Supreme Sorrow

Cohen: A Day For Remembrance And Reflection At The High Court

(CBS) 
The coffin also passed by Justices Antonin Scalia and Clarence Thomas, the late Chief Justice’s ideological allies on the Court.

There was no glean in Justice Scalia’s eyes as their usually is when he bores in on a poor attorney arguing before the Court. There was only sorrow, as if a great weight had been placed upon his normally jaunty intellect and personality. Justice Thomas, meanwhile, was as stoic on the steps as he is on the bench, for oral argument after argument, over nearly 15 years of service.

Both of these men were thought by many to have been candidates to succeed Rehnquist as Chief Justice. Were they thinking about that as his body passed by? Were they thinking about how they will soon have to interact with their new “boss”—who is many years junior to both?

The casket passed last by Justice John Paul Stevens, now the most senior member of the Court both in age and length of his service on the Court. With the Chief Justice dead, and Justice O’Connor on her way out, all the retirement speculation now will center upon Justice Stevens until the day he dies or decides to announce his own retirement.

Stevens and Rehnquist were part of the same legal generation and they were both Republican appointees but while Rehnquist kept over the years his rightward tack Stevens never consistently followed in that direction. Indeed, one of the more marked measurements of the Rehnquist Revolution on the court and in the country is the fact that Justice Stevens was once considered a court conservative and now is one of its more consistently liberal votes.

Was Justice Stevens thinking of his own retirement as he saw the coffin move slowly up the stairs? Was he thinking about what it was like, a generation ago, to be one of the “young” guns, along with Rehnquist, on the Warren Burger Court? Was he thinking about some of the written battles he had, more recently, with those on the Court’s conservative wing?

And what about Ruth Bader Ginsburg and Stephen Breyer, the two most junior justices? They came to the Court as Clinton appointees in the mid 1990s and helped slant downward the crest of the conservative power of the Rehnquist Court. Were they thinking about the man or his mission; about life on the never-again-to-be-seen Rehnquist Court or about the future of the institution and those who serve it?

One thing is fairly certain. All six of the Justices in attendance (Justices Kennedy and Souter were not available) were thinking, at one point or another, about the younger man, Roberts, who is about to join them on the Court. He himself, the man now at the center of attention, stood soberly for a while in the Great Hall closest to a big bust of the late Charles Evans Hughes, one of the great Chief Justices of all time.

Ironically, it was Hughes who, nearly a century ago, said boldly and brashly: “We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our property and our liberty and our property under the Constitution." Of course, the debate over that concept will resonate next week at the Roberts’ confirmation hearing and well beyond it.

But that epic fight is for another day. Today was a day for sorrow and reflection at the High Court. Thousands of ordinary Americans braved the sun and the heat to stand in a line and pay their respects to the Chief. And tomorrow will be the day when the remaining Justices, and the Chief Justice’s families--real and legal, bury their leader.

Sorrow came to the Court today along with the body of the Chief Justice. And for a short time the dispassion and restraint we routinely see from our top judges left—a reminder, no doubt, that the law may be eternal but the people who dispense it are not.