John Roberts grieves for his mentor.

The law, lawyers, and the court.
Sept. 7 2005 5:32 PM

The Mourning After

John Roberts grieves for his mentor.

Roberts carrying Rehnquist's casket 
Click image to expand.
Roberts carrying Rehnquist's casket

What's going in John Roberts' head right now, and what's in his heart? I don't mean what are his views on the constitutional right to privacy, or the scope of Congress' power under the Commerce Clause. I mean the distinctly personal reaction to the death of his mentor, the man who changed his life more than any other person in his professional life, the man he now is poised to succeed as one of the few people to hold the post of chief justice of the United States.

Looking at the photos and video of Roberts as he carries the casket and stands near the body, I am struck by his demeanor and his grief. He is truly bearing pall as he slowly mounts the steps of the Supreme Court with his hand gripping the coffin—the very steps he referred to the night he was first nominated by President Bush; the steps he says he never climbs without a lump in his throat.

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There is no more moving a professional relationship than that between a law clerk and a Supreme Court justice. As a place to work, the court is unique in its intimacy and intensity. Most justices have only four clerks each term, but Rehnquist had three for a long time. There is no bureaucracy mediating the relationship between justice and clerk—no layers of posturing aides pulling up the ladder behind them. The power of the justice is final and absolute, or as absolute as one vote among nine can be. The internal proceedings are confidential, and only the clerks and justices are privy to them. The experience is limited in time, usually just one year, officially, just one term of the court, which makes it fleeting as the year unfolds. And the clerks generally are fairly young—in their 20s—and have been selected from reams of outstanding applicants by a justice for his or her own reasons; a selection that the clerk knows may well change his life, just as it changed the life of Roberts, a young law-school graduate from Indiana when Rehnquist chose him for the 1980 term.

Relationships between justices and their clerks vary, of course, depending on the particular justice and the particular clerk. But there always is, at a minimum, a powerful bond that is built in that momentous year they share. And, when a relationship between a justice and clerk is particularly close, as seems to have been the case with Roberts and Rehnquist, the bond is about as supercharged as any nonfamilial relationship can be.

All this and more, much more, must now be raging within Roberts. Only four previous Supreme Court justices have been law clerks at the court—Byron White, Rehnquist, John Paul Stevens, and Stephen Breyer. The influence on these former-clerk justices of the justices for whom they once worked is profound. Stevens speaks and writes reverentially of the little-known Wiley Rutledge more than five decades after his clerkship. Breyer fondly invokes the short-tenured Arthur Goldberg.

But, for Roberts, the experience is even more striking and intense. None of those four previous former-clerk justices actually took the seat of the justice for whom he clerked, as Roberts is now poised to do. And none of those former-clerk justices became a chief justice when they joined the court. One-hundred-and-eight people have served before Roberts as a justice on the Supreme Court. Only 16 have served as chief, and Rehnquist, of course, was one of those 16.

Look at the face of Roberts carrying that casket. It's not the face he deployed in the "murder boards" preparing him for the confirmation hearing that should have started this week. It's not the face he's used practicing in front of mirrors for Supreme Court arguments. In the midst of the preening and posturing, and ritualistic antics, of a Senate Supreme Court confirmation hearing process, it's the face of human grief, raw and unadorned.

Cliff Sloan, the author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, is a partner at Skadden, Arps, Slate, Meagher, & Flom and a former publisher of Slate. He has argued five Supreme Court cases.

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