The Big News in the Rehnquist FBI File: There is None

By MICHAEL C. DORF
Monday, Jan. 15, 2007

Revelations from the recently-released FBI file of the late Chief Justice William Rehnquist have had legal observers all atwitter over two particularly salacious details: First, that Rehnquist had a long-time addiction to a prescription drug; and second, that while he was hospitalized for back pain, his too-rapid detoxification rendered him temporarily paranoid.

I like good gossip as much as the next Court watcher, but I find nothing especially salacious here. The truly big news in Rehnquist's FBI file is that there simply isn't much news about Rehnquist there.

To be sure, the file reveals that both Presidents Nixon and Reagan authorized the FBI to investigate witnesses they expected to testify against Rehnquist's confirmation (first as an Associate Justice in 1971, and then as Chief in 1986). Such a politically- motivated use of law enforcement would have been a clear abuse of power, although notes on the file--in the handwriting of J. Edgar Hoover himself--may suggest that at least in the first investigation, agents were supposed to gather information about witnesses regardless of whether they planned to testify in favor or against confirmation.

With respect to Rehnquist himself, however, the FBI file adds surprisingly little to a balanced assessment of his judicial career. Supreme Court Justices do their most important work in the very public setting of the opinions they write. The knowledge that Rehnquist struggled with pain and addiction may cause us to feel sympathy or even admiration for him. Or it may cause us to shake our heads, bewildered that he could vote to uphold long prison sentences for people who had fallen prey to the same weaknesses he had.

Yet, at the end of the day, Rehnquist's opinions speak for themselves.

Rehnquist's Drug Use

Most of the story of the late Chief Justice's drug use was known before the release of his FBI file. It was not widely discussed, however, and the file fills in some details.

At some point before 1972, Rehnquist was prescribed Placidyl, a sedative-hypnotic, for back pain. He used it more or less continuously for about a decade, taking three times the typical dose. Experts question whether Placidyl should have been prescribed in the first place, and nearly all agree that it should not have been prescribed for long-term use.

In 1981, Rehnquist checked himself into a hospital because the drug was no longer treating his pain effectively, and because he feared he had become dependent on it. Going cold turkey caused him to behave bizarrely and to become paranoid. When the doctors realized that these were symptoms of withdrawal, they quickly reintroduced Placidyl, and then gradually tapered the dosage so that Rehnquist was able to kick the habit. He struggled with back pain for the rest of his life.

The Drug's Impact on Rehnquist's Ability to do the Job

Well, so what? Did Rehnquist's addiction to Placidyl have any impact on his work as a Justice? The answer is maybe a little, for a short period.

During the months before Rehnquist entered the hospital, courtroom observers noticed that his speech seemed slurred, and that he sometimes had difficulty completing sentences. That could have reflected an underlying drug-induced neurological issue that affected his judgment, but it may not have. Thousands of highly-intelligent professionals have speech defects of one sort or another, but their minds remain crystal clear. To give just two examples, the late moral philosopher John Rawls spoke with a pronounced stammer, and Stephen Hawking, the greatest cosmologist of our age, cannot speak comprehensibly at all without the aid of a computer voice synthesizer. It is possible that Rehnquist's apparent outward manifestations of impairment had no impact at all on the inner workings of his mind.

Then again, it is also possible that Rehnquist's judgment really was impaired for some of the time that he was addicted to Placidyl. As David Garrow wrote in a 2000 article in the University of Chicago Law Review, law clerks can cover up the "mental decrepitude" of a Justice for years. Still, based on what was known about Rehnquist's drug addiction then, Garrow characterized Rehnquist's behavior on the bench as giving "only the appearance of diminished capacity."

Instances of actual incompetence by Justices--most notably, that of Justice William O. Douglas, whose colleagues would not let him cast a decisive vote after his debilitating stroke--have tended to become public knowledge. Yet none of the Justices, law clerks or others who served with Rehnquist have so much as hinted that his Placidyl addiction affected his work, beyond its impact on his speech. Accordingly, while it remains possible that the addiction did have such an impact, the FBI file provides no evidence for that conclusion.

Was Rehnquist a Hypocrite?

Rehnquist's addiction may nonetheless affect our assessment of his career, because it seems at odds with his jurisprudence. Throughout his judicial career, Rehnquist was unsympathetic to claims of criminal defendants caught up in the "war on drugs."

For example, in the 1991 case of Harmelin v. Michigan, Rehnquist voted to sustain a life sentence without possibility of parole for someone who possessed a little over a pound of cocaine. Worse still, he joined an opinion by Justice Scalia in that case which said that the Constitution imposes no limits on disproportionate state sentences. Under this view, possession of even a small quantity of cocaine--or, for that matter, Placidyl--could be made punishable by lifetime imprisonment without parole.

Rehnquist's critics can legitimately ask how, just a decade after he himself had been a drug addict, he could vote as he did in Harmelin. Where was his compassion? Where was his recognition that, but for the grace of his position as Chief Justice of the United States, he might have been purchasing his fix from the likes of Harmelin?

These are legitimate questions, but we did not really need to know that Rehnquist was addicted to Placidyl in order to ask them, or their equivalent. With rare exceptions, Supreme Court Justices are drawn from the nation's professional elite. Yet they construct rules for all of us, including those with very different experiences and opportunities.

For example, to my knowledge, none of the Justices (including Rehnquist) in the majority in the 1990 case of Employment Division v. Smith--which permitted the state of Oregon to deny a religious-based exemption from its peyote ban--was a teetotaler. How could those who use alcohol socially or in religious rituals deny others an equal opportunity to use their preferred mind-altering drug in their religious rituals?

I do not mean to suggest that the private details of a public figure can never provide grounds for discrediting his work. Learning that an anti-gay preacher has clandestine same-sex relationships may lead one to doubt his claim that God wants such sinners to burn in hell. Likewise, learning that an exponent of free market capitalism made his fortune aided by government largesse may lead one to doubt the ease with which fortunes can be made.

But in Rehnquist's case, the fact that he became addicted to Placidyl adds little to our picture of his jurisprudence. One needs no secret decoder ring to discover, in plain view, Rehnquist's austere philosophy. He proudly stated it, as in the 1989 case of DeShaney v. Winnebago County Social Services Dep't. There, a two-year-old boy was repeatedly beaten by his father to the point of permanent and severe brain damage, while the county social services department dutifully recorded the damage but did not intervene. Chief Justice Rehnquist wrote for the Court that "judges and lawyers, like other humans, are moved by natural sympathy in a case like this to find a way for Joshua and his mother to receive adequate compensation for the grievous harm inflicted upon them. But," he went on, "before yielding to that impulse, it is well to remember once again that the harm was inflicted not by the State of Wisconsin, but by Joshua's father."

I do not quote this language because I think the decision was clearly wrong. DeShaney was a legitimately difficult case about the point at which state indifference to private action that the Constitution does not regulate becomes unconstitutional "state action." My point is simply that Rehnquist believed that to do his job correctly required him to suppress any "natural sympathy" that his human feelings aroused. That attitude likely extended as well to any sympathy that his experience as a Placidyl addict may have generated.


Michael C. Dorf is the Isidor & Seville Sulzbacher Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century and he blogs at www.michaeldorf.org.