's true to a large extent in Canada. In fact, I think with the new Charter of Rights they have up there in 1982, their Supreme Court is now doing work that is very similar to the United States. Before that, it was not.
LAMB: You're the 16th chief justice of the United States. Is there one earlier that you admire the most?
REHNQUIST: Oh, it has to be John Marshall. I think every one of his successors had to admire him. If you could say of any one individual that the court as an institution is the length and shadow of that individual, surely it would be John Marshall.
LAMB: What do you remember most about him in what you've read?
REHNQUIST: I remember several things about him. He was probably by no means the best educated of his colleagues and was not even thought of as an absolutely top-notch lawyer at the Virginia bar when he was appointed. As I understand, he was more engaged in politics. He had served as a captain of an artillery company with George Washington at Valley Forge in 1777 and fought in the battles of Brandywine and Monmouth. I've always had the feeling that he must have developed in that more freewheeling atmosphere than the strictly scholarly one kind of an ability to get along with other people and to persuade them. That stood him in very good stead when he was chief justice of the court. He and all of his colleagues would live in the same boarding house here in Washington during the very short term of the court.
LAMB: You point out in your book that between Chief Justice Marshall and Chief Justice Taney were, what, 64 years in the chief justice role?
LAMB: You say that during that time there were 15 different presidents.
REHNQUIST: Yes. That's truly remarkable, that the court would have been presided over by only two people at the same time that the nation as a whole was presided over by 15.
LAMB: Is that healthy?
REHNQUIST: I suppose you can say that it is desirable that public office turn over, even in the case where it's not elective; that is, you wouldn't want to have any removal proceedings available. Perhaps you should say there should be mandatory retirement even of members of the court, members of the federal judiciary. I'm sure there can be questions about whether one does as good work when you get into your -- you know, I'm 67. I'm sure that lots of things are inferior in me physically now than they were 15 years ago. I'm sure at some times maybe your mental facilities begin to fail, and they say people don't realize it themselves. But the way the system has worked, in the time that both Marshall and Taney served there was no provision for retirement. Taney held on until he was 88 because he needed the monthly paycheck. There was no way to retire. Now there are retirement provisions, and I don't think you have quite that same tendency that, you know, you've got to just keep the wolf from the door, so to speak.
LAMB: You have retired justices that have offices still in this building. Is it three or four?
REHNQUIST: We have four -- Chief Justice Burger, Justice Powell, Justice Brennan and Justice Marshall.
LAMB: As retired justices of the court, do they have any powers at all to sit?
REHNQUIST: No. Unlike judges of lower federal courts, retired justices of this court are not empowered to sit with the court. They are empowered and several of them do sit on the Federal Courts of Appeals.
LAMB: In your first book, “The Supreme Court: How It Was, How It Is”, you talk about what it was like coming here in 1952. I think you were a clerk to Justice Jackson and you walked in this great hall right out here and there were the busts of the chief justices along the wall. Did you ever think that you'd be one of them?
REHNQUIST: No, I certainly didn't. I'm sure nothing was further from my mind.
LAMB: When you became a clerk, did you think that you'd ever be a justice?
REHNQUIST: No. In fact, I remember Felix Frankfurter talking to a group of us law clerks and saying that the one thing you absolutely should never do was to try to plan to be a member of this court because there was no way you could go about it. You know, if you wanted to be president, you could start out running for precinct committeeman and then for the city council and then the state legislature and then the Congress and then work your way up that way. But there was just no way to put yourself in line to be a member of the Supreme Court. His idea was to just forget about it.
LAMB: When you look back on your own career, what did you do in your earlier life that prepared you the best to be in this job?
REHNQUIST: Certainly one of them was being a law clerk to Justice Jackson right after I got out of law school. Another thing was my three years in the Justice Department immediately before I came here. We dealt with a lot of constitutional issues and public law issues there that kind of renewed my knowledge and interest in that subject, which really had not come into play greatly in my 16 years of private practice. That was more commercial litigation and that sort of thing.
LAMB: You tell the story about how Justice Jackson came to Stanford. Would you retell that story about how you became a clerk in the first place?
REHNQUIST: Sure. In those days, the idea of flying back from Stanford, Calif., to Washington, D.C., for an interview to see if you'd be accepted as a Supreme Court law clerk was virtually unheard of for people of ordinary student means. And, you know, to take the train for several days you wouldn't do, either. So people really on the East Coast at the East Coast schools had a much better chance, if the justice wanted an interview, of getting the job just because it was manageable to come from Boston or New Haven or New York and even Chicago. So when one of Justice Jackson's previous law clerks, Phil Neal, who was then teaching at Stanford, asked me if I'd ever thought of clerking at the court, I said no I hadn't. He said, "Well, you know, I clerked for Justice Jackson and Justice Jackson is coming here to dedicate the new law school. Would you like to interview with him if he comes?" I said sure. So Justice Jackson, when he was out at Stanford, interviewed me. I mention in the book that as soon as he discovered that I was of Swedish extraction, he regaled me with tales of some of his Swedish clients in Jamestown, N.Y. I thought surely that he'd just given up on me and that he was just making me feel good. Then several months later I got a letter from him saying, "Would you like to come and be my clerk?" So I did.
LAMB: What did you learn from being a clerk that you took into your job here as a justice and then on to chief justice?
REHNQUIST: The thing I took away from being a law clerk -- the most important thing, I think, so far as my own knowledge was concerned -- was working on the petitions for certiorari that come to the court. Those are requests to the Supreme Court to review the decisions of a lower court. In my time as a law clerk in the early '50s, we probably had 1,200 or 1,300 of them a year. Now we have 5,000 of them a year. But by going over those -- dividing them with my co-clerk; Justice Jackson had two clerks -- going over 600 of those petitions and writing a memo to Justice Jackson, you really got a very good feel for the kind of business that was being transacted at that time in the federal courts, and that has stood me in good stead ever since, I think.
LAMB: If you say there are 5,000 petitions that come through the door now, how many of those end up in that courtroom in there?
REHNQUIST: Somewhere between 100 and 150. So, you know, it's not something you want to bet on. It's maybe a 2 or 2.5 percent grant rate.
LAMB: Has the job of a clerk changed from the time you were a clerk to what it is today?
REHNQUIST: Not greatly. It's impossible to describe the job of a clerk generically with great accuracy. In my day justices used their clerks differently from one another, and I think in the present day the justices use their clerks somewhat differently from one another, so you generalize at your peril. But today we do have a system called the CERT pool, "CERT" standing for "certiorari," in which first five and then six, seven and now eight of the justices pool their law clerks to write memos about the 5,000 petitions for certiorari. That did not exist when I was a law clerk. My co-clerk and I to Justice Jackson divided up 1,200 cases between ourselves and then wrote little memos to him in that way. I think Justice Stevens, who has the clerk not in the CERT pool, still operates that way.
LAMB: What's the difference between being the associate justice on the Supreme Court and being the chief justice?
REHNQUIST: Less than you might think. The chief justice presides over the sessions in open court. You call the cases and that sort of thing. But everyone questions from the bench. That is by no means a prerogative of the chief justice. The chief justice presides over the sessions of the conference where the court deliberates. Those deliberations are held in private. The chief justice goes first with his exposition of the case, explaining how he would decide it, then everybody else goes in turn. The chief justice assigns the opinions in cases in which he is in the majority -- assigns it to justices who also vote in the majority for writing an opinion to express the reasoning of the majority. Those are three things that ordinarily associate justices do not do. Then the chief justice also has administrative responsibilities. Traditionally, he's the chancellor of the Smithsonian Institution, presides over the Judicial Conference of the United States, which is the body which administers the federal judiciary, presides over the board of governors of the Federal Judicial Center, which is the body responsible for continuing legal education of the federal court family, so to speak.
LAMB: You write a lot in your first book about what it's like in that conference, and I know it's talked about a lot in the press about why there is not more debate in conference among justices as to what decisions are going to be made. How does it work? How does it work when you get a decision to make in that room and there's nobody in there but you nine justices? Is there debate at all?
REHNQUIST: The answer is there certainly is. Each justice goes in turn, expressing his view of the case and how he tentatively would plan to vote, and it goes around the table in order of seniority. Obviously someone can express their strong disagreement with a view that was expressed previously, and it goes all the way down to the end of the line that way. Then if people want to make additional points after everybody else has spoken, that is certainly done sometimes. One thing that has seemed important to me as chief justice -- and I think most of my colleagues would agree -- is that I think it's very important for every single one of the nine members of the court to have a chance to speak once on the subject before there is cross-questioning and discussion -- second bites at the apple, so to speak, on the part of more senior justices. I used to feel when I was a very junior justice that often there would be a lot of discussion and argument and re-argument before I every had a chance to open my mouth. I don't think that's desirable. I think everybody should have one crack at it before there's any kind of across-the-table discussion.
LAMB: As chief justice do you have any more power in that room to argue for something or against it than anybody else?
REHNQUIST: Absolutely not.
LAMB: Does your word carry any more weight than anybody else's?
REHNQUIST: I'm quite sure it doesn't.
LAMB: If you were to assess what you've done differently as chief justice than others before you that you know of, what would you say that is?
REHNQUIST: I think every chief justice's style of presiding over the conference is probably different. You hear people report of differences about Chief Justice Hughes, Chief Justice Stone, and my style may be a little bit different than Chief Justice Burger's. But I think that's just the nature of the beast. No two people are going to do it the same way.
LAMB: Who sets the rules for what the court does? You write a lot about the fact that over the years the court has met at different times, and oral arguments have been different lengths. Can you explain how an oral argument works today and what it was like in the past?
REHNQUIST: Let's answer your first question first. Who sets the rules? Congress, in some instances, sets the rules. It is Congress which provides that the first day of our new term shall be the first Monday in October. That's an act of Congress. So far as the amount of time allowed for oral arguments is concerned, that is a rule that we set. As I mentioned in, I believe, my first book about the court, in the arguments of some of the celebrated cases in the first part of the 19th century when Chief Justice Marshall presided, and sometimes when Chief Justice Taney presided, the court would sit for four days and would hear four counsel, two on a side, sometimes for four days, which would be 16 hours. Sometimes perhaps even for five on the same case -- the Dartmouth College case, Gibbons against Ogden, the Charles River Bridge case. That strikes us as quite strange today. But the rules allowed for unlimited argument, and the justices just didn't have all the legal materials at their beck and call when they got off the bench. They depended much more on counsel to bring them up to date on what was happening elsewhere.
Now with such an overflow of information that's no longer necessary. I think it was about in 1850 that the court limited counsel to two hours on a side, and then sometime in the latter part of the 19th century or perhaps early in the 20th century, we went to one hour on a side. I think it was one hour on a side when I was a law clerk, as I remember. I think the very first part of Chief Justice Burger's tenure, it went from one hour to half an hour on a side, with exceptions for very important and difficult cases.
LAMB: And you all just decide that internally?
LAMB: How important are the oral arguments? You talk about the fact that people wear morning clothes, the formal wear, if they represent the government and even some of the other lawyers?
REHNQUIST: Yes, it's a tradition that people from the Solicitor General's office wear formal morning coats and morning attire when they address the court or appear before the court. I'm not sure if any of the other old-time practitioners ever wore morning coats or not. I have a feeling perhaps that one or two did, but I can't really put my finger on it.
LAMB: I'm going to read a sentence from page 83 of your book Grand Inquest. "No one unfamiliar with the courtroom practice of law can fully realize the tremendous advantage that the judge has over the lawyers who appear before him and the corresponding obligation upon the judge to refrain from ridiculing or making light of the lawyers." I just bring that up because I wondered, since you used to be a lawyer, did you ever appear before the court when you were a lawyer?
REHNQUIST: Yes. I argued one case before the court when I was in the Justice Department, and I ended up absolutely soaked with sweat. It really is an ordeal.
LAMB: But when you watch as a spectator and you watch the justices interact with the attorneys, you just wonder who you look for in a lawyer and if you ever see justices ridiculing them. If you do, how do you deal with it?
REHNQUIST: Every justice has got to realize -- I'm sure we all do it very imperfectly -- that you have the right to question, and questioning will further your own thinking about the case, but that the lawyer is really at the mercy of the court. The lawyer really can't talk back to the court. A lawyer can stand up for his view of the law, but even though a judge tends to be kind of overbearing, a lawyer really is expected to more or less take it. The lesson is that whereas you are perfectly entitled to ask sharp questions and to insist on answers from the lawyer, you've got to stop short of being overbearing and just kind of lording it over a person because you're the judge and then the lawyer can't talk back to you. It's a hard line to draw.
LAMB: Can you tell when a lawyer is nervous?
REHNQUIST: I assume they're all nervous. They should be. I know how nervous I was when I argued before the court -- just like you're nervous before the start of an athletic event. Your adrenaline should be flowing and that makes you nervous.
LAMB: How important are oral arguments in the decision process?
REHNQUIST: They're quite important. I've been asked that question by numerous people and have given it some thought, and I have said to them and I say to you that I think in a large minority of cases, I leave oral argument feeling differently about some substantial issue in a case than I did when I went on the bench. That doesn't mean that I've turned around completely, but it does mean it's adjusted my thinking in a material way, and I daresay that that's probably true of a lot of my colleagues, too. The briefs give you all the background information, but some others more of a confrontation on things that the court may be uncertain about, or at oral argument, tends to define the issue perhaps a little more and to sharpen it more.
LAMB: Let me go back to these two books and ask you a general question about both of them. What do you hope to get out of publishing these two books?
REHNQUIST: You mean other than the royalties?
LAMB: Yes. By the way, do these royalties come to you or do they go somewhere else?
REHNQUIST: No, they come to me.
LAMB: You're allowed to have outside income?
REHNQUIST: Yes, outside income of royalties. Well, it's just a sense of personal satisfaction. Just like taking a good photograph or painting a picture or playing a good golf game or something, it's the thing in itself that justifies it.
LAMB: On this last book that's just out in the bookstores, you talk about the impeachment process. How many judges in history have been impeached and convicted?
REHNQUIST: I think I give a number in there as of the time the book was written.
LAMB: You do, and I can find it here if you give me just a moment.
REHNQUIST: It's in the neighborhood of half a dozen. Is that right?
LAMB: Yes. I think there have been a lot more impeached and several that have not been convicted. Maybe I can find it. There has been a rash of them, though.
REHNQUIST: There have been several in the last few years who have been convicted.
LAMB: I can go over them quick. Alcee Hastings, Walter Nixon and Judge Claiborne from Nevada are three of them that come up.
REHNQUIST: Yes. If you add those to the others, it may be a little more than half a dozen, but certainly not approaching a dozen.
LAMB: I guess the question is, do you think there have been many in history? Are you surprised that there have been the number there have been?
REHNQUIST: No. Given the failings of human nature and so forth, I'm not surprised that there have been the number that there have been. I think if the Chase impeachment had come out differently and if it had been thought permissible to impeach and remove a judge because you profoundly disagreed with his judicial views or his conduct on the bench, there probably would have been more. But I think the system is probably better operating the way it does.
LAMB: Samuel Chase was an associate justice in what years?
REHNQUIST: In 1796, and I believe he died in 1810.
LAMB: And he was impeached for what reasons?
REHNQUIST: He was impeached for basically three principal reasons. One was a charge he gave a grand jury in Baltimore in 1803 in which he criticized the congressional repeal of what was called the Judiciary Act of 1801. The second basis of his impeachment was the way he had conducted himself in the trial of a man named John Fries in Philadelphia in 1800. Fries had led an operation called Fries's Rebellion, and he was tried for treason before Chase in 1800 and convicted and sentenced to hang. John Adams pardoned Fries against the unanimous advice of his cabinet, which I have always thought did great credit to John Adams.
The third basis for Chase's impeachment was his conduct at the trial of a fellow named James Callender in Richmond who was tried under the Sedition Act. Callender was kind of a poison pen artist who had a most unappealing character, and he wrote a book called “The Prospect Before Us”, which was, you know, one of the most difficult things. Whatever the opposite of a page-turner is, that was it. It was like the pages were glued together and you could hardly bring yourself to turn the next page, it was so dull. But in the length and breadth of this thing, Calendar over and over again charged John Adams, who was then president, with being a toady to the British monarchy. Under the Sedition Act, a person could be tried for that. It's unthinkable today with our First Amendments rulings, but he was tried for that and convicted before Chase in the trial in Richmond in 1800.
LAMB: Wasn't it one of the Callender relatives that went over and beat up on a United States senator in the chamber? I remember you writing about it here, but I don't know what page it's on.
REHNQUIST: I think that was the fellow who beat up on Charles Sumner in the Senate in 1856 or 1857. I think his name was Andrew Butler from South Carolina.
LAMB: Your memory is a lot better than mine.
REHNQUIST: Well, I wrote the book.
LAMB: Talking about that, you write a lot about Alexander Hamilton, the duel. Things seemed to be a lot more violent back then than now.
REHNQUIST: I think they were. The thing for which Burr challenged Hamilton to a duel in 1804 was that Hamilton said Burr was a dangerous man and shouldn't be trusted with the governorship of New York. Think how many duels we would have today if criticism of that sort were grounds for a duel. What had happened in the case of Charles Sumner, he really vilified a senator from South Carolina who was a relative of the congressman who beat him up. But again, nowadays you just don't beat people up for that sort of thing.
LAMB: By the way, the number is -- 13 federal judges have been impeached and six have been convicted over the history of the country, as you wrote here in this book. I want to ask you the difference, though, between being impeached and being convicted.
REHNQUIST: Impeached is like being indicted. That means the House of Representatives has brought Articles of Impeachment against you before the Senate to be tried. To be convicted, the Senate would have to hear the case and vote to convict. In both the cases I wrote about, the Senate heard the evidence and voted to acquit.
LAMB: So often you write that we came up to a juncture in history and if we'd have gone one way, this country might have gone this direction, but we went the other way. I'll give you an example. This is a small example, but you point out that Alexander Hamilton at one point when he was the secretary of the Treasury went to present his views to the Congress and they turned him down. Had they accepted it, we might have had a parliamentary form of government or a question period.
REHNQUIST: We could have had a question period. You know, that's my own surmise. I think perhaps there are others who agree with it. To me, that's one of the most useful things about the parliamentary system that we don't have in this country. You see the question hour in the British parliament. I don't know if C-SPAN covers that, but certainly British public broadcasting, and the question hour in the Canadian parliament. They're really far more stimulating and impromptu than seeing people in our Congress read prepared statements on the floor. There is much more give and take.
LAMB: Why do you think we didn't go that way like the British had?
REHNQUIST: Because the leaders of the House of Representatives were afraid that Hamilton with his ability to speak and to persuade would overawe people. They wanted him just to send something up and then, you know, we'll let you know, we'll tell you what we're going to do about it. We don't want any of your oratory up here. The result was that the cabinet members became attached to the executive branch rather than to the legislative branch. They might have been much more attached if they had the question hour, I think.
LAMB: On the Samuel Chase impeachment, you say he was not convicted in the Senate.
REHNQUIST: He was not.
LAMB: And again, the reason?
REHNQUIST: Because enough of the Jeffersonian Republicans in the Senate broke ranks with the party and felt that the case against him just had not been made out, and they didn't want to make it a political thing.
LAMB: How would things have changed in this country if he had been convicted?
REHNQUIST: That's quite interesting to try to figure that out. Charles Warren in his book The History of the Supreme Court has a footnote referring to a quote from a paper in Baltimore attributing to Jefferson a statement about this time. "Now that we have got the whale, let us have a mind to the shoal." I checked out the morgue on that paper, checked out the Library of Congress, and I could not find any evidence of that footnote anywhere, so I didn't use it in my book. I didn't feel it was authenticated. But if that little note in Warren's book were correct, that suggests that Jefferson had in mind that if we get Chase, we can go after people like Marshall and just get rid of the Federalists on the Supreme Court. It would have been a very, very difficult thing to do. Chase was charged with conduct as a trial judge, not in his capacity as Supreme Court justice. I also think that Jefferson kind of lost interest in the case between the time that he wrote to his leader in the House of Representatives. It was Jefferson who instigated the Chase impeachment.
Right after Chase had charged the grand jury in Baltimore, someone wrote to Jefferson and said, "What are you going to do about this bird?" so to speak. Jefferson, I think, had a tendency to fly off the handle. He was quite impetuous, so he immediately sat down and wrote to Joseph Nicholson of Maryland who was one of his leaders in the House of Representatives, and said, "Look what's happened here. What shall be done about this? It's far better for you to think about it because I don't want to interfere." Well, of course he was interfering right then. He just wanted to be in the background. So, Jefferson started the whole ball rolling, but there is very little evidence that by the time the trial came around almost two years later, he was doing any lobbying or trying to press for any conviction of Chase.
LAMB: If you lived back in the early 1800s, would you have been a Federalist or an anti-Federalist?
REHNQUIST: I certainly would have been a Federalist, I think, when the whole scheme started out. I think Hamilton's vision of the future of the country was more realistic in many ways than was that of the Jeffersonian Democrats or Jeffersonian Republicans. But the Federalist Party became ossified. It did not change with the times, and they had no idea of expanding the national beyond the Appalachians. Jefferson had that sort of a vision -- the forerunner of manifest destiny. And so the Federalist Party just withered because it didn't react to events. I'm sure sooner or later just like many Federalists, I probably would have gone over to the Jeffersonian Republican Party, which gradually absorbed most of the Federalist Party, so that by the time Monroe was up for the presidency, a third of the Virginia dynasty, he got all of the electoral votes in the country just like George Washington had. Only one elector decided that, well, it isn't right for someone coming after Washington to get a unanimous vote in the electoral college, so he voted for someone else. But Monroe won all of them and he, in fact, got all but one. That was the era of good feeling when everybody belonged to the same party.
LAMB: You mentioned the electoral votes. Has the electoral college served us well?
REHNQUIST: I'm sure there are differences of opinion about that, and I don't really think I cover that in either of the books, and I think I'll just hold my peace on that.
LAMB: Let me ask you, because we had discussed before we started, we had ground rules on this talk about the books. You're very sensitive about talking about things today, such as cases before the court or ones that have been before the court in the recent past. What's the reason for that?
REHNQUIST: The reason is because the court traditionally disposes of matters before it by written opinion in which all the justices take a position after a deliberative process. Until that has happened, while a case is still pending, anything that a member of the court said might somehow telegraph the result of the case. It is just totally contrary to the way we do business to ever have anything come out about a case until we're ready to decide it, then the whole thing comes out. It's issued to the public. As for cases that have been decided in the recent past, I think if one were to discuss them at all, one would tend to kind of elaborate on them in a way and perhaps give a rather imperfect account of just what the case had held. Once that is committed to writing, that is the holding of the court. If I wrote the opinion, it's not my province afterwards to enlarge on it or say this is what I really meant because it's the people who join me in that opinion, who joined what I had written at that time. What I may think later about it doesn't bind them at all, so it's just far better to just leave it and not get into that subject.
LAMB: Was the court more open in discussing their decisions? Do they write these decisions from the very beginning and can you go back and find the earliest decisions somewhere in the past?
REHNQUIST: You certainly can. They're in the series of reports, now the U.S. Reporter, but earlier, Dallas and Cranch and Wheaton and people like that who were the official reporters for the court.
LAMB: And was the court always the size it is now -- nine?
REHNQUIST: No. The court started out as being six and then there have been several rather spiteful things that happened. The lame duck Federalist Congress of 1801 after Jefferson had been elected, but he wouldn't come in as president until March 4th -- he was elected by the House of Representatives in February -- the lame duck Federalist Congress lowered the membership to five in the Judiciary Act of 1801 because they wanted Jefferson to have to wait not just for one vacancy, but for two vacancies before he could get an appointment, which was just really quite spiteful. Then the act that repealed the Judiciary Act of 1801 raised the membership to seven, and then it went to six and then it went to seven in the 1830s, I believe, and to nine sometime around the 1840s, maybe 1850. I'm a little vague on those dates.
The reason the membership of the court expanded in those days was not that they needed more justices to do the work of the Supreme Court, but they needed more justices to ride circuit in a very rapidly expanding country. Finally in the 1860s, the 10th Circuit was created for California and the far West. If you had a new circuit to ride in, you had to have a circuit justice, and the circuit justice had to have a place on the Supreme Court. So for a brief time in the 1860s, the membership of the court stood at 10. Then when Andrew Johnson became president and the radicals controlled Congress, they did the same thing to him that the Federalists had done to Thomas Jefferson -- they lowered the membership on the court from 10 to eight so that he'd have to wait for two vacancies before he could fill any of them. Then as soon as Grant was elected president, who was more pleasing to the radicals, they restored the number to nine, and that's the way it's been ever since.
LAMB: Do you think the image of the court and the judiciary system in our country is what it should be?
REHNQUIST: I don't think the typical person understands as much as that person should about the way the court works and the function it performs in our government. I think the court generally has a pretty good image. I think most people think of it as doing its work reasonably well, though they understand it very imperfectly. I think particularly compared to the other branches of government, it probably doesn't suffer by comparison with them.
LAMB: What kind of rules do you put on yourself about public appearances and speaking and the things you will say about the court, and can you dictate what other judges do, how they have to live their lives?
REHNQUIST: I certainly can't dictate to other justices or other judges, and I wouldn't attempt it if I could. But I think most of us tend to follow the same pattern. We do not get engaged in any sort of political controversy. I mean, it'd be quite unthinkable for a member of this court, or I think for a federal judge generally to say, "I favor so-and-so in the next presidential election or in the senatorial election." That simply isn't done.
LAMB: That wasn't always the case though, was it?
REHNQUIST: No. In the case of Samuel Chase, for example, the August session of the Supreme Court of 1800 had to be postponed for several days. Chase hadn't arrived. He was stumping the state of Maryland on behalf of John Adams's reelection as president. Now, that would be absolutely unthinkable today. It created a great deal of ill will in Chase's time, and it just about ended with Chase, I think.
LAMB: I interrupted you. You were talking about the decorum of you yourself as chief justice. How far do you do? You publish the books. We don't see much of you on television. The court itself is not on television. Is this something you feel strongly about or will this change over time, do you think?
REHNQUIST: Well, the fact that I felt strongly about something wouldn't mean that it wouldn't change over time, certainly. I think the majority of the court every time we've taken the matter up about television, whether it's been under Chief Justice Burger or under me, has felt that they did not want to further expand coverage of the court to television. We're very heavily covered by the print media now. Certainly the people who want radio and television coverage have good arguments on their side, but we simply have decided to leave matters as they were.
LAMB: I don't know if you want to comment on this, but recently we watched a lot of activity in this country about justices being approved by the Senate and that whole institution of confirmation hearings. That kind of thing back in the days you write about couldn't have been seen. You even write in your book that you can't tell what the faces of people were like in those days when you look at the transcripts. What do you think of the process now of confirming justices to this court?
REHNQUIST: I think I'd rather not comment on that.
LAMB: Why? Is it that you do not make these statements in public?
REHNQUIST: No, it's just my own personal decision. If one of my colleagues were asked that question and commented at length, I would not think that person did anything improper. That's just a personal decision. I just don't believe I want to comment on it.
LAMB: Back to the Andrew Johnson impeachment and conviction, what would have been different in the country had he been convicted?
REHNQUIST: As I say in the book, the president's tenure of office would been less secure, marginally less secure. I don't think there would have been a lot more impeachments. But the congressional authority to impeach would have acted more like a sword of Damocles designed not to fall, but to hang and to threaten the president. I think that any time that a president of one party confronted a Congress controlled by large majorities by the opposite party, it wouldn't be just the usual weapons with which Congress and the president fence with one another -- vetoes and overrides and insertions in appropriation bills and withholding of appropriated funds. The president and Congress have been fencing with one another for a long time with those various weapons. But Congress would then have an additional weapon in its arsenal, which would be the threat of impeachment.
You can tell from the publicity that the newspapers of the day gave to the Johnson impeachment that nothing much happened in the presidency between the time that Johnson was impeached in February and the time he was acquitted in May. The news was basically just about the impeachment trial. Not that ordinary housekeeping didn't come. But it just really significantly impairs, if it doesn't cripple a president, to be the subject of an impeachment trial. It also takes up a tremendous amount of time on the part of Congress so that Congress is not able to do very much. It's just a very time-consuming procedure.
LAMB: How much of your research for your book was focused on what the press said in the 1800s?
REHNQUIST: Not a large part, but I did try to get quotes from the papers which came out right after Chase was acquitted in 1805, and I have full-page facsimiles of the newspaper headlines that came out both at the time that Johnson was impeached and after he was acquitted because it gives you some idea of the furor in the country at the time -- how really concerned everybody was with it.
LAMB: What do you think of the way the press covers the court today?
REHNQUIST: I think by and large they do a pretty good job.
LAMB: If you're a citizen watching the court's activities and you don't like what you see in the press, where could they go to get another version of it? Can they get the actual written . . .
REHNQUIST: Oh, yes. Copies of the written opinions are available at the Public Information Office. An ordinary person can get those, can't they, Toni [Toni House, the court's public information officer]? If you really wanted to read an opinion, you could go the Public Information Office and get a copy of the opinion, which, of course, is the best.
LAMB: We're about out of time. Do you like this job?
REHNQUIST: Yes, I do. I wouldn't want to hold it forever, but I've enjoyed it a great deal during the time I've had it.
LAMB: Is it what you thought it would be, looking at it from the associate justice point of view? You've been on the Court since '71?
LAMB: And you became Chief Justice in '86?
REHNQUIST: Yes. I don't think I fully appreciated the extracurricular things the chief justice was expected to do when I was an associate justice. But those give you another window on the world. They're very interesting.
LAMB: Do you notice people treating you differently as a person?
REHNQUIST: Oh, I think I'm probably more visible. I think people probably think the chief justice has more authority than he does, and, therefore, that he is presumably more important than the other members of the court. That isn't really true, but I think a lot of people maybe think it's true.
LAMB: Have you noticed since you became a justice that people treated you
differently than when you were just working in the Justice Department as a lawyer?
REHNQUIST: Oh, sure. You know, nobody ever asked me to speak at public meetings when I was a lawyer in Phoenix except the Rotary Club or something like that. People weren't interested in my views particularly. In Justice, they got a little more interested because I was an assistant attorney general, and then when I became a member of the court, they became very interested. I'm sure it had nothing to do with the inner me or anything. It was just the position I occupied.
LAMB: To generalists, what is the thing that they are surprised the most about once they get to study the court and look at it a little closer? What are the misconceptions?
REHNQUIST: I think one misconception is that the court is a political body -- I mean in the sense of Republicans vs. Democrats -- that Republican appointees kind of favor the Republican interests and Democratic appointees tend to favor the Democratic Party. I can say just without any qualification whatever that never in my time, any time, have I ever sensed that any of my colleagues -- and I like to think that I am the same way -- ever voted in a way by reason of how the ruling would affect a political party. Now, there are differences in judicial philosophy, and that happens all the time, but that is not the same thing as is being political in the partisan political sense.
LAMB: William H. Rehnquist, author of the books “Grand Inquest” and also “The Supreme Court: How It Was and How It Is”, in addition to being Chief Justice of the United States, thank you very much for joining us.
REHNQUIST: I'm happy to be here.
Copyright National Cable Satellite Corporation 1992. Personal, noncommercial use of this transcript is permitted. No commercial, political or other use may be made of this transcript without the express permission of National Cable Satellite Corporation.