Justice William H. Rehnquist ’52 visited the School on Alumni Weekend, April 6-7. He spoke at the annual Alumni Banquet, met with groups of students, and presided at the Marion Rice Kirkwood Competition. The following excerpts are from interviews he held with students.

Rehnquist Responds to Student Queries

Q. How has being on the Court changed your personal life?

A. It’s a more cloistered existence than I experienced either in private practice in Phoenix or in the Justice Department, but it really hasn’t dramatically changed my family life.

I don’t find that I am putting in markedly more time on this job than I did when I was in the Justice Department or when I was in private practice. As a lawyer you work hard wherever you are. My professional life, in the sense of contacts with other members of the Bar-that sort of thing, tends to be more restricted now.

Q. Do you find that your Middle Western background has influenced your viewpoint?

A. Oh, I’m sure it has, although I couldn’t really put my finger on how. In a way it made me a generation behind public opinion in foreign affairs. In high school I was an isolationist, just because that was the temper of the times in Milwaukee before World War II. Then I was converted to internationalism at the time of the Marshall Plan. That apparently is no longer the vogue. Things like that stay with you but you just can’t say how much of your present thinking process is attributable to your early years.

Q. Did you go to Stanford as an undergraduate?

A. I went one quarter to Kenyon College in Ohio before I turned 18. Then I went in the Army for three years where I got some schooling. I then came here and finished my undergraduate work in two years or a little less.

Q. Would you discuss your extracurricular activities when you were in Law School?

A. The first year I was a counsellor at Menlo College and the second year I was a resident assistant at Encina when it was a freshman dormitory. During my second and third years I was the head hasher at Encina, managing the dining hall in the morning. And then I was the first to have a little coffee concession in the basement of the Law School, which Bill Keogh tells me now is a thriving emporium.

Q. How did you come to clerk for Mr. Justice Jackson?

A. Well, my first meeting out here was through the auspices of Phil Neal who is the Dean at Chicago Law School now and who was then teaching administrative law here. He had been a law clerk to Justice Jackson some three or four years before he came here. During the summer of my second year (I was going to summer school so I could Past and present Friendly Law Lounge operators meet: William Rehnquist ’52 and Arthur Snyder ’73. finish early), Justice Jackson came out to dedicate the then new Law School, which you guys are about to move out of. Phil asked me if I had even given any thought to clerking. I hadn’t and he said, “Well, why don’t you see if Justice Jackson wants to talk to you while he is here. He might take you on as a clerk.” I said fine. I was surprised at the nature of the interview, although I am much less surprised now that I have been doing interviewing of my own. I thought he was going to ask me some very knotty problems about federal jurisdiction or conflict of laws to see how well I fielded them. Instead he pumped me about my name and my Swedish ancestry, what little I knew of it, and then told me about all the Swedes he used to deal with when he practiced in Jamestown, New York. It was just a friendly, casual conversation. I was sure at the time he had written me off in the first two minutes and was trying to get gracefully out of the thing. But I think he was interested, just as I now am, in seeing whether a clerk is pleasant to have around.

Q. Has your relationship with your clerks this year been substantially the same as the relationship you had with Justice Jackson?

A. There are points of similarity and some points of difference. Justice Jackson relied very heavily on his law clerks for the certiorari work and for recommendations as to how he should vote in conference on discretionary grants, and I do the same. I probably entrust my clerks with more responsibilities for first drafts of opinions than he did.

Q. There has been a rumor among law students that in order to clerk for the Supreme Court, it’s virtually necessary for a person to have completed a clerkship with the court of appeals. Would you comment on the various qualifications of a law clerk?

A. I think there are nine different sets of qualifications. Several of the justices do feel they want a year’s prior clerking experience with the thought that it gives some feel for how the business of the federal courts is conducted in a procedural way that you may not get in law school. I don’t feel myself that it is a prerequisite. Of my three clerks next year, one was a clerk to Judge Duniway, one has worked in the Justice Department, one is coming right out of law school-that’s really the whole spectrum. So the answer depends very much on the individual justice. Some of the justices, e.g., Justice Brennan, have a policy of telling a law school a year or two in advance that they will take a law clerk from that school in a particular year and just rely on a faculty member they know there to select a person. Justice Douglas has a screening committee of two or three of his former law clerks and I think he takes almost exclusively from Ninth Circuit law schools. And I think neither of those two rely at all on personal interviews; they simply take the person whom the selector picks and I think they are very happy with the system. Justice Stewart, Justice White and I (I because I haven’t had time to formulate much of a policy) try to screen through the applications to get 20 or 25 that look the most likely and have them come in for personal interviews.

Q. Is there any chance at all for a person who doesn’t come from one of the “national” law schools?

A. I think that’s a good question and I feel quite strongly that there are a lot of good law schools in the United States today that are turning out some people fully capable of being law clerks. I don’t think you have to be an Albert Einstein to be a law clerk any more than you need to be Albert Einstein to be a Supreme Court justice. My law clerks next year are coming from Stanford, Kentucky, and Arizona State. Although you think of Stanford, my alma mater, as a “national” law school, you don’t think of either Arizona State or Kentucky being that way.

Q. Do you find that your view of the Court has changed since you were clerking?

A. Yes. I have a feeling that as a clerk I probably got a worm’s eye view of the Court. I put in a day’s work and left at 6:00 or 6:30 at night. I would see Justice Jackson taking a briefcase home every night, but I was a bachelor and didn’t worry about the Court’s work after I left. I wasn’t fully aware of the amount of time he put in outside the office. I don’t think a clerk gets any real feel for the nature of the collegiate deliberations of the conference. They’re not there and it’s just natural that you have a better feel for something you experience first-hand.

Q. What are your feelings on the amount of work that the Court as a whole has to do in view of the recent controversy on whether or not the Court is overworked?

A. I wouldn’t say that as of right now it’s an unmanageable load, but I have little doubt that if the docket keeps increasing, the load will be unmanageable in a few years. The time taken to screen the cases is gradually impinging on the time necessary to deliberate and write opinions on the cases we actually take. The Freund Commission has served a very useful purpose in highlighting that problem. I’m just not prepared to say, however, whether the remedy they suggest in the creation of a national appellate court is most appropriate, or whether some other remedy is the one that ought to be finally chosen. I think the abolition of the three-judge court is probably a good idea. From talking with men who have sat on them, I get the impression that frequently it is not a particularly welcome assignment and that it tends to be sloughed off a bit. The circuit judge probably is from out of town and is anxious to get back. It isn’t the happiest tribunal for a deliberate judicial consideration. The result-insofar as the Supreme Court is concerned-is that in the many cases from these courts which are appealed to our Court, we must either summarily affirm or hear argument and then decide the merits. We don’t have the option of simply denying certiorari, letting the lower court’s decisions stand, and in effect seeing what other lower courts in the next couple of years may have to say about the thing. That approach is always helpful in providing several different opinions on a problem rather than just one. As for the most controversial part of the Freund report-creation of a national court of appeals to do some screening-I think the report highlights what is a problem now and what is going to be a much more serious problem in the future. When I was a law clerk 20 years ago, the Court had between 1,600 and 1,800 cases a year on its docket. Last year it was 3,600, and the number is growing by several hundred a year. I think the Court is managing now to screen the cases in order to make the decision whether or not to hear them, but I think it’s straining. If it is not true now, it certainly will be in five years that the time necessary to deliberate and write opinions in the cases that we do hear is curtailed by the number of cases to be screened. Whether or not the proposal advanced by the Freund Commission is the most desirable, it would probably accomplish what it was designed to accomplish. If there are other alternatives that might accomplish that goal just as well without being subject to the criticisms aimed at this report, I’d certainly be more than happy to postpone judgment and see what everybody has to say. I don’t think there is any proposal for action now or in the next year or so and I think the kind of public discussion that the profession has been having about the thing is healthy.

Q. How do you view some of the proposed and actual reforms in legal education since you were at Stanford?

A. You probably are much more up on current trends in legal education than I am. I had the feeling when I was going to law school that I had mastered, to the extent I was capable of mastering, the Socratic method by the end of the second year and that the third year was kind of a drag. I’m in favor of making it possible for third-year students to get out and do things that lawyers do. I know many states have arrangements whereby third-year law students can sign up either with the public defender or with the attorney general and do brief writing on cases that are going, for example, to the Supreme Court of Arizona. It seems to me that’s a very healthy arrangement. I think probably you are as qualified to write an appellate brief when you just come out of law school or just enter your third year of law school as you are to do anything. As for courtroom work, that’s something for which you have to develop a feel-when to stand up and when to sit down, that sort of thing. To the extent that a system can be devised that assures the client isn’t just going to get a law student all by himself, but one who’s working under some sort of supervision by a lawyer, I would think that third year trial experience might be a desirable thing.

Q. There’s been a lot of controversy nationwide and especially in California recently on the necessary qualifications for appellate court judges and I wonder if you would be willing to comment on whether you think that an appellate court judge should have qualifications significantly 8 higher than that of the legal profession at large? Or whether we need, as has been suggested, some mediocrity on the bench?

A. I must say I haven’t given a lot of thought to the question, and certainly my length of service as appellate judge doesn’t give me any overwhelming qualification to speak. I think an appellate judge needs certain kinds of qualifications that you don’t need to practice in lots of other areas of the law. But I think that, on the other hand, a good appellate judge could be a complete flop in some branches of private practice. Consider the different attributes that the profession has-one lawyer puts together a corporate merger; another argues on appeals, say in a criminal defense case, trying to persuade an appellate court that his client’s constitutional rights have been denied. Another is a basic counsellor in a small town who has a tremendous psychological role to play as well as just analyzing legal problems. The legal profession is not homogeneous at all in the kind of abilities it requires. An appellate judge must be able to write and express himself, he’s got to be willing to make up his mind and he’s got to have some of the same analytical ability that you are taught and that is stressed in law school. I think you can certainly get by in some areas of the profession without as much of that as would be desirable in an appellate judge. ‘On the other hand, you take a guy who has all those attributes and put him before a jury in a tough criminal or libel case and he can just fall flat on his face. You take a guy who has all of those attributes and he can make a very poor oral argument before an appellate court, just because even oral appellate advocacy has a certain amount of stage craft about it. So, you certainly want appellate judges that are above average in some of the attributes of the profession, but I don’t think you can make a sweeping generalization that the guy ought to be a better than average “lawyer”.

Q. Do you intend to spend the rest of your working life on the Court?

A. Oh yes. I don’t think you can really take a job like that with the feeling that you’ll see what else turns up along the way. And the Court was apparently just pestered with presidential and senatorial ambitions after the Civil War-Stephen Field, Salmon Chase, and David Davis, who ultimately did resign to become a senator from Illinois. Hughes certainly survived his resignation to run for the presidency, but I think that was probably just because of the extraordinary stature the man had. I think it would probably be a disservice to resign unless you had a health problem or unless you felt you were just temperamentally unsuited to the work. In making the original decision you do have to try to figure out what the job is going to be like, which is very difficult to anticipate in advance. But you certainly do feel you are making a commitment for the indefinite future. If I had been given an option of accepting a nomination now or ten years from now, I might very well have opted for ten years from now. But nobody ever puts it to you that way, so you’ve just got to make the decision for now.

Remarks of Justice Rehnquist at Annual Alumni Banquet

It is a real pleasure to be back here reunioning with Law School alumni. On several occasions recently, I have been asked to give a title to my remarks and by now I am in the habit of preparing a title. Tonight no one asked me for a title, but I have one anyway: “Reflections of a Middle Aged Alumnus.”

First, let me tell you how I got to be a middle-aged alumnus; let me recreate the scene for you. Here at Stanford, in September 1949, when many of us were entering freshmen at Stanford Law School the sunny feeling of the Inner Quad, where the Law School was in those days, was very much present. We were very much in awe of the fact that we were freshmen in law school. A lot of us certainly weren’t young by the standards of today’s students. We had been in the service in the Second World War, but this didn’t lessen our awe at the prospect of entering law school.

Carl Spaeth was dean and our first year courses that fall were taught by a fabulous collection of professors. Let me jump briefly over Jim Brenner’s legal bibliography course, which he never pretended was interesting. And we were not exposed to George Osborne tha first year; he was away, and instead we had Cyril Means who came back for the 20th Reunion last year. Cyril was way ahead of his time, he had a moustache in 1949.

On to the substance of the courses we had that first fall. There was Harold Shepherd, one of the finest contracts professors in the country. To him the law was a structure, not as symmetrical perhaps as the Parthenon, but more a Roman road or aqueduct, solid and utilitarian with masses of cases in his case book to prove it. We had him for an hour a day, five days a week, as I recall.

Marion Kirkwood taught us property. I remember my surprise, I think it was a common surprise of all of us who studied under Marion, when he first referred to “a recent” California case. It had been decided in 1912! I will say that although at the time it seemed to me we didn’t get into the twentieth century in property law, I had many occasions later to be grateful in private practice for the kind of grounding in property fundamentals that he gave us.

We had John Hurlbut in criminal law. I’m probably prejudiced: he has been a close personal friend of mine for twenty-five years. He stretched one’s mind in a way that you could actually feel the process. I’m not telling those of you who had him anything, but some of you did not have the privilege. He would take your premises, not his, and go to the end of the earth with you. When you got there you found that he was right and you were wrong.

I had the pleasure during my third year in law school of working as his assistant on a book on California Evidence that he was preparing. I would digest cases for him and occasionally talk about them with him. I graduated thinking that John was expecting to publish the book shortly. A few months later when I was working in Washington, we had dinner and I said, “John, is the book out?” “No,” he replied. “When,” I asked, “is it coming out?” And he added; “It is not going to come out.” I knew he had a contract with the publisher. I said “What’s the matter?” “Bill,” he answered, “the California courts have so screwed up the law of evidence that I can’t bear to write about it.” That was John Hurlbut’s approach to the law and for a first-year law student it was a truly awakening experience.

We didn’t have Sam Thurman or Carl Spaeth until the spring, but we did have the Roman road of Harold Shepherd’s contracts, the bedrock of Marion Kirkwood’s property, the everlasting, unassertive skepticism of John Hurlbut’s criminal law as a start in that first year of Law School. To the extent I ever had an intellectual awakening-and there may be some people who doubt the underlying premise-it was that first year of law school. I continue to feel gratitude to the Stanford Law School for having launched me into the legal profession. I discovered that one not only becomes a lawyer after going to law school, one becomes an alumnus. There is no examination for that. In fact you don’t even have to pass. All you have to do is leave the place and start having some sort of income.

I think an alumnus by his nature is bound to pose problems for his alma mater and I think probably a law school alumnus poses problems of double magnitude. Any alumnus-and the older he grows the worse it becomes-is nostalgic. College doesn’t teach you how to grow old gracefully and college, even law school, tends to appear more and more part of one’s idyllic past. Remember the lines of Victor Herbert, “Toyland, toyland, little girl and boy-land, while you dwell within it, you’re ever happy there, but once you pass its borders, you can ne’er return again.” I suspect that many of those here tonight-at least those of us who have attained middle age-have something of that feeling about our college days; it’s a nostalgic feeling. Although we know that we ourselves cannot return again, we like to think that things are just the way they were, just the way we knew it, so that the next generation may experience what we did.

Now, when you put that mental frame of mind together with the frame of mind of a lawyer who-because he is a member of a profession-is both traditionally conservative and trained to examine any new idea critically, you can see what a problem that a law school alumnus presents to his alma mater.

Substantial change in the alma mater comes to the lawyer alumnus bearing what lawyers and judges would call a “heavy burden of proof.” Perhaps phrasing it in constitutional terms it might be said to be a “suspect classification,” which requires a “compelling academic interest” to justify it.

The alumnus is apt to want his school to stand pat in any area. Further, all alumni have been subject to some reverberations from the turmoil that has gone on in all universities during the past decade. Many have become genuinely alarmed.

Stanford, as President Lyman commented, had its share of turmoil and it has had its share of alarmed alumni. Most of us alumni, at least those of us who dwell outside of the Bay Area, catch only vignettes of what happened. We see through a glass darkly and we frequently only get newspaper accounts of events that stress the sensational.

If we sit down and think about it, those of us who are alumni realize that we don’t have the capacity, we don’t have the time, and-if we really ask ourselves-we don’t have the desire, to supervise the operation of the University or of the Law School. We don’t want the responsibility that would come with that task.

At the other end of the spectrum, some of us probably feel that there is too ready a categorization of the University constituencies: students learn, faculty teach, administration administers, and alumni give. Isn’t there some middle ground on which the alumnus can stand? I mean a ground that doesn’t require him to assert, “Do it my way or else,” in order to be thought of as more than a bank account to the University? I think. the University and the Law School, through the Board of Visitors, and through their stimulating of contacts with the alumni have certainly realized that there is. The alumnus who conditions his financial contribution to the School on complete agreement with the School’s policies, is not engaging in an act of charity, he’s attempting to buy something for cash. He may get an IRS deduction for it, but he certainly won’t rank. in the same class as Abou Ben Adhem.

If alumni may properly be asked to support the larger idea of the University, even when they disagree with particular policies, may not alumni properly ask that the University’s other constituent parts do likewise? Certainly an alumnus ought not appear in a purely selfish position in the matter, insisting that his money or his support is conditioned on doing things to his liking. But he has a right to ask that the other constituent elements of the University accept a similar obligation. I recently came across a quote from Tom Ehrlich’s old boss, Learned Hand. I wonder if it doesn’t have some bearing on universities. He said, “A society in which each is willing to surrender only that for which he can see a personal equivalent, is not a society at all; it is a group already in the process of dissolution, and no one need concern himself to stay its inevitable end; it would be a hard choice between it and a totalitarian society. No Utopia, nothing but Bedlam will automatically emerge from a regime of unbridled individualism be it ever so rugged.”

Judge Hand was speaking in the 1940’s and in quite a different context, but I think his words bear some heed today.

I can remember when I was a kid, going with my father on a few special occasions to Camp Randall where the University of Wisconsin played its football games. During the half-time, the band would play the University of Wisconsin song. My father would stand there with his hat off, like everybody else in the stands, and it struck me as a very mystical occasion. My father had never gone beyond high school, but he felt a sense of vicarious loyalty to the state alma mater. I am sure that he and others who went through that ritual felt they were not saluting the incumbent board of regents, the incumbent faculty:, the incumbent president, or the incumbent student body. They were saluting an institution that had a life of its own, an institution that was greater than the sum of its current constituent parts.

I wonder if the generations of students who have intoned, “Where the rolling foothills rise,” at the Stanford football games-however outwardly cynical and blase they may have been about the ritual-did not feel the same way. Most realized, I think, that a university is not just a legal entity, or a composite of the people who are presently concerned with it, but a good deal more than that.

What Edmund Burke once: said about the state has some message for a university. In his reflections on the French Revolution, he said, with respect to the notion that society is simply a contract to be broken at will,

Society is, indeed, a contract. Subordinate contracts for objects of mere occasional interest may be dissolved at pleasure; but the state (and here I would interpose university) ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern to be taken up for a little temporary interest, and to be dissolved by the fancy of the party. . . . It is a partnership in all science, a partnership in all art, a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.

Alumni, as one constituency of the university, may well ask questions and expect answers. They should not ask that their own notions of education be implemented or that changes in university policy be made in response to their financial gifts. But they may ask that the university continue to see that the winds of freedom still blow, that the great idea of a university be adhered to, that it not be bartered away.

Alumni dimly and only infrequently see all that goes on in the university. But we do have a role to play. It is a supportive role, and I suggest it is an important one. Rationally approached, this role can be of significant benefit to the university.

Although I have kept only fleeting track of events, even in the Law School, I have the firm impression that at times of crisis in the University in the past decade, the law faculty has made major contributions of a kind most alumni would heartily approve, that they have given support to the idea of ordered liberty when needed and major assistance of a kind only lawyers can render in the solution of difficult problems.

As an alumnus I take pride in my association with Stanford Law School. We have a first-rate faculty, an endowed dean (something that not every school can boast of), a fine student body, and a new law school building. So let mealthough I don’t have a glass in hand-toast with you tonight the Stanford Law School. May it achieve even new greatness.

Thank you.