Rehnquist: A Personal Portrait of the Distinguished Chief Justice of the United States

It is unlikely Bill and I would ever have met if a mutual acquaintance had not invited us to join a doubles tennis game he was organizing. If the players had not been terribly mismatched, we would not have become fast friends.

Ken Haggerty, a neighborhood dentist and a local Republican politician, invited Bill and me to join a "dream" tennis game he was organizing in the autumn of 1986. Since all of the players led active lives the "dream game" had five players, including a rotating substitute. The other players were Linwood Holton, the first Republican governor of Virginia since Reconstruction, and John (Dick) Hickey, the local Catholic bishop. We shared the same criteria: We were all political conservatives over fifty-five. We lived near one another in Northern Virginia and were members of the Washington Golf and Country Club. Plus, none of us had a regular weekend game. It all sounded like fun.

Haggerty had organized the game like a hostess planning a dinner party. A hostess assumes that if her guests share similar worldviews, the conversation will be lively and possibly stimulating. If their political perspectives are similar, there will be none of the bitter, nasty arguments that so often ruin social events in suburban Washington.

But athletic contests are not dinner parties. Tennis especially is fun only when the players are athletically well matched. Its demand for relatively equal skills is uncompromising. Conversation is incidental. Contestants usually know nothing about each other's politics or philosophical musings. On‑court chatter is usually considered intrusive. Most players resent it.

After a few weeks it became clear that the "dream game" was hopelessly dysfunctional. Haggerty's notion on how to organize a weekly tennis game was totally wrong: even though our political and philosophical outlooks were similar, our tennis skills were not even close. Haggerty was a former all-American basketball player who had captained the Holy Cross College team that included NBA Hall of Famer Bob Cousy. None of the others could run around a backcourt half as fast as he could. Linwood Holton and I were never part of a sports team's starting lineup, not even at summer camp. Bill was a slightly better athlete than I was, but after high school his only competitive sports activity was social tennis. The Catholic bishop was a good athlete, but he knew so little about the game he had trouble keeping score. To compensate for an obviously awkward arrangement, Holton, always the politician, told jokes after bad points, particularly ones that were attributable to his own ineptitude.

Bill and I shared our disappointment with the way the game was evolving. We got up early on Sunday mornings to play tennis, not to listen to bad jokes. Haggerty and the bishop pretended they were having great fun; I found their upbeat chatter embarrassing. Nobody was having a good time.

While the "dream game" was becoming something of a weekly ordeal, Bill and I recognized that our athletic skills were similar. Further, we both felt that talk on the court should be limited to occasionally acknowledging a good shot by your opponent and, only when necessary, stating the score. One weekend, when Haggerty could not find four "dream game" members willing to rise early and participate in a game that was no fun, Bill and I decided to play singles together. We ended up having a good time. And for more than a dozen years, we continued to play singles every Sunday when we were both in town.

Bill, who played doubles weekly with his twentysomething law clerks, was a better doubles player than I was. The long reach that went along with the six-foot-two-inch frame made him formidable at the net. On the other hand, since I preferred playing singles, I could run around the backcourt better than he could. Neither of us had strong serves. Although both of our forehands were stronger than our backhands, neither of us scored points because of our forehands' overwhelming speed.

Although we were both in our sixties, we were in good enough shape that an hour of hard-fought tennis singles was exhilarating rather than exhausting. We were not serious athletes, but we were serious players. Once we decided who served first, there was no chitchat or trips to the water cooler. Our competitive natures precluded approaching a Sunday tennis game as casual exercise.

After we began playing singles together, we never again played in a "dream game." Although Justices Antonin Scalia and John Paul Stevens (both of whom were better players than we were) often played singles with nonjudicial friends at Washington Golf and Country Club at the same time, they never invited us to join their game, and vice versa.

We did, however, play mixed doubles a few times each year when Bill's daughter Nancy, who lived in Middlebury, Vermont, and his sister Jean Laurin, who lived in Grand Rapids, Michigan, came to visit. At least one mixed-doubles match with my wife, Betty Nan, and me was usually part of Bill's entertainment program for both. Jean played at about the same level as Betty Nan, and Nancy was younger and a better athlete. All three women were better tennis players than their male partners. Our matches were spirited and fun. Neither family won consistently.

Probably the most memorable match with Jean and Bill began at 7:00 a.m. on the day after Nan Rehnquist's funeral. When Bill suggested the game, I questioned whether he wanted to be seen at a country club less than twenty-four hours after his wife's funeral. But he brushed my inquiry aside. Two hours of vigorous exercise with his sister as his partner was as good a way as any to begin the next chapter in his life.

Washington Golf and Country Club is a unique institution. Founded in 1894, it is Washington's oldest golf club and has listed on its membership roster Presidents Theodore Roosevelt, Taft, Wilson and Harding; the latter three were avid golfers who played the course regularly. Presidents Taft and Harding occasionally participated in club tournaments. Although there were no restrictions in its bylaws, blacks and Jews were not granted membership until the mid-1970s (I joined in 1978 and Bill in 1985).

Part of a country club's appeal is that within its confines the hierarchical distinctions that are part of everyday life in government and business are supposed to disappear. But country club ambience cannot always trump the real-world distinctions that exist outside its gates.

If, while waiting for our court or chatting after a match, another member stopped by, Bill usually jumped up, extended his hand and said, "Hi, I'm Bill Rehnquist." I always introduced him the same way. But only one in ten responded, "Hi, Bill." I estimate the remainder was evenly split: half continued the conversation without addressing him by name and the other half responded, "It's a pleasure to meet you, Mr. Chief Justice."

Still, I know of no activity in Washington in which rank and status mean less than in the contest for who gets to use Washington Golf's five indoor tennis courts on a midwinter Sunday morning. Court times are allocated on the basis of stringently enforced rules. Sunday between 8:00 a.m. and 10:00 a.m. is the preferred time to play tennis (before church and football). Often as many as fifty players vie for court times.

The tennis clerk begins accepting calls at 8:00 a.m. Saturday for Sunday court times. After 8:00:01 the tennis reservations telephone line is constantly busy. If a member does not slip through between busy signals until after 8:04 or 8:05, he or she probably missed the cut for the most desirable times. There are no exceptions. Everybody is on equal ground — even the chief justice of the United States and his fellow justices, who are often battling for the same time slot. In addition to me and Bill, Justices Stevens and Scalia, the president of the club, highly paid CEOs and prominent local citizens competed against twentysomethings who were skilled speed dialers. When two justices see each other on the court early Sunday morning, they likely jest, "Where did you learn speed dialing?" or "I was told nobody gets special treatment at this club." If we were both in town and we missed our regular Sunday morning game, it was almost always attributable to our getting beaten by overwhelmed phone lines.

For many months, Bill's and my weekly tennis games were enjoyable, vigorous athletic contests. But little more. After our Sunday morning game, we usually relaxed and chatted for fifteen or twenty minutes. In the beginning we talked the universal language of small talk: sports, the weather and political trivia. It was enjoyable albeit superficial.

Then we began exploring what, if anything, we shared beyond evenly matched court skills. We were curious about each other. We were also reticent. Neither of us felt compelled to advance our relationship. Our pace was deliberate and hesitant. The most important element in our friendship, shared core values and intellectual interests, did not become apparent until after we had known each other on the tennis court for many months.

Then a period of obtuse inquiry began. It was reciprocal and unstructured. We knew that we shared certain core values. We wanted to know more about each other. But our objective was subtle, unstated.

One Sunday in 1987, for no apparent reason, we began talking about the books that we were currently reading. For many years, discussion of our recreational reading became part of our routine. It continued long after we stopped playing tennis together.

When I visited Bill during his final days, we would almost always speak of our bedtime reading. It usually started a good conversation. Even if one of us was not knowledgeable about a particular work, we were often able to talk about the book's subject, its author or its literary genre. We soon learned that both of us had eclectic reading habits, as well as powers of recall that allowed us to make casual conversation about books we had read many years earlier.

The regular weekly commentary about our bedtime reading was substantive, challenging and enjoyable. It was also a self-revealing, almost confessional exercise. We disclosed to each other ideas, preferences and recollections that had remained dormant in our brains for a long time. Neither of us had friends with whom we could talk about books in the same wide-ranging manner.

These Sunday-morning talks added a new dimension to our lives. Our weekly book discussions confirmed that we shared ideals and values. But it would take several more months of book talk before we understood just how much.

During our last evening together in August 2005, when both of us knew Bill's death was imminent, we were still talking about our latest "for fun" read. David McCullough's 1776 led the New York Times Best Seller List during much of that summer, and I noticed the book was on the floor next to the recliner in front of the TV, where Bill spent most of his final days. He had just finished it. A few weeks earlier, by coincidence, I had also read it. I asked whether he had enjoyed it. His initial comment was dismissive. "Nothing really new there, just well-known events cleverly rearranged." But he continued, "I couldn't put it down once I started reading." My reaction had been similar. Then we talked about McCullough's remarkable narrative skills and how we envied him — and we were off once again.

As our postgame conversations — particularly our book discussions — progressed, each of us began to gratuitously drop familiar quotations into our talks. With no one else present, it was just simple, uninhibited fun. The poems we quoted, as well as the lyrics from Hollywood and Broadway musicals, were well known. Almost all of the poems can be found in most standard anthologies of British and American verse. We were not trying to show off; we were searching for an intellectual bond. This was a prelude to the Sunday morning — almost a year after we began playing tennis — when we finally acknowledged that we were playing another kind of game, this one of wits. On that day another strong link was forged in our chain of friendship. I remember the circumstances clearly.

Throughout 1987, the Washington Post regularly reported on racial disturbances in the Deep South. Following a deadly riot in Tampa, there was unrest throughout the region. While we relaxed on a bench near an outdoor tennis court, we discussed how the most recent bouts of racial violence seemed to be concentrated in the booming, prosperous cities of the "New South." Cities with glistening glass towers that had been built over the remains of, or adjacent to, dirt-poor, unsanitary shantytowns were the focus of much of that year's civil unrest.

Without warning or prelude, Bill commented, "Ill fares the land, to hastening ills a prey, / where wealth accumulates, and men decay.'€…" I was familiar with Oliver Goldsmith's "The Deserted Village." It was obvious that he was commenting on the fact that the racial unrest at this particular time was concentrated in newly-affluent modern towns that were not so long ago part of "Dixie Land." Although I could not quote the lines that followed, I was able to respond quickly with a droll line from the same poem about the village schoolmaster: "€…'And still they gaz'd, and still the wonder grew, / that one small head could carry all he knew.'€…" Bill recognized my response. And we both laughed. We had begun a game we would play for many years.

Bill followed with a verse about first-and second-generation post-slavery African-Americans, the parents of most of the urban citizens who were fomenting the unrest. It was from one of our favorite poems, Thomas Gray's "Elegy Written in a Country Churchyard":

He gave to Misery all he had, a tear,
He gained from Heaven ('twas all he wish'd) a friend.

Part of the fun of our game was juxtaposing quotations from different locales and genres. Gray's poem was about England's poor, uneducated and forsaken peasantry. But it was on target. I responded with lines from the same poem:

Let not Ambition mock their useful toil,
Their homely joys, and destiny obscure;
Nor Grandeur hear with a disdainful smile The short and simple annals of the Poor.

Bill then took us back to the locale of the problem with a verse from Hammerstein and Kern's "Ol' Man River":

He don' plant taters He don' plant cotton,
An 'dem dat plants 'em Is soon forgotten .€….€….

I followed with the Civil Rights movement's theme song:

We shall overcome We shall overcome some day

He kept us in an antidiscrimination mood by softly singing the South Pacific signature song "You've Got to Be Carefully Taught," the plaintive lament of an American naval lieutenant who discovers that differences in race, background and military rank make it impossible for him to marry his Polynesian girlfriend.

You've got to be taught to hate and fear You've got to be taught from year to year It's got to be drummed in your dear little ear You've got to be carefully taught

Then I ratcheted up the game several notches when I quoted from one of the most famous speeches in American history, in which slavery is used as a metaphor. I recited from Patrick Henry's "War Is Inevitable" speech (the one that ends, "Give me liberty, or give me death"), which was delivered in the Virginia House of Burgesses, where virtually all the members owned slaves: "Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God!"

That was a hard one to top. Bill finished the game with a line from George and Ira Gershwin's "Porgy and Bess," an operetta about life in a black ghetto in South Carolina:

It ain't necessarily so It ain't necessarily so.

Eventually our intellectual sporting event became more important than the athletic one that preceded it. Our poetry game was straightforward. But it was not simple or easy. While commenting on a newsworthy event during the preceding week, the initiator (we alternated each week) would work into our postgame conversation a few well-known lines from a 1930s or 1940s hit musical or a famous poem. The quotation had to be familiar to both of us. The other would respond by reciting lines from the same poem, a similar one or a related prose text. It was a game that was ours alone. We described the game to our spouses, but only the two participants fully understood its personal and intimate dynamic.

Our after-tennis exercise allowed us to explore the depth and breadth of each other's literary and entertainment tastes, as well as the paths we followed when making intellectual associations and connections. There were thousands of people in Washington who could recite more English poems and sing more show tunes than either of us, but only a few who could play in our game successfully. Our game survived for more than a decade because each of us understood the other and recognized that there were large gaps in each of our repertoires. The aim was to find quotations with which the other man was familiar and to which you could anticipate an appropriate response. If the game made either of us feel inadequate, we would have quit. If we had approached our poetry game with the same competitive zeal that we approached our tennis matches, the poetry game would have flopped. Like tennis, our intellectual game required closely matched skills and strengths. But unlike most sports contests, both players had to avoid exploiting the other's weaknesses. This was the trickiest part. After a few months we knew more about each other's thought processes than most friends learn in a lifetime.

From November to April we played tennis indoors, but during the rest of the year we played outside, even when the weather was a little chilly. During the outdoor months we had no trouble finding a bench or other facility so that we had enough privacy to play our game for fifteen or twenty minutes. In the winter we usually found enough privacy to play our poetry game indoors, but, if not, we retreated to one of our cars.

Over the years our subjects varied as widely as our interests. There was almost no subject we could not twist around so that we could find relevant quotes to respond to the initial proffer quote. For example, the week Bechtel Corporation, a worldwide engineering company, announced it was going to build a campuslike facility in nearby Frederick, Maryland, we began with alternating verses from Whittier's "Barbara Frietchie," which took place in Frederick. We followed with quotes that were both directly and indirectly applicable to the Civil War. They included Abraham Lincoln's Gettysburg Address and his Second Inaugural, Robert Frost's "The Gift Outright," Vachel Lindsay's "Abraham Lincoln Walks at Midnight," Tennyson's "Charge of the Light Brigade," "Battle Hymn of the Republic" and Whitman's "O Captain! My Captain!" The week following Irving Berlin's death we had no trouble recalling more than a dozen Berlin favorites including "God Bless America," "White Christmas," "Easter Parade," "The Girl That I Marry" and "There's No Business Like Show Business".

Just before our sixty-fifth birthdays, at Bill's suggestion, we experimented with taking quotation gamesmanship to a higher level than I thought possible. At two luncheons, before and after the meal itself, we tried to conduct our entire conversation in quotations. It was an enjoyable, mind-stretching exercise. We had proved something to ourselves. But two times was enough.

We made up the rules as we went along. Neither of us had previously played a similar game. Bill, who enjoyed brain games of all sorts, admitted he had thought about it off and on through the years. But until he was in his middle sixties, he had been unable to find a willing playmate.

The rules were liberal. Any poem, song or rhyme that mentioned food, a meal or something edible was adequate for describing the simple luncheon fare on the table. There did not have to be direct connections with the meal we were eating or type of food we were being served. Although we often had a light beer with lunch, we ruled out drinking songs. As we saw it, wassailing ballads were special and different.

We would alternately recite familiar verses about food or eating until one of us ran dry. Then we would find a new topic, like the couple at the next table, the weather outside, the faux flowers on our table or maybe the waitress's décolletage. As in our post-tennis poetry game, the main objective was to keep the conversation going.

While waiting for our food to be served, I began with the Twenty-third Psalm, which may have been the first food quote either of us learned. Memorizing psalms was part of public school curriculums in both Philadelphia and Shorewood in the early 1930s:

Thou preparest a table before me in the presence of mine enemies;
Thou anointest my head with oil; my cup runneth over.

Bill followed with the soup song from Alice in Wonderland, a long leap from the psalmist's death contemplation.

Beautiful soup, so rich and green,
Waiting in a hot tureen!

When it was my turn I chose another non sequitur food reference from Rodgers and Hammerstein's Oklahoma!:

The corn is as high as an elephant's eye An' it looks like it's climbin' clear up to the sky

Including short breaks to eat our lunch and sip our beers, we were able to sustain sequences about food for half an hour. Quotations about eating are part of every literary genre, including nursery rhymes like "Peter, Peter, pumpkin eater" and "Little Miss Muffet sat on her tuffet, eating her curds and whey."

Both times we played our game at the Two Quail, a small, unostentatious eatery near the Supreme Court. The proprietor always sat us in a nook at the rear of a back room. This meant that old friends did not stop by our table while we were playing our game.

One of our longest sequences also provided the most laughs. It focused on a uniformed naval officer and a fashionably dressed, obviously younger woman at a nearby table. I began with the opening lines of Coleridge's "Rime of the Ancient Mariner," and Bill followed with a complete stanza from Gilbert and Sullivan's H.M.S. Pinafore, and then I with "Anchors Aweigh," the Naval Academy fight song. Then we both focused on the officer's strikingly handsome companion. I started with the lines about the colonel's lady and Judy O'Grady being sisters under their skins from Kipling's "The Ladies." Bill countered with "The Lady Is a Tramp." We continued in this vein with Bill quoting a few lines from a Lutheran hymn about the "beautiful face of the Blessed Virgin," and my closing it with Ogden Nash's

Candy Is dandy But liquor Is quicker.

After we had proven to ourselves that we could sustain a luncheon conversation with quotations, it was time to move on. Lunches were more fun if they were just casual guy talk.

We had known each other less than a year when we made a very important nonliterary discovery while chatting after tennis. Friedrich Hayek's The Road to Serfdom had played a seminal role in both of our intellectual lives.

While discussing a Washington Post article about Arlington's powerful planning commission, and the orderly way our community had developed since it was first crisscrossed by subways, Bill made what appeared to be a casual, offhand remark. Arlington's experience with central planning was unique, he said. It would take more than a few decades to judge its success fairly. Friedrich Hayek, one of his favorite contemporary thinkers, thought most government planning was dangerous, he continued. (With the passage of time I have become convinced that Bill's reference to Hayek was not casual at all but carefully calculated.)

In any event, Bill's remark struck an immediate chord with me. After a few minutes of follow-up, we knew we shared another strong bond. Hayek's books undergird much of both Bill's and my economic and political philosophy. The significance of this discovery — for both of us — cannot be overstated.

Hayek's explanation of how a charismatic leader almost imperceptibly changed Germany's democratic government into a totalitarian dictatorship is rational, intellectually neat and appealing. In The Road to Serfdom he tells how Hitler's National Socialist Workers' Party (Nazis) and Mussolini's Fascist organization both came into power by winning legitimate elections in operating democracies. They sponsored programs of government largesse, palliatives for poverty and economic central planning. The program benefits were regularly enlarged and enhanced. They were popular. But, as Hayek perceived it, Hitler's and Mussolini's extravagant social welfare programs represented the first steps on the road to serfdom. Individuals had ceded to the state control over their economic well-being — in many instances total control — in exchange for handouts and financial security. Unintentionally and innocently, the Germans and Italians exchanged their personal freedom for doles from the public treasury. These generous and popular social welfare programs were fundamental factors in snuffing out nascent democracies, as Hayek saw it.

Perplexity about what happened to democracy in Europe in the 1930s and 1940s was an important part of the intellectual baggage we carried with us when we became soldiers in 1943. What went so terribly wrong in Germany in the 1930s and 1940s? Slightly more than six years separated Adolf Hitler's democratic election as chancellor of the Third Reich and the beginning of World War II. In that period, a country that epitomized the Enlightenment's culture and sophistication became a nation of monstrous barbarians. I have repeatedly asked myself that question. It will continue to bother me until my dying day.

Hayek did not attempt to assess the merits of particular government-funded social welfare regimes, many of which he believed were appropriate and beneficial, including subsidy for the aged and unemployment insurance. Rather, he attempted to show that there was a reciprocal relationship between the growth of taxpayer-funded social programs and the diminution of personal liberty.

Bill and I first read The Road to Serfdom in 1945 when we were lonely soldier boys. I was a corporal assigned to an isolated gasoline pumping station near Verdun in the Ardennes region of France. Bill was a also a corporal. He was assigned to an isolated weather station in the Atlas Mountains near Marrakesh, Morocco. We were searching for ideas of the kind of world we wanted to come home to.

To fully appreciate Bill's and my abiding respect for The Road to Serfdom, it is necessary to understand the circumstances that put us in desolate outposts at the edge of a French forest and in the foothills of a Moroccan mountain range. We were there because a federal statute, enacted in 1943, shortly after our eighteenth birthdays, required that all healthy eighteen-year-olds either volunteer for a particular branch of military or be conscripted into the Army. America's democratically elected government had arbitrarily taken away our liberty and incarcerated us behind barbed wire and guard towers. We had time to read books at dreary bivouacs in Europe and North Africa because the United States Army thought it could best use our talents there. At any time, without advance notice or explanation, a low-level military bureaucrat could have ordered us moved to another location where the odds favored our bodies being maimed or our lives being extinguished. These orders could not be questioned or challenged. There were no appeals.

Future generations will never fully understand the profound dread of government power that became part of the basic thought processes of boys who graduated from high school in 1942. We were patriotic. We loved our country. But we were scared. We had no control over our future. We knew that the selection process for dangerous missions was often irrational and/or random.

A book about how strong, powerful bureaucracies — military and civilian — can destroy electoral democracies found a natural audience in an army made up mostly of conscripted soldiers. Government power had turned our lives upside down — and we feared it.

The Road to Serfdom was one of the most popular books distributed to soldiers and sailors during World War II. The Reader's Digest condensed version went to more than one and a half million servicemen and women in war zones outside the United States. Young men who had never before read a book about political philosophy read it — and talked about it. They developed an understanding of how democracies can be transformed into dictatorships. They knew that their own government could arbitrarily assign healthy men in the flower of youth to almost certain death.

Bill's and my admiration for the classical liberal philosophy of Friedrich Hayek extended beyond The Road to Serfdom, but it remained one of the foundations on which our philosophy of government was built. Margaret Thatcher, who was born almost exactly one year after us (on October 13, 1925), was introduced to The Road to Serfdom when she was a student at Oxford, and the Luftwaffe brought the terrors of war directly to Britain. Throughout her public life she told audiences that Friedrich Hayek's slim volume was one of the cornerstones of her political philosophy.

It was not until I began writing this book that I learned that in 2001 Bill had told a national TV audience what an important role The Road to Serfdom had played in his intellectual development. During an interview on C€‘SPAN's Booknotes, Bill and Brian Lamb, the program's host, had this exchange:

BL: Can you remember when you began to form your own views of the world .€….€….€…?€…Did you have an early ideology of any kind? A political following?

WHR: I don't think so. I remember feeling when I was in high school that a couple of the social science texts we had were what we would call today "brainwashing." They tended to be slanted in one way. But, you know, it was not a big item in my life at all.

BL: In those early years, when did you have somebody that you really followed, somebody that wrote or a founding father or somebody in history?

WHR: The first really controversial or advocacy book I ever read was when I was in the Air Force. [sic] And it was Friedrich Hayek's The Road to Serfdom. I was used to just textbooks that would set forth a bunch of facts, and you're supposed to memorize the facts and recite them back on the test. But this book was an advocacy book trying to show that state planning and socialism and that sort of a thing didn't work economically and was dangerous politically. And it made quite an impression on me.

While there was nothing secret about our post-tennis poetry game, over time it forced us to disclose to each other a great deal about our intellectual interests, our preferences, our biases and the depth of our knowledge on a wide variety of subjects. What we had learned about each other cannot be easily articulated or neatly summarized. It was disorganized and random, revealing and penetrating. It also had a by‑product: true friendship.

Copyright © 2009 by Herman J. Obermayer