First Among Equals by Kenneth W. Starr Read Free Book Online

solitary dissent. His lectures at law schools railing against judicial excesses likewise were now a thing of yesteryear. Instead of continuing the conservative fight, his long-standing interest in history came to the fore. Chief Justice Burger had read widely, especially in history and biography. But Rehnquist not only read, he wrote. He turned out a charming book on the Court published in 1987. After that successful initial outing, and in a remarkable twist of irony, he began to steep himself in the history of impeachment. Little could he have sensed that he was preparing himself for his own role in presiding over the 1999 Senate impeachment trial of President Clinton.
    Not only had he turned to more genteel pursuits, Rehnquist soon showed that his philosophy of judicial restraint had an unexpected effect. Other than
Roe v. Wade,
few issues so inflamed Reagan administration lawyers as those involving federalism and separation of powers. The principles emphasize, respectively, (1) the rights of states to carry on their policies free from federal interference and (2) the separation of powers at the national level among the executive, legislative, and judicial branches. These were seen as seminal conservative principles. Terry Eastland, a Reagan administration alumnus, later wrote a book about the importance of a strong executive branch, drawing from ideas first put forth by Alexander Hamilton, titled
Energy in the Executive.
Part of the received wisdom was that Congress was ever seeking to aggrandize its power, particularly at the expense of the executive branch.
    This presumption carried over into the Bush administration. When coming on board as solicitor general, I was summoned over to the White House on one occasion to meet with Boyden Gray, counsel to the president. The sole subject of discussion was separation of powers. This was discussed generally, not in the context of a specific case. Gray made this clear: Restoring the balance between Congress and the president was an overarching concern requiring the careful attention of senior lawyers in the executive branch.
    The Burger Court had struck down as unconstitutional important congressional initiatives—which the executive branch regarded as power plays—such as the long-used legislative veto (whereby a single House, or even a single committee, invalidates a set of agency regulations). But soon after Rehnquist became chief justice, the Court handed the Reagan administration a bitter separation-of-powers defeat. The Court held that the independent-counsel law, already enshrouded in controversy by virtue of Judge Lawrence Walsh's unfolding investigation into Iran-Contra, was
not
unconstitutional.
    The omens had seemed favorable finally to rid the system of this unwanted post-Watergate “reform.” The Reagan administration had early on disagreed with the independent-counsel law, and urged that it be allowed to lapse—in testimony before Congress presented by future mayor and then Associate Attorney General Rudy Giuliani. And then the D.C. Circuit had struck it down, albeit by a 2–1 vote. Impressive voices, such as those of former Attorneys General Griffin Bell, Edward Levi, and my former boss at the Justice Department, William French Smith, condemned the law as misguided and unconstitutional. The United States—through the solicitor general — argued that the independent-counsel law improperly invaded the sphere of the executive branch in a core constitutional function: carrying on criminal investigations and making prosecutorial decisions based on those investigations.
    Nonetheless, Chief Justice Rehnquist voted to uphold the law. Even more, he wrote the majority opinion and did so in a worrisome way. He invoked a vague sort of balancing test, an approach ordinarily anathema to conservatives, who prefer articulation of clear principles and faithfully sticking with them. A man who had once headed the office where executive branch power is most zealously guarded,