Booknotes

DAVID SAVAGE, AUTHOR, "TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME COURT": Well, I think the court's undergone something of a historical transformation in the last five years -- the five years I was lucky enough to be covering the court. I think it's really similar to what happened in the late '30s. You know, Franklin Roosevelt had been frustrated by the conservative court, the nine old men, and within a few years Roosevelt was able to pack the court, change the court, through the traditional appointments process. The older conservatives retired, the younger liberals came on the court, and the court changed entirely from a court that had been a protector of big business to a court that was increasingly the protector of individual rights and civil rights for minorities, essentially the court that we've come to know since World War II.

I really think the process is now working in reverse and has changed fairly quickly in the last few years. In the '70s and early '80s it was a very balanced court, with four liberals and four conservatives and Lewis Powell right in the middle. A lot of the fairly liberal decisions of this court came in the mid-'70s -- the Roe v. Wade, upholding affirmative action in Bakke. As you know, Reagan was frustrated through much of his term with the Supreme Court. They made no progress on issues like abortion or school prayer. And then in 1986 when Burger stepped down, he elevated Rehnquist. Scalia was added to the court, and then Anthony Kennedy in 1988 and now David Souter and Clarence Thomas. So now it's a court that has about essentially seven conservative members.

The two liberals on the court are John Paul Stevens and Harry Blackmun, two Midwesterner Republicans. They're the left wing of this current court. So, one of the reasons to write the book is to let people know something about [the court] and to give them a close-up look at an institution that's not particularly well known, partly because of no television cameras. They don't do interviews, they don't allow C-SPAN'S cameras in to televise the court, or they don't come on these programs and discuss "why we made the decisions we made." On the one hand, I wanted to sort of shed some light on this institution, and secondarily I think it's because it's undergoing something of a momentous shift.

SAVAGE: I certainly do.

SAVAGE: No, I am not.

SAVAGE: Well, I got the opportunity to cover this court. I had been an education writer for the paper. I had written a little bit about the court in the late '70s, mostly on education cases -- affirmative action, and a number of the cases came out of schools or universities. I was always a fan of the court, interested in the court. My view is that it's one of the great beats for a newspaper reporter. As I mentioned, unlike the White House or politics or Congress, to some degree it's not an institution that's all driven by television or geared to television. We get great cases, sort of legal disputes, that have split the courts across the country. They come up to the Supreme Court, we get all these briefs on both sides, good lawyers on both sides, and the court also writes a 30-page opinion saying, "Here is what we are deciding and here's why we are deciding it." I find it's a terrific beat for a newspaper reporter. It's sort of a paper-and-pencil beat.

SAVAGE: I think the first argument was the Bakke case in 1978.

SAVAGE: To cover it.

SAVAGE: Yes, that's correct.

SAVAGE: It's something like going into a great cathedral or going into a church. There are like pews, and everybody sits quietly and waits for the justices to enter. It has that high ceiling, and it has sort of an august sense to it. You feel like you're in a cathedral -- a cathedral of the law. I was very impressed then, and continue to be, to watch the justices hear an argument and debate a case. I go to a lot of hearings in the Senate or the House, and C-SPAN certainly covers those and has given your viewers some sense of what those are like, and frequently you hear people delivering testimony and the senators sort of rock back in their seats and many of them pay little attention. When they have a question to ask, an aide slips them the question.

The justices, by contrast, you could tell they have read all the briefs, they're really up on the case, and even if it's a fine point of tax law or whatever, three or four of them will be up on the edges of their seats the whole argument, batting the issue back and forth with the attorney. So I was also impressed from the beginning that you could tell these people were really involved in their work and really up on the cases that were being argued. I found it fascinating.

SAVAGE: You mean the Rehnquist-Bork crowd.

SAVAGE: That's evidently been a long-running institution. They get together once a month and play poker. It's some of the prominent conservative judges. Scalia has been a regular member. Bork shows up on occasion. People like Bill Bennett are occasional participants.

SAVAGE: I think they move it around to different houses. Each of them gets it every couple of months. I've never been invited, by the way, so you're getting a second- and third-hand account of this.

SAVAGE: People talk about it. Rehnquist talks about it, and Scalia will talk about it.

SAVAGE: I know it's been a number of years. I think it's just sort of their fun night out to talk about something other than the law and get together with old friends.

SAVAGE: Usually the court hears cases on Monday, Tuesday and Wednesday, and they hear four cases. They have an hour-long argument. Each side gets a half hour. The chief justice cuts you off in the middle of the sentence if you go beyond your half hour. So they do four a day for those three days, so 12 in a week.

SAVAGE: Well, they meet from October -- they have arguments through the end of April, and essentially they're doing it just two weeks of each month. They tend to hear 12 cases one week, 12 cases the next, and then essentially they spend the next two weeks working on opinions and preparing for the next 12. I should add, they hear these arguments on, as I say, Monday, Tuesday and Wednesday, and then they get together Friday morning in the conference room, behind closed doors -- no one is there other than the nine justices -- and vote on those cases. However it comes out, the majority then goes back. One person is assigned to write the opinion, and as many dissenters can write as they choose. So they spend an awful lot of time working in their chambers, writing opinions. I frequently hear people say, "You mean the court's not in session this week," and that simply means that they are not on the bench or not handing out opinions. But they're very busy up there, working on the opinions in the cases they've already heard.

SAVAGE: Sure. There are about 100 seats. People line up outside the court. I have to say, everybody tends to come on Monday morning at 10, and my impression is the best time to get in is, say, Tuesday afternoon or Wednesday afternoon. Everyone seems to assume you have to come right at 10, which is when the first argument begins. But there will be 100 or 200 people in line, so not all those people get in.

SAVAGE: I don't know. I think they have some people come in for a relatively short period, say five minutes, and others can stay up to a half hour.

SAVAGE: I'm not sure whether they'll let you stay through several arguments. I know you can stay through one.

SAVAGE: They have a few pews up on the left side for reporters, so I can go up and listen to the arguments.

SAVAGE: Only the oral argument?

SAVAGE: He's usually quiet in the oral arguments. He cuts off lawyers if they start to rhapsodize and give a lecture. He's generally a courteous fellow. He's a very nice guy. Rehnquist is not well-known to the general public, but I find him one of the really pleasant, sort of down-to-earth people you could ever meet. The assumption is, if you're going to meet somebody who is the chief justice of the United States he would be something of a haughty or a pompous person, and Rehnquist is just the most ordinary, pleasant fellow you could ever meet -- at least I've always found him to be that way.

SAVAGE: He was appointed by Nixon in the fall of 1971. He actually took his seat in January of 1972, so it's been 20 years now that he's been up there.

SAVAGE: The fall of '86.

SAVAGE: She's a tough questioner -- very direct, very lawyerly. She's not a feminist or she doesn't have a particularly female approach to handling cases. She's the one who usually asks the first tough question. Frequently lawyers will be three sentences into their argument, and O'Connor will ask a question that knocks a hole right in the middle of their case. She's always well prepared; a very sharp questioner.

SAVAGE: She seems to be doing quite fine. She underwent some treatment several years ago, but seems to be entirely healthy.

SAVAGE: He's a more mild-mannered, quiet person. I think Kennedy has suffered a little bit from the fact that he seemed to be in the shadow of Rehnquist and Scalia and, to some degree Sandra O'Connor, the more dominant conservatives on the court. He has a sort of professorial demeanor and asks sort of involved questions. He doesn't go after the attorneys, like "I'm going to bite your leg off," like Scalia will, but asks these more professorial questions.

SAVAGE: Scalia will occasionally provoke some laughter. Rehnquist occasionally gets into sarcasm now and then.

SAVAGE: He's the most aggressive questioner, the person who goes after the attorneys on both sides. I remember somebody wrote a couple of years ago if your cameras and others were televising the court that Nino Scalia would be a household word around the country because he's quick-witted, he's pointed, he can be funny on the bench, he gets angry and outraged at some response. You know, he'll put his hand on his head and be just sort of exasperated by an answer. He's the most lively questioner on the court. If you're on the wrong side, from his point of view, he will work them over.

SAVAGE: Oh, sure. When any one of them, even if they almost whisper into microphone, the microphones are turned up and it will boom throughout the room.

SAVAGE: They interrupt the attorneys. They try not to interrupt each other. The idea is that if I'm the attorney, I'm speaking to you, Justice Lamb. No, there is not a lot of back and forth among the justices, interrupting each other's questions.

SAVAGE: It's Justice. I think they avoided the Mr. because of Justice O'Connor coming along. It complicated what had always been a Mr. Justice So-and-So, so they just go to straight Justice.

SAVAGE: Souter is extremely impressive asking questions. Your viewers, I'm sure, saw him during the confirmation hearing in the Senate in the fall of 1990. He has that distinctive New England accent. He's not one who jumps on the attorneys and gets in the first question, but toward the latter half of an argument he will ask a quite thoughtful, involved question that usually goes to the heart of the issue. He's got a very logical mind. I'm always impressed with Souter's questions. I might say, he is not so good writing opinions. He tends to write sort of muddy and mushy opinions, but speaking or asking questions he is very penetrating and direct.

SAVAGE: Sure. I was able to talk to most of them.

SAVAGE: No. I could go by their chambers or go out to lunch with them or something like that. What I found it most useful for was to talk a little bit about what I was planning to write or planning to say, and they could set me straight on a few points or elaborate on something. None of them want to do on-the- record interviews.

SAVAGE: Some is that, and some I've talked to clerks or other people who said, you know, "Rehnquist always had this particular view on that subject; he never agreed with this; he favored that." And some of the contacts, I'll say, "Rehnquist had believed this," and some of it is because of something he's written or said. I do get to hear them a lot on the bench, and one of the good things about the job is you read these people's views as to how they decide cases year after year. If I gave you 100 tough issues and said, "Write me 30 pages on your view on that issue," after a while I'd get a pretty good sense of your views and what you think.

SAVAGE: Yes, some of that I used.

SAVAGE: No.

SAVAGE: I think the general understanding was that it was a background interview and I wasn't going to quote them. I certainly didn't want to pin them down to saying anything that would be embarrassing, but I wanted to be able to use some sense of what they said. In other words, again, if you told me a whole series of things and said, "I don't want to be quoted on this," but the understanding is that I could say that in some sense Brian Lamb believes this or feels that is true or whatever.

SAVAGE: That's a good question. I think they believe that their job is done best if they are sort of removed from the public and the public arena and the press; that they are really these nine magisterial figures in black robes who interpret the Constitution and hand down decisions that are just that; they're not Bill Rehnquist's personal view and Nino Scalia's view; that they are legal interpretations of the Constitution. I think they thought if they came on this program or others and spouted off on a whole series of either legal questions or views of their colleagues or whatever, that that would change the public's view of them and that it might change the view of the Supreme Court. That's how I best understand it -- that they think it's better for the court and better for the system of justice if they are somewhat removed from the give-and-take of the political arena.

SAVAGE: He says almost nothing. He will rarely ask any question, and when it is, it's usually a very minor point. Some attorney will be talking about some criminal case and he'll ask, "Where is that town located? Is that near Minneapolis?" He asks little questions like that. He's not an active questioner on the bench.

SAVAGE: He's terrific. He and Scalia, I think, are the really quick-witted people who engage the attorneys. Stevens, I wrote in the book, is the one justice who can pull a string and unravel the fabric of an attorney's argument right before his eyes. For pure brain power, I think Stevens is at the top in this court.

SAVAGE: He's a tough, gruff guy. I sometimes think he seems to go around with his football helmet still on. He occasionally will ask a gruff question of the attorneys -- not a long, philosophical question but sort of a direct jab, and he wants a yes-or-no answer. He doesn't want a long explanation. He'll say, "Is it yes or no? Yes or no!"

SAVAGE: Right. JFK picked him something like April 3 of '62. He went up to the Senate, had like a one-hour hearing, was approved on a voice vote and was on the court within two weeks, just to show you how things have changed in 30 years. He just celebrated his 30th year on the court. He's 75 years old.

SAVAGE: He appears to be in good shape for 75 years old. You don't want to shake hands with him; he still has a crusher handshake. But it is the case that when you see him walking in the halls, he walks with sort of a stoop. He's had a sore back for years, so he looks old in that sense. I don't think he'd want to run the football anymore.

SAVAGE: He, too, says almost nothing. He sits back. You know, he came in both under a cloud and a month into the term. I don't think Thomas was as grounded in the law as some of his colleagues and other people who have come up to the court. So he's done a lot of studying and a lot of reading, but he does not participate too much in the oral arguments. I think he really wants to bide his time. I think he'd prefer that we didn't write about him and sort of ignored him for a couple of years. I think he'd like to keep a low profile for a few years, if that's possible.

SAVAGE: I think you'd come away impressed, as I said, with how hard-working these people are. You'll go into the court and they'll be arguing about whether Section 16.10 as a bankruptcy count requires that there be a 90-day waiting period or a 160-day waiting period. You know, it will be frequently an arcane, technical matter. My first reaction, if I were coming in off the street, would think, my goodness, how do these people get interested and involved in those kind of narrow questions? I understand Roe v. Wade and affirmative action or flag-burning, but even the narrow questions of some technical aspect of tax law or labor law or whatever, these people are very involved. They'll say, "But in 1967 we said this and in 1976 we said that. Now, how do we view this case?" They'll say to the lawyers, "Give us a reason as to why we should come out your way in this case when we said these two things before." You quickly get to sense that these people are really immersed in their business.

SAVAGE: I think Scalia, probably -- maybe Justice O'Connor -- but Scalia. I mentioned in the book there was one evening we saw him leaving the court with his tuxedo on, and somebody commented on his dress. He said, "Oh, yes, esteemed jurist by day, man-about-town at night." I think that seems to be his view of himself. But Justice O'Connor is somebody who gets out quite a bit, too.

SAVAGE: I think Thomas is close to that category. He and his wife, as I understand, are building a new house even further out of town. I think they sort or keep to themselves. And I think Harry Blackmun is not particularly a party animal, although at 83 years old I suppose most people are not.

SAVAGE: He is definitely a hard-worker, a guy who spends a lot of time at the court and takes work home. He has an apartment here in D.C. and likes to go out running at night or whatever. From what people tell me and from what he says, he works all day, and his evening consists of getting home at 9:00 and going out and running and then coming home and reading some more and going to bed. So in that sense it's something of a reclusive life. It's not totally reclusive, though. I mean, he does get invitations from George Bush to go to plays or to go to ball games or whatever. He does have some social life.

SAVAGE: Oh, he told us that. We had a little reception for him at the court, and he was quite amused, first of all, at this sort of a tongue-in-cheek piece about David Souter as being Washington's ideal eligible bachelor. He said, "You know, I received 275 phone calls." Then he said, "I was quite distressed to find, however, that they didn't keep any of the numbers." He was just amused, particularly his first couple of months here in Washington. It was such a transition to be essentially an unknown judge in a small New Hampshire town, to being the kind of person where you walk down the street and people know who you are. I think he's been pleased recently that the anonymity is returning. He tells the story about going back up to Concord and going to a grocery store and an old man seeing him in the parking lot and saying, "Hey, you look like that lawyer fellow." Souter said, "Well, I am." The guy looked at him again and said, "The hell you are," and just turned around and walked away. So Souter considers that a sign of good news that his anonymity is returning.

SAVAGE: Yes, that was not long after he was confirmed. The one time when you are really well-known as a Supreme Court justice is those weeks when you are before the Senate being confirmed and just afterwards. Justice Kennedy likes to go out walking around the court and came out on the steps one day. A young couple came over and said, "Can we snap a photo?" His first thought was, of course, they wanted to take his photo on the steps. Of course, they had no idea who he was. They wanted him to take a snapshot of them in front of the court.

I also cited the story of John Paul Stevens. You know, he looks like a Supreme Court justice, in my view, with the little bow tie and the white hair. He said he occasionally will go out on the steps in the afternoon to stand in the sun, and the tourists will stand at the bottom of the steps and wave him to please step aside. They want to take a picture of the front of the building, and they don't want to get him in the middle, sort of messing up the photo. Once again, even standing on the steps of the Supreme Court, the general public has no idea who these people are.

SAVAGE: Well, Blackmun will be 84 in November at the time of the election, so he's the oldest member of the court. He's has some prostate trouble before. I think he's generally viewed as the person now who's in perhaps the weakest health. But you never know. The author of Roe v. Wade; I mean, the common speculation is as long as Roe is still there and can be defended, Blackmun is going to stay and defend it. Byron White is 75 in June. You know, he was two weeks younger than John F. Kennedy -- 75 years old now. John Paul Stevens is 72 this spring. He's had some prostate trouble, but he strikes me as a particularly buoyant fellow. To see him walk or be around him, he doesn't look like somebody who's 70 years old. He gets up early and works hard. He flies down to Florida where he has a condominium and plays a lot of tennis. He's quite an active, energetic person.

SAVAGE: Right.

SAVAGE: Yes. They need to be there to vote, and they need to be there to hear arguments. But, I think if you're assigned an opinion or whatever, you can go to Florida or wherever you want and do your work. The announcements of the opinions on the bench are merely a ceremonial occasion. You don't have to be there for that.

SAVAGE: Yes. She, I guess, would be 62 this year. She was born in 1930. She says she's in quite good health. She did have the breast cancer operation and underwent some treatment, but is said to be back playing golf and tennis and is, as I say, a very hard worker. If you go up there on Saturday, she is going to be at the building with her clerks going over cases. I'm always amused by that. I can get in on the weekends and go down to the press room and read briefs, and if you go out in the halls you almost invariably see one of the justices looking for a vending machine or whatever. They're up there -- even when they're 80-some years old -- still up there on Saturdays and Sundays working.

SAVAGE: They're all the relative kids on the court. Thomas must be 44, and Souter, Scalia and Kennedy are in their early to mid-50s and in fine health. The presumption is that they're going to be there until the year 2010 or the year 2020. That's when they'll turn 80 years old, so they've got decades to go.

SAVAGE: Myself and the editor. I think there can be a lot of debate about where the court should be. You know, if you use the notion of the swinging pendulum, somebody can say, "Well, hasn't the court come back from being far left to being in the middle?" and I'm not going to argue with that. But I think unquestionably the court has turned to the right in the last few years. I tried to make this book not a sermon on "here's what they've done and here is why this is right or wrong." I think with all the big issues and the cases I tried to explain, really, here's what the arguments were. The conservative members of the court said this, the liberals have this view, and here's how a case came out.

I really tried to do my best to explain this for a reader who might read about the court in headlines or something like that -- have an interest in it, but not really have a way to read in some more depth about what the cases were about or what these people are like. And so, as I say, I did not want to write a book that says here is the right way to think about all these issues and here is my view about it and so on. I suppose any reader can judge for themselves, but I tried as best I could to present both sides of all the cases and really let the readers decide. You know, if I heard these arguments and I was presented with the law and I was presented with these facts, how would I have decided that case? Then you can see Justice A decided it this way, and Justice B decided it that way. You can see for yourself -- would I have gone this way or that way on this type of case?

SAVAGE: I think it gets more interesting for me all the time because I find that I learn a lot about a particular area in law, whether it's anti-trust law or some version of the free speech law or the free press that I had some sense of before, but I didn't really understand it until we went through a couple of big cases on that. So, I feel like I know the areas better. It's also a great place to learn a lot. The good thing about covering the Supreme Court if you're not a lawyer is that the briefs are good. You get lower court opinions. They have all the facts in a case, and if you're willing to put in the time, you can read enough so that you really do understand, or at least you seem to understand, what this case is about and what it means.

SAVAGE: This is my first real book. When I was an education reporter I did some smaller books that were strictly for an education audience.

SAVAGE: Well, that I was able to do it on Saturdays and Sundays in my spare time. This was my weekend project during 1991, and I had to turn in 130,000 or 140,000 words and had to do it in a year. I suppose my first concern was, am I going to be able to do this in my spare time. I didn't take a leave or anything from the paper. I didn't really want to take any time away from my job at the newspaper, and so the thing I suppose that surprised me is that I was able to do it and keep my marriage and family intact and not stay up all night working. I was able to do it as a Saturday and Sunday endeavor.

SAVAGE: I took copies up to them, and I have not heard anything from them. But I just took them up, so I don't assume that they're going to throw down all their other work this month and read this book and write me their reactions. I'll obviously look forward to hearing what comments, if any, they have.

SAVAGE: In McKeesport, Pennsylvania, which is south of Pittsburgh.

SAVAGE: I had one sister. My parents are both still alive and still in McKeesport and fans of C-SPAN. My father was an engineer, not a lawyer. No journalists in the family and no lawyers, so I don't know what that means.

SAVAGE: Just in college. Writing was the one thing I liked to do and did reasonably well. I was not on any school paper or whatever. Plus, I was interested in public affairs and politics.

SAVAGE: I went to the University of North Carolina and to Northwestern to the graduate school of journalism.

SAVAGE: I was covering education here in the late '70s, as I mentioned, and I had written some pieces for the Post. They were looking for an education writer and I wanted to work for a real newspaper and the L.A. Times was nice enough to hire me to go out there and cover education. So I was out in California for five years.

SAVAGE: Not hard. My editors are quite interested in the court. I think they believe that the Supreme Court is the institution that draws the line between the powers of the government and the rights of individuals. Their decisions last in a way that few other decisions of any government institution do. They really do take on sort of fundamental issues. I've found my paper has a great interest in the court, not only what the court has decided but why -- what did the majority say, what did the dissenters say, what does this decision mean for the states or for individuals, what's the scope of it, how does it compare with what the court said during its more liberal era? I find there's a lot of interest in the Supreme Court. I can't gauge the reaction around the country.

SAVAGE: That's a tough question. I covered Rehnquist and Scalia, because they were in '86. The Kennedy nomination and confirmation was interesting, but not strictly because of Anthony Kennedy. It was because it was that huge fight during the summer of '87 of first Robert Bork and then Doug Ginsberg and then Anthony Kennedy. I really think that was the key confirmation fight, because the court really had been split four to four. That's why there was such a fight over Robert Bork, because all of the liberal groups and the civil rights groups knew that that ninth seat would really tip the balance of the court one way or another, and that's why they went so far out to go after Bork. I thought that was fascinating, but then I also thought Rehnquist and Scalia was an interesting thing because it was not known by the public at all. I mean, this was a fairly momentous decision and no one knew it was coming until the day. I think it was about 2:00 in the afternoon one day in June. President Reagan walked into the press room and had Warren Burger with him and William Rehnquist and Nino Scalia. It was entirely kept under wraps in the Reagan White House.

Rehnquist had been known for a long time as the conservative's favorite person on the Supreme Court, the sort of "Lone Ranger" of the court of the Burger years, the person who staked out the positions on the right. Attorney General Meese, Brad Reynolds and the Justice Department and the people in the Reagan White House were really frustrated that the Supreme Court had blocked so much of what they wanted to do, and then they really were able to spring this something of a surprise of getting two really powerful conservatives; moving Rehnquist up to being the chief justice and the dominant figure and getting somebody as powerful as Scalia to fill that ninth seat. So I think that will be seen in retrospect in history as a real turning point for the Supreme Court that no one anticipated coming at that time.

SAVAGE: The spring of '86. The two people that I talked about were Brad Reynolds, William Bradford Reynolds, who was Meese's top deputy, and another one of his close friends and allies, Chuck Cooper. Cooper had been a clerk for Rehnquist in the late '70s, was a top official in the Justice Department and was the one person along with Brad Reynolds who said that Bill Rehnquist was the ideal chief justice for a Reagan court. There had been something of a tradition of looking outside the court, not picking one of the sitting justices to move up to chief, but I think Chuck Cooper and Brad Reynolds were the key people in picking Rehnquist to be chief.

SAVAGE: Both of them are working at law firms here in town.

SAVAGE: Yes.

SAVAGE: Well, I think he's working at one of the foundations in town -- is it the Heritage Foundation? -- and still does a lot of speaking and some writing, but is not working as a private attorney in town.

SAVAGE: Rehnquist had an interesting background because he was a top student at Stanford Law School in the early '50s, and Robert Jackson, a Roosevelt appointee to the court, came out to Stanford and a professor introduced Rehnquist to him. Jackson, it turned out, needed a clerk during the middle term in 1952, coming in January, and Rehnquist was graduating early. So, he asked Rehnquist to come back to Washington. He drove a Studebaker across the country and got here in the winter of 1952. He had a year and a half here as a clerk in 1952 and 1953, the height of the McCarthy era, the time of the steel seizure case. The Brown v. Board of Education case was coming up to the court. Rehnquist had actually written memos on that subject.

One way you can sort of get into the court and really get to know a lot about it is getting one of the clerkships coming out of law school. I think most of the clerks will tell you that from then on out for the rest of their lives they are obsessively interested in the Supreme Court and its workings because essentially their first job out of school they saw it up close. They spend a year or a year and a half or sometimes two years being the person who reads all the briefs and the appeals that come in and writing memos from the justices and getting a sense of the interplay of the court.

Rehnquist, after his clerkship ran out in '53, became a lawyer in Phoenix and was out in Phoenix for 15 or 16 years. He was active in the Barry Goldwater campaign, but, of course, as you know, Goldwater lost. He had worked closely with Richard Kleindienst, who then came into the Nixon Justice Department in 1969, and he recommended Rehnquist, so he came to Washington in the Nixon administration in 1969. When there were two vacancies in 1971, President Nixon, I think, was interested in somebody who was a smart, conservative lawyer, not an Eastern establishment type, and Rehnquist fit the bill. He was not particularly well-known, but certainly was a brilliant thinker, extremely conservative, relatively young, was not well-known. At that time Nixon picked both Lewis Powell, who was well-known as a Richmond attorney and a former president of the American Bar Association, and Rehnquist. Byron White also served as a clerk, and John Paul Stevens served as a clerk in the '40s.

SAVAGE: Let me think. Byron White went into the Justice Department and then directly to the Supreme Court. Rehnquist was in the Justice Department and then directly to the Supreme Court. Sandra O'Connor had been a state court judge. David Souter was a state court judge. They have something of a similar background. Clarence Thomas spent a year on the appeals court. Nino Scalia spent several years on the appeals court here. Most of them had at least a little judicial experience, but not all.

SAVAGE: Yes. I think we're about evenly divided between Harvard Law School and Stanford Law School. I think it's four-three or whatever, and I think Stanford is creeping up.

SAVAGE: Yes.

SAVAGE: I think any big library or law library has the Supreme Court opinions on file.

SAVAGE: I think Scalia, particularly his dissents. Scalia, I think, is the best writer -- the person who sort of hammers home his points the hardest and in clear language and is not given to a lot of legalism. I think he's the best writer now. Rehnquist was terrific during the '70s, particularly as the dissenter in saying what's wrong with the more liberal court. A lot of them are best in dissents, because when you're writing a majority opinion -- you have to remember this is a committee of nine lawyers, and majority opinions are, to some degree, committee opinions, and you know the old adage about committees.

You have to write in a way that the others are going to go along with, and if they don't like something, they'll say, "I'll only sign your opinion if you change the following three sentences," so you tend to write a little mushier than you would if you're writing for yourself. But if you're dissenting and you think the majority of your colleagues are dead wrong, that's the time you can sit down behind the computer and pound out a dissent and really tell them what you think. Frequently the most interesting writing and the most pointed writing is in the dissents.

SAVAGE: I think all of them have help from their clerks, and I think all of them do some of their writing. I think Thurgood Marshall towards the end really did none, and partly because of a physical problem. He had bad eyesight. He just found it very difficult even to see the pages. I think Scalia and Stevens probably do the most writing of any of the justices, but you have to remember the majority opinion -- again, let's say if it's 30 pages long, the first four or five pages may be just summarizing the facts of the case and what the lower courts have said. So, if you are Justice Brian Lamb, you can say to yourself, "Well, I'm going to write the majority opinion that decides this case, but I'll let my clerks handle those first five pages just laying out the facts. I'll obviously read over it and make sure it says what I want to say, but I'm going to write the pages that are the heart of what we're ruling." So, I think a lot of the justices do that. They want to be very clear about the holding of the court. What is it we're deciding in this court in this case? What are we saying to lower courts? So, they'll spend a lot of time writing that and let the clerks flesh out the other parts of the opinion. A lot of them are just adding citations from other cases, and the clerks can fill in that sort of material.

SAVAGE: They're allowed four. Some of them have fewer. Rehnquist likes to play doubles with his clerks and only has three, so they have a nice doubles team. But most of them have four.

SAVAGE: Yes, I shouldn't push that as an absolute truism. It's sort of the joke among the other clerks that with Rehnquist's clerks you have to be a smart lawyer, but you also need to be at least passable on the tennis court.

SAVAGE: I see them in the cafeteria, and that's not a very scientific way to do it. I think there is an increasing number of women clerks. Some blacks and Hispanics, but relatively few. If you take nine justices times four, there may be one black law clerk a term, but mostly white males.

SAVAGE: No. You can't sue them for sex discrimination or something for not hiring enough female clerks.

SAVAGE: I think each justice is different. Rehnquist, for example, likes to get a variety of people with different backgrounds. Some justices are known for only hiring Harvard, Yale, Stanford graduates. I think it very much differs by justice. Law students send in resumes or they get recommendations from lower court judges. Frequently now, they've spent a year on a lower court with a district judge or an appeals court judge, and that district judge then can recommend them. So, a lot of them come through recommendations from other judges that one of the Supreme Court justices knows and likes and can rely on.

SAVAGE: I wrote the book in a chronological way. I really started in 1986 and laid out the scene of Rehnquist and Scalia's coming down the steps. It's now the Rehnquist court on the day in September of '86 when Rehnquist became chief. And then I sort of walk the reader through the five years, up through 1991 and the Clarence Thomas nomination. What I think I tried to show was, again, I would take the four or five big issues before the court, say, in 1986 and 1987, and give some sense of how the court argued these cases, the reaction of the justices, the back-and-forth, and then in the spring how these cases came out. I made the point in '86-'87 that very little happened. William Brennan, the long- time liberal leader of the court, was able to win a lot of the big civil rights cases and the religion cases, and nothing much changed even though Scalia and Rehnquist had come to the court. Well, then on the last day of the 1987 term, Lewis Powell stepped down, and that's what set off the battle over Robert Bork.

Then I think I tried to show in the terms that followed after how the court really had changed. Suddenly there were five votes. I mean, Brennan always used that line with his new clerks, "What's the most important rule at the Supreme Court?" The law graduates would look at him and come up with a few legal rules, and Brennan would hold up his hand and say, "It's the rule of five. It takes five votes to do anything at the Supreme Court." Brennan was a master for years at finding five votes for liberal positions. Once Justice Kennedy took his seat in 1988, Rehnquist suddenly had five votes for a lot of conservative positions where he didn't before -- to cut back on the separation of church and state, to cut back on the reach of the federal job discrimination laws.

Do you remember in the spring of 1989 there were six or seven cases involving civil rights and job discrimination where the court on five to four votes trimmed back some earlier interpretation of the civil rights laws? That was the year of the flag-burning case. I think that was the great exception to the rule. I think the free speech clause of the First Amendment is the one provision of the Bill of Rights that has strong support, even on a very conservative court. Scalia and Justice Kennedy and, I think, Justice Souter are strong proponents of free speech, for a lot of reasons. One is that nobody can deny there is a free speech clause in the Constitution. It's not one that Scalia says, oh, they made it up somewhere, [like] the right to privacy or the right to abortion. There is unquestionably a free speech clause there. The flag-burning case was a great symbolic fight that spring.

Drug testing was another big issue. Whether you can execute 16-year-olds. A 16-year-old commits a murder and, say, Missouri sends that person to death. Is that cruel and unusual punishment? Is it cruel and unusual punishment to execute somebody who is a mentally retarded person who commits a murder? Those were great cases that divided the court five to four, and I tried to give some sense of the battle over those cases and the division of opinion among the justices. It's one of the great things about the court, they have to decide. I mean, they don't just sit around and debate these issues. They have to finally decide how do you come down, one way or the other.

SAVAGE: I think some of that is new. Justice Kennedy was kind enough to talk to me about that, and he went through a real meat grinder for a couple of weeks. Being appointed to the Supreme Court is a once-in-a-lifetime -- it's a lightning bolt for any lawyer or judge. He had come in here and was viewed as the front- runner for the seat once Robert Bork had been voted down. He was strongly supported by a number of people in the White House. The press had viewed him as the likely contender. He was staying with a friend in Virginia at one of his clerks' house. He expected to get a call that morning saying, "You're going to come down to the White House and you're going to be the president's nominee," and it turned out at the last minute that Ed Meese and Brad Reynolds decided to go with Doug Ginsberg who had worked in the Reagan Justice Department.

I think that would have been a crushing experience for a lot of people. Kennedy seemed to take it with real equanimity and got on the first plane and flew back to Sacramento and was ready to resume his life of being an appeals court judge in Sacramento. He was heading off to Samoa, he told me. He was judging some cases out there. He told his wife, "It was a lifetime in Washington, or a week in Samoa was the second prize, so I got the second prize, the week in Samoa." He went out there, and he happened to be in Samoa during the time that Doug Ginsberg's nomination was collapsing. If you recall, he only lasted about a week. There were a series of stories undercutting Ginsberg. He was not well-known, and then there was the story about having smoked marijuana as a professor at Harvard Law and the administration really asked him to step down, and then Kennedy got a call during the middle of the night from Ed Meese saying, "You know, this time this is it, Tony." He got on another plane and came back here, and this time, of course, he was the nominee. So, it can be a very trying period for anybody. But, as I say, I was very impressed by how well he took both the defeat and then finally, of course, was delighted to get the nomination.

SAVAGE: Those are my two children.

SAVAGE: Ten and 6. Manning, in particular, is somebody who does not like to sit down and write. I have to push him a little bit to get him to do school work, so I thought I'll show him, "Manning, there is some payoff to sitting still and writing," and I hope this is some minor inspiration for him.

SAVAGE: No, I'd rather not. There are so few members of the court. As you mentioned, in some of the quotes I'd say a justice believed this or that. I'd rather not get into limiting the number and going through which ones were willing to talk at some length and which ones weren't.

SAVAGE: They were kind enough to offer to read the book. I sent it around to a number of people, and I was pleased that they had nice things to say about it. I did, as I say, try to make it a book that both sides of the spectrum could find something worthwhile in it.

SAVAGE: It was good to be here, Brian.