Underneath Their Robes: Bench-Slapped: Souter v. Rehnquist!

Welcome to the latest installment of Bench-Slapped! Article III Infighting. In this section of her blog, Article III Groupie describes, in loving detail, fights and feuds within the Article III judiciary.

In this recent post, A3G propounded a number of UTR Discovery Requests to her readers. She received helpful and interesting responses to all three of them, which she will be sharing in this post and future posts.

In her first inquiry, A3G noted that Justice David H. Souter did not attend the memorial ceremonies for the late Chief Justice William H. Rehnquist that were held at the Supreme Court last Tuesday. Furthermore, unlike all of the other justices, Justice Souter declined to issue a tribute to the late Chief. As noted here, a Court spokesperson pointedly declared that "[a] statement from Justice David Souter is not expected." And sure enough, the Rehnquist tribute statements from the justices now collected on the Supreme Court's website do not include one from the #4 Male Superhottie of the Federal Judiciary.

This led A3G to wonder: What gives? Was Justice Souter essentially telling his deceased former boss to "suck his gavel"? Was there perhaps some bad blood between Justice Souter and Chief Justice Rehnquist?

Some of you are probably thinking right now, "A3G, you are nothing but a catty s***stirrer. There is no good-faith basis for thinking that Souter and Rehnquist didn't get along. Why must you persist in your effort to transform the dignified halls of One First Street into the bitchslap-happy precincts of Wisteria Lane or Melrose Place?"

Now, A3G may in fact be a catty s***stirrer -- but it's not because of her curiosity about Rehnquist-Souter relations. A3G wasn't the only blogger to wonder about the lack of a tribute to the Chief from Justice Souter. Well before the thought even crossed A3G's mind, the distinguished Professor Ann Althouse wondered the same thing on her blog. And numerous posters over at Free Republic also speculated on the subject. So there!

In response to A3G's request for information, what did her readers have to say? Sure enough, some tried to downplay or dispel any notion of Souter-Rehnquist hostility (boring). One correspondent directed A3G's attention to this article, which notes that Justice Souter did attend the Rehnquist funeral last Wednesday at St. Matthew's Cathedral, and that he was in New Hampshire last Tuesday, when the ceremonies at the Court were held. But answering the question "Why wasn't Souter at the Rehnquist service on Tuesday?" with "Because he was in New Hampshire" makes about as much sense as answering the question "Why didn't A3G go to the gym this morning?" with "Because she was in bed."*

Another UTR correspondent reminded A3G about this NYT piece by Linda Greenhouse (which A3G was already aware of, having linked to it in this earlier post). This correspondent suggested that Souter's discussion of Rehnquist's death with the Femme Fatale of One First Street somehow evinced sadness at the Chief's passing. But closer scrutiny of the article reveals that Souter's interview with Greenhouse actually cuts in the opposite direction: nothing in his remarks to Linda G. reflects any mourning or sense of loss. Consider these excellent observations by Gerry Daly of Daly Thoughts (posting a comment at Althouse):

Given that Souter *did* issue a statement following the passing of Justice White, and given that Souter *did* talk to a reporter about Rehnquist's death without saying a single phrase that could be considered a form of a eulogy or tribute, and given that Souter had been in touch with the Court enough that the spokesman knew enough to say that a statement would not be forthcoming, I am going to assume that there was some animosity, at least in one direction, in their relationship.

An exceedingly insightful point (emphases and links added by A3G).** Furthermore, Justice Souter also issued a statement after the death of Justice Brennan. Justice Souter's statements after the deaths of Justices White and Brennan pretty much torpedo any patently pathetic, laughably lame explanation for Souter's silence along the lines that "Justice David Souter is a deeply private person who believes that grieving is a deeply private matter," etc.

In short, Justice Souter's silence about Chief Justice Rehnquist speaks louder than words. And what is it saying, you ask? Well, what's the sound of one hand bench-slapping?

So clearly there is something going on in terms of Justice Souter's feelings towards the late Chief Justice Rehnquist. As Seinfeld might have quipped, "Souter and Rehnquist -- what's the deal with that?" A3G's own pet theory can be summed up in three words: Bush v. Gore.

As noted in the infamous Vanity Fair article, Justice Souter spent "days in his chambers brooding over the case" and was "depressed" in the wake of the decision. Clearly DHS was emotionally invested in that landmark litigation. Is it so unreasonable to think that Justice Souter, still despondent and angry over the outcome of that case, simply could not bring himself to honor the man who led the Court through what was, in DHS's view, a delegitimizing fiasco? Hmm...

As always, A3G welcomes the thoughts of her readers (either as comments to this post or via email).

* Indeed, even the reader who wrote A3G about this Times article had to concede that "the ride from New Hampshire is a bit closer and a bit more doable on short notice than the trip from China" -- where Justice Kennedy was traveling at the time, which (legitimately) prevented him from attending the Tuesday ceremonies at the Court.

** Additional comments to the same Althouse post include two "Top 10" lists of "Reasons Why Souter Issued No Statement on Rehnquist's Death." These lists are highly entertaining and well worth reading. (A3G's favorite reasons: "(4) Never forgave Chief for not being 'Deep Throat.' (3) No, the other 'Deep Throat.'") But neither list offers any serious explanation for Justice Souter's pointed failure to issue even a generic statement about the Chief's passing (which one of the brilliant Souter clerks could have drafted up in all of five minutes).