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Supreme Sorrow

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.


They stood there on the steps of the Supreme Court and with grim faces and a few tears watched their dead friend pass by them in a flag-draped coffin.

For a few poignant minutes Tuesday morning, six of the eight most powerful judges in the world were reduced to mere colleagues, mere mortals, all in varying stages of older age and diminishing health.

The late Chief Justice William H. Rehnquist's final act at the Court was to remind the nation and the world of the human frailty of the men and women whose orders and decisions cut like steel into the fabric of American life.

Adding to the sense of history and purpose, adding to the irony and the dignity and palpable sense of continuity represented by the ceremony, the man chosen by President Bush to succeed the late Chief Justice was one of his pallbearers. Looking as somber as he did Monday when he was nominated for the top spot on the Court, John G. Roberts, Jr. took hold of his former boss's casket along with seven other former law clerks as they strode up the steps of the Supreme Court.

Each of them seemed deep in thought; each struggling a bit to walk up the same grand marble steps that Roberts spoke so eloquently about that night in July when he was first nominated for Justice Sandra Day O'Connor's spot.

No man may be above the law. But that doesn't mean that the law doesn't bring men and women together, in sickness and in health. Roberts first met his boss in good times back in the early 1980s and leaves him sadly like this, nearly a generation later, on the eve of his own accession as the 17th Chief Justice of the United States.

There is a brotherhood and sisterhood in the law that is barely perceptible to those outside of it. And there always has been. Today, on the day that the Chief Justice's body was placed upon the Lincoln Catafalque in the Great Hall of the great Court, those bonds were visible, raw and searing.

Justice O'Connor, for example, dabbed away tears as the body of her old law school friend passed by. She soon will leave the Court herself in order to spend more time with her ailing husband.

Was she thinking of those days long ago at Stanford University when she and Bill Rehnquist met? Was she thinking of the days earlier this year when she announced her own retirement? Was she thinking of how fortunate she was to have left the Court on her own terms instead of the way her friend did? Or was she thinking of all three.

We will never know but I will never forget the image of her today as the reality and the finality of the Chief Justice's death hit her.


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.

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