I was reminded twice in the past week of the culture of notes and letters at the Supreme Court. When I spoke to a group of mid-career journalists at the National Press Foundation on Monday, a reporter asked who at the Court I would call or e-mail if I wanted to interview a justice. I said I often wrote a letter to the justice detailing my request. “A letter?” she said with disbelief and a tone of who-does-that-anymore? But this is an old-fashioned bunch and that is how they regularly communicate with each other and the outside world. Many of them e-mail and even text now, but they still write letters — handwritten letters on heavy, engraved stationery.
I was also reminded of the practice when I read Adam Liptak’s story last Tuesday in the New York Times about studies of oral dissents. In my research for the O’Connor biography, I was tipped off to the timing of her first-ever dissent from the bench (in 1991, a decade after being sworn in) by a personal letter she wrote to then-retired Justice Lewis Powell. I found it in his archive at Washington and Lee University. O’Connor had been the lone dissent in the case of Pacific Mutual Life Insurance v. Haslip, upholding a punitive damages award, and she let Powell know she was so disturbed she took the unusual (for her) step of reading portions of her statement from the bench. She lamented what she perceived as a lack of standards for such damages: “Rarely is a jury told anything more specific than ‘do what you think best.’”
To this day, Justice Ruth Bader Ginsburg is a prolific letter writer, as is Chief Justice John Roberts. The late Chief Justice William Rehnquist would often pen whimsical notes to colleagues as he sat on the bench, and earlier when he was an associate justice (1972-1986), he wrote letters to friends when oral arguments bored him.
One of my favorite Rehnquist letters was written to Powell when he was recuperating from cancer surgery:
“We have now finished our January argument calendar, of course, and I must say I can’t ever remember a less interesting or stimulating group of cases. If you had to miss one oral argument session, I don’t think you could have picked a better one to miss. Even the conference today got a little bit testy, as it does at times. Some of the Chief [Warren Burger]’s discussion is quite good, when he feels very strongly about something and when he feels he has a majority with him; but some of it can be singularly uninspiring. Sometimes when he runs out of things to say, but he doesn’t want to give up the floor, he gives the impression of a southern Senator conducting a filibuster.
“I sometimes wish that neither the Chief nor Bill Brennan would write out all their remarks beforehand and deliver them verbatim from the written page. Bill is usually thorough, but as often as not he sounds like someone reading aloud a rather long and uninteresting recipe. Then of course Harry Blackmun can usually find two or three sinister aspects of every case which ‘disturb’ him, although they have nothing to do with the merits of the question. And John Stevens, today, as always, felt very strongly about every case, and mirabile dictu had found just the right solution to every one. As you might imagine, my conference discussion was, as always, perfectly suited to the occasion: well researched, cogently presented, and right on target!”
In 1996, Justice Scalia wrote a particularly dispirited note to Harry Blackmun that I and other researchers have used over the years: “ … I am more discouraged this year than I have been at the end of any of my previous nine terms up here. I am beginning to repeat myself, and I don’t see much use in it any more.”
One particularly amusing personal note from Justice Scalia came in 2001, after I had switched from the Washington Post to USA Today. He was not happy with some of my coverage at the Post but said he wouldn’t hold it against me: “Nursing grudges is a very Sicilian vice, but … not one of mine.”