Commentary: John Roberts’s quiet homage to William Rehnquist

As my title indicates, that is the way to understand the Court’s opinion Monday in the relatively low-visibility case Marvin M. Brandt Revocable Trust v. United States, about who owns rights-of-way the government granted railroad companies, to facilitate railroad construction in the nineteenth century, when a company abandons those rights.  Sounds obscure, right?  So why did Chief Justice John Roberts assign himself this nearly unanimous (eight-to-one) opinion for the Court, out of all the majority opinions he could choose to write from the January sitting?  That sitting offers at least three much more significant outstanding cases (National Labor Relations Board v. Noel Canning, McCullen v. Coakley, and Harris v. Quinn); although Chief Justice Roberts would have to be in the majority to assign the opinion, he has plenty of options, yet chose this one.

The clear answer, in my mind, is that the Brandt opinion is a subtle gesture of respect and affection for his former boss and predecessor, the late Chief Justice William Rehnquist.  In 1979, when Chief Justice Rehnquist was an Associate Justice, he wrote a classically Rehnquist opinion in a case called Leo Sheep Co v. United States.   Rehnquist was fascinated with American history, and that opinion begins with an elegiac, powerful, and unusually extended historical saga of the role of the railroad in the development of the West (along with the legal issues involving public grants of easements that were central in both cases).  The Rehnquist opinion is so compelling that it is a principal case in one of the leading casebooks on statutory interpretation, the Eskridge, Frickey, Garrett Legislation book.  Chief Justice Roberts became Justice Rehnquist’s law clerk in 1980 and would no doubt have intimate familiarity from nearly thirty-five years ago with the decision his boss had written shortly before Roberts arrived to clerk..  And Roberts gives Leo Sheep a starring role in yesterday’s opinion – it is both the first and the last case cited in yesterday’s opinion; it is cited four times overall; and it forms one of the two central precedents on which the Roberts opinion relies.  Beyond that, the opening several pages of the Roberts opinion is modeled on the opening pages of the Rehnquist opinion; like the latter, the Chief Justice’s opinion starts with the same aura of historical saga (“In the early to mid-19th century, America looked west.”).

In choosing to write this opinion, the Chief Justice reflected the arc of his own career and nodded to the man who helped launch that career and whom the current Chief Justice respects greatly.