The Supreme Court: how it was, how it is.

The Supreme Court: How It Was, How It Is

by William H. Rehnquist (Morrow, 338 pp., $18.95)

WILLIAM REHNQUIST is a controversial Chief Justice, but he is known privately as an affable man. The Supreme Court: How It Was, How It Is displays his personal charm and generally avoids contentious topics. It aims to familiarize the ordinary reader with the Court's role since the days of John Marshall. In its quiet way, it also makes some conservative points.

The book begins with a three-chapter memoir. Rehnquist recalls arriving in Washington in 1952 to serve as law clerk to Justice Robert Jackson just as the Court was deciding a major constitutional case, Truman's seizure of the steel mills. He doesn't discuss the case in technical terms but gives an inside look at the Court's workings as they appeared to him as a young man.

He retains his awe and affection for Felix Frankfurter in particular. Tiny, magnetic, pedagogic, Frankfurter flattered the young Rehnquist by arguing with him instead of pulling rank.

Frankfurter was the subject of an odd conversation between Rehnquist and his landlord. "What's the story on this Julius Frankfurter?' the landlord demanded, on learning where his tenant was employed. "I understand he's right in bed with the Communists.'

Later the landlord mysteriously fixed a traffic ticket for Rehnquist, then announced that the policeman required a fifth of whisky in compensation. Swallowing his moral outrage, the future Chief Justice acceded to contemporary community standards. It was a sort of pragmatic scruple: since he'd already accepted the benefit, he decided it would be hypocritical to reject the terms entailed. You can't help liking a man like that; at least I can't.

Ensuing chapters portray earlier Justices. Rehnquist admires Marshall, naturally, for the forceful incisiveness that made the Court a powerful branch of government; he also tries to rescue Roger Taney from the obloquy that dogs his reputation because of Dred Scott. But he seems most to admire Oliver Wendell Holmes, whom he quotes often and whose skeptical positivism he seems to share.

Rehnquist avoids explicit philosophical commitment. In this book he blends the skills of raconteur and summarizer, explaining major Court cases in earthy terms. It's fascinating to learn, along the way, that for many years the Court's docket was so light that Justices were appointed along regional lines, so that they could divide their time between the High Court and lower federal courts. In those days the area around the White House was "romantic but wild,' according to Abigail Adams. Around the Capitol, Albert Gallatin found "7 or 8 boarding houses, 1 tailor, 1 shoemaker, 1 printer, and washing woman, a grocery shop, a pamphlet and stationery shop, a small dry-goods shop, and an oyster house. This makes the whole of the federal city as connected with the Capitol.' The Supreme Court met in a committee room in the Capitol building.

Rehnquist follows Holmes and general opinion now in taking a dim view of the Court's pro-capitalist activism around the turn of the century: "The Court was in the process of sowing a wind, with the whirlwind to be reaped years later.'

The whirlwind he refers to presumably began with the 1937 fight over FDR's Court-packing plan, to which Rehnquist devotes a dramatic chapter. Opposition to the scheme came unexpectedly from Democrats; the meager Republican remnant (only 18 survived in the Senate after the 1936 election) wisely kept quiet, lest the issue divide along party lines.

Though the plan was blocked, Roosevelt soon filled the Court with New Deal henchmen. In the twinkling of an eye, what had been unconstitutional became constitutional. And as the Court forgot the Tenth Amendment and found new, "progressive' uses for the Fourteenth, the Democrats dropped judicial restraint and advocated, with equal passion, judicial activism. Eschewing the terms "liberal' and "conservative,' Rehnquist subtly makes it clear that the effective meaning of the Constitution is at the mercy of personnel changes on the Court.

The Justices and the textbooks speak of "tradition' and "development,' but the history of constitutional law is full of zigzags, reversals, and abrupt innovations. It isn't easy to give that history the aspect of unity and continuity, and Rehnquist doesn't try to.

His conclusion is less a celebration of the Court than a warning against misconceiving its role. He rejects as simplistic the idea that the Court is "the conscience of the country' or "the ultimate protector in our society of the liberties of the individual.' He is worth quoting at length on the latter phrase, which

describes an important role of the Supreme Court, but by ignoring other equally important functions of the Court, . . . has its own potential for mischief. It is a fairly short leap from this language to a feeling that the United States Constitution is somehow "vindicated' every time a claim of individual right against government is upheld, and is not vindicated whenever such a claim is not upheld. But this, of course, cannot be the case. The role of the Supreme Court is to uphold those claims of individual liberty against the government that it finds are well founded in the Constitution, and to reject other claims of individual liberty that it concludes are not well founded. Its role is no more to exclusively uphold the claim of the individual than it is to exclusively uphold the claims of the government: it must hold the constitutional balance true between these claims. And if it finds the scales evenly balanced, the longstanding "presumption of constitutionality' to which every law enacted by Congress or a state or local government is entitled means that the person who seeks to have the law held unconstitutional has failed to carry his burden of proof on the question.