Michael C. Dorf : The Big News in the Rehnquist FBI File: There is None

[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.]

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. Column continues below

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."...

[The author dismisses the charge that the chief justice was a hypocrite.]