The Florida Bar
The Florida Bar Journal
March, 2013 Volume 87, No. 3

Page 51

The Partisan, The Life of William Rehnquist
by John A. Jenkins
Reviewed by David Mandell
If ever a person was at the right place at the right time, it was Chief Justice William Rehnquist. In this biography, John A. Jenkins explores how Rehnquist rose from a modest background to become one of the longest serving and most influential justices of the United States Supreme Court.

Rehnquist had no family ties to law. His father was a paper salesman and his mother a translator. Jenkins shows how a remarkable set of circumstances lead him on his unlikely path to the Supreme Court.

After a brief stay at Ohio’s Kenyon College, he enlisted in the army and was sent to North Africa. He developed a taste for warmer weather than he found in his native Wisconsin. Upon discharge, he attended Stanford University in California and its law school. Supreme Court clerks in that era came almost exclusively from a handful of northeastern law schools, but a professor who was friendly with Supreme Court Justice Robert Jackson introduced Rehnquist to Jackson who offered him a clerkship. As Jenkins demonstrates, Rehnquist’s time as clerk was eventful and followed him throughout his career.

During his clerkship, the court addressed important civil rights cases. Rehnquist wrote memorandums urging Jackson to oppose ordering an end to segregation. The court didn’t follow his advice and declared segregated schools unconstitutional. Throughout his lifetime Rehnquist maintained that his memos represented Justice Jackson’s views rather than his own. With Jackson deceased, nobody could disprove him, but Jenkins believes the memos reflected Rehnquist’s views and that he was dishonest when he insisted they were Jackson’s.

When his clerking ended, Rehnquist moved to Phoenix. Jenkins rebuts the tale told by Rehnquist and his clerks that he decided to leave Washington and try Arizona based upon a National Weather Service climate study. The real reason was that his wife was a Phoenix native.

Once in Phoenix, Rehnquist joined a series of law firms, and as Jenkins demonstrates, just as a Stanford connection lead him to a Supreme Court clerkship, a Phoenix connection lead to a high position in the U.S. Justice Department. Active in local politics, he became close to Richard Kleindienst. When Richard Nixon became president, he appointed Kleindienst deputy attorney general and he in turn brought Rehnquist to the Justice Department as head of the Office of Legal Affairs. Relishing the role, Rehnquist became the department’s chief defender of its policies over crime, civil rights, and other sensitive issues. Jenkins points out that Rehnquist also had at least partial responsibility for the failed nominations of Supreme Court nominees Clement Haynesworth and Harold Carswell. Fate intervened again for Rehnquist when two Justices, John Harlan and Hugo Black, retired and Nixon nominated him along with Lewis Powell to succeed them. Jenkins portrayal of Nixon’s relationship with Rehnquist is comical. Prior to his nomination, they had met only once. Unsure of Rehnquist’s name, Nixon thought his garish wardrobe made him look clownish.

Jenkins who interviewed Rehnquist in the 1980s has a respect for his influence, despite his deep disagreement with his rulings. He points out that Rehnquist was willing to remain a lone dissenter for his views limiting federal power over the states and to wait years until his dissents became majority opinions. Jenkins also discovered another side to Rehnquist. After years in the political arena, Rehnquist was bored with the monastic atmosphere of the court and turned to fiction writing. Although his novels were never deemed publishable by his agents and editors, he spent years at the effort. He also developed a friendship with his much older and ideologically opposite colleague William O. Douglas.

In 1986, fate intervened again in Rehnquist’s favor. Chief Justice Warren Burger retired to devote himself to the constitutional bicentennial. President Reagan nominated Rehnquist as Chief Justice and he survived a bruising battle in the Senate. Once again he denied that the clerkship memos supporting the segregationist side represented his views.

As Chief Justice, Rehnquist was finally able to reverse the extension of federal power over the states. Once taken for granted that Congress had unlimited power, the Rehnquist court reversed that course in many areas. Another target was the repeated use of habeas corpus petitions by convicts which Rehnquist saw as a way for convicts to endlessly keep appeals alive.

Most biographies of Supreme Court justices focus on their decisions. Justices rarely give interviews and limit their disclosure until they retire from the bench. Other than family members, few know them off the court and what experiences lead them to their beliefs. By focusing on Rehnquist’s private life and his years before joining the Supreme Court, Jenkins provides a keen insight into how Rehnquist’s vision came to be. One quibble with the book is its title, The Partisan. William Rehnquist was surely as partisan as any justice who ever served but he was hardly the first partisan. Since the days when John Marshall used the Supreme Court to challenge Thomas Jefferson’s power, partisanship has not been lacking at the Supreme Court.

David Mandell is a Florida Bar member in Norwich, Connecticut.

Business and Commercial Litigation in Federal Courts, Third Edition
by Robert L. Haig
Reviewed by Chris Coutroulis
Business and Commercial Litigation in Federal Courts, Third Edition is a product of West and the ABA Section of Litigation. Editor-in-Chief Robert L. Haig has assembled a distinguished group of federal judges and experienced litigators to serve as chapter authors. The treatise proceeds chronologically through each phase of the prosecution and defense of litigation from investigation to trial, appeal, and enforcement of judgments. It also includes chapters devoted to substantive areas of law, such as antitrust, securities, and products liability. These are authored by specialists in the relevant fields, and will be helpful to the lawyer using the set as a starting point for further, more focused research.

The treatise is user-friendly and the writing is concise. It provides citations to primary sources in footnotes that are substantial, but do not distract from the textual presentation.

The set provides helpful strategic considerations from the perspective of both plaintiff and defendant. It also provides, in text and on diskette, checklists, forms, and jury instructions. As an example, the chapter on antitrust law, one of my principal practice areas, does a nice job of unraveling what can be a complex field. It sets out the key elements and principles in a thorough but accessible fashion. At the end of the chapter, there are checklists setting forth the elements of antitrust claims and defenses, examples of the types of evidence that could be used to support them, and sample jury instructions.

This substantially expanded third edition includes 34 new chapters on a variety of topics. I asked several of my partners whose practices are concentrated in some of those areas to review the new chapters. All of their responses were positive.

For example, the new chapter on food and drug litigation touches on many pitfalls that may be unfamiliar to those who do not practice in this area.

The chapter on white collar crime comprehensively covers the initiation of a criminal investigation to the final disposition of criminal charges. It describes the government agencies that undertake white collar investigations and prosecutions, and explains the types of white collar crimes.

The chapter on internal investigations is similarly comprehensive. It should be an excellent primer for lawyers who have not previously conducted an internal investigation, as well as for highly experienced practitioners who need a “refresher course.”

The chapter on the interplay between commercial litigation and criminal proceedings covers important applicable principles, including Fifth Amendment issues, double jeopardy, collateral estoppel, the law of privilege, and the interplay between civil damages and criminal restitution.

The new chapter on regulatory litigation with the Securities and Exchange Commission offers soup-to-nuts coverage of the key defense issues in federal court civil injunctive actions brought by the SEC. Most helpful is the chapter’s practical, real-world approach to this type of litigation, including its consideration of current trends in SEC enforcement, the difficulties of litigating against a well-resourced and well-respected government agency, and the challenges posed by parallel criminal and civil proceedings.

In short, Business and Commercial Litigation in Federal Courts, Third Edition, like its predecessor editions, is an impressive set that should serve as a great starting point for any in-house or law firm attorney seeking initial guidance on new matters that may be litigated. It should also be valuable for the seasoned litigator seeking a refresher on the basics in a particular area or background on a key issue. I recommend it.

Business and Commercial Litigation in Federal Courts, Third Edition, is available from West, 12 volumes (130 chapters), plus diskette of forms, $1351. Forty percent discount to ABA Litigation Section members. To order, call (800) 344-5009.

Chris Coutroulis is a Florida Bar member with Carlton Fields in Tampa.

[Revised: 02-27-2013]