by Bob Woodward
Newspapers had published details about $6,000 in fees that Burger had received in the last three years as a trustee of the Mayo Foundation, which operated the Mayo Clinic in Rochester, Minnesota. The ethics question had been overheated both by Warren and the press, Burger felt. He was determined to cool it off.
In early August, the Chief turned his attention to selecting the three law clerks who were to be added to the Court. They were going to solve a problem—lack of staff. The Court was flooded each year with thousands of petitions from people who did not have attorneys and could not pay the $100 filing fee for review. The petitions might be jotted on notebook leaves or on scraps of paper. They were sometimes illegible and often incomprehensible.
These petitions constituted the bulk of the approximately five thousand that came to the Court each year. They were called in forma pauperis petitions, or "I.F.P.'s." The Court got only one copy of each, rather than the forty that were required of those able to pay. Most of the I.F.P.'s were from prisoners who alleged a violation of their constitutional rights. All the Justices agreed that only a few petitions had merit, but Burger thought that all I.F.P.'s were a waste of time. In a 1965 Court of Appeals opinion (Williams v. U.S.), he had denounced the "Disneyland" contentions of those who had been found guilty and were still trying to get out of jail by raising technical objections.
The office of the Chief Justice was responsible for these I.F.P.'s. Generally, the petitions themselves did not go to each Justice. The Chiefs clerks wrote one-page summaries of each, and these were circulated to the other chambers. If the clerk who handled the petition believed the claim to be particularly meritorious, the whole petition might be circulated. The preparation of the summaries was tedious work, but the Warren Court had granted hearings in a few cases. They had in some cases been simply vehicles for the Warren liberals to "discover" some new right for prisoners or criminals in Burger's view.
As he was getting the Chiefs chambers organized, Burger's head law clerk reviewed a copy of a thirty-three-page set of instructions Warren had written for his law clerks that included a guide on how to prepare these I.F.P. memos. Burger's clerk edited the guide and sent it to the Chief for his okay.
Burger found no problems until he got to page 17, the section dealing with the clerks' responsibilities in preparing the summaries of the I.F.P.'s. Such summaries, the memo said, should pull together and accurately set forth the facts, issues and legal arguments that each petitioner had tried to make.
"Your secondary function," Warren's memo said, "is to present the arguments which petitioner could make based upon the facts of the case. That is, inasmuch as the I.F.P. petitioners generally do not have counsel, it is necessary for you to be their counsel, in a sense."
The Chief called in his head clerk. What's this? Burger demanded. This was a court, not the office of the public defender. That might be the way Warren's clerks operated, but it was not what his would do, Burger stated firmly. The Court was already overworked. It needn't look for more work. If some poor devil missed a point that might get his petition reviewed by the Court, well, that was his problem. In criminal cases, these people had already been found guilty and were looking for technicalities and loopholes to escape their just punishment. This secondary function would be ignored, Burger declared. Only arguments that had been identified by the petitioner would be summarized and sent to the other chambers.
Burger's clerks believed he had effectively devastated the Court's role as the last bastion of hope for these people. Without knowing any law, most petitioners had little chance of catching the Court's attention. The I.F.P.'s, however, were only one example, in Burger's view, of how law clerks had come to have too much power and influence.
He knew from his days at the Court of Appeals how clerks occasionally worked their little subterfuges. They could not be trusted to exercise proper judgment. Something had to be done about the clerk network. To combat this traditional underground inter-chamber communications system that Burger viewed as a rumor mill, he modified a memo on confidentiality from the previous term at the Court of Appeals. It was issued by his own senior clerk on August 12, only to his own law clerks.
CONFIDENTIAL
law clerk memorandum— the confidentiality obligation
. . . The confidentiality is not limited to the minimum and obvious aspect of preserving the security of all information within the Court. Equally important is the private nature of everything that transpires in the Chambers of the Justice, including what he says, what he thinks, whom he sees and what his thinking may be on a particular issue or case.
The memo noted that during the year, there develops "a communal professional life somewhat comparable to a large law firm." The various chambers, however, are not members of the same law firm, but rather different law offices coincidentally occupying the same building.
. . . some Clerks at times have had a tendency to develop a collective "Law Clerks'" decision to resolve cases on the merits before the Justices themselves have worked out the answers. Of special importance in this regard is the conversation which takes place in the Law Clerk Dining Room. Law Clerks generally view the lunch period as a unique opportunity to exchange insights and stories about their Justices. It has been customary for Law Clerks to discuss with one another the most intimate of matters relating to their Justices with the understanding that none of what is said shall go beyond the four walls of the Dining Room. While such conversation can be both educational and entertaining for the Law Clerks, the extent to which such information is not carried beyond the Dining Room is questionable.
Some of Burger's clerks thought the memo was reasonable so far. It continued:
Any matters of a confidential nature which tend to place the Chief Justice in an unfavorable light should not be revealed to other Law Clerks.
Despite the avowed confidentiality of the lunchroom, the possibility of unfavorable information being "leaked" to other Justices requires the Chiefs Law Clerks to be reticent
The Chief was worried not about leaks to outsiders, but about his clerks telling tales that would "leak" to his colleagues.
It is likely that information received from a Justice's own Law Clerk will both diminish his effectiveness with his colleagues and damage his public image more grievously than information received from other sources if only because it will be more highly credited.
Why would he assume that anything his clerks said would be negative? one of his clerks asked.
The Chief "does not want his views on a case—or those of his law clerk(s)—made known outside his Chambers until his final position is reached."
So, Burger's clerks were permitted to talk only to each other. They realized that they had just been dealt out of much of the fun and meaning of their clerkship, head-on discussions about votes and positions. They knew that traditionally clerks communicated openly and freely with their peers in order to better serve their Justice. Dissents had to be responsible to the majority opinions and vice versa. Research could be productively shared, language suggestions exchanged. These things were part of the process of improving their boss's final opinions. The next sentence took some of that away.
The Chiefs clerks are not to reveal which opinions they are personally working on.... The Chief Justice has a strict rule that suggestions are to be accepted from other offices only after another Justice has first considered the matter and then communicated directly and formally to the Chief Justice.
So they couldn't negotiate with the other clerks. No one could be told anything, and no other chambers would receive advance soundings on the Chiefs initial conclusions. They were to work under a bell jar, away from the flow of ideas and argument. The Chief, they concluded, had a view of the Court that implied that such interchanges corrupted rather than enlightened. Their disaffection grew. It was as if the Chief had pre-packaged legal values and did not want the normal give-and-take to sway either him or his clerks. Even to Burger's clerks, the memo reflected his deep insecurity over control and a
fear that somehow the clerks would try to manipulate him.
Burger had one more summer project. Earl Warren had feuded with and alienated the major organization of lawyers in the country, the American Bar Association. In 1958, the A.B.A. convention held in London included a committee report condemning the Warren Court for comforting the Communists and treading on states' rights.
Warren had responded by resigning from the association, becoming one of the few prominent lawyers in the country who were not members.
Resolved to reopen the lines of communication to the organized legal establishment, Burger attended the A.B.A.'s summer convention in Dallas. It could help him, and he could help it. He agreed to give four speeches. Introducing himself as "Warren Burger," he circulated through the crowds, hand outstretched. Everyone jostled to get close. Burger, the country's number-one judge, was on the hustings. He savored the role, buttonholing, glad-handing, softening his image as the "law and order" judge. He dined privately with Mitchell and the A.B.A. president. His speeches and private talks were calculatedly moderate and drew standing ovations. There was a message. A new "partnership" had been born among lawyers, judges, and law professors, for so long considered separate components of the legal world, often with sharply differing views. The Chief promised to attend A.B.A. sessions "for the rest of my days."
After the convention, Burger flew to Los Angeles to attend a dinner that President Nixon was giving to honor the first astronauts to have walked on the moon.
On August 29, Hugo Black was resting in his landmark federal house in the Old Town section of Washington's suburb of Alexandria, Virginia. Black's chambers had just received a petition requesting that he intervene to prevent delay of racial desegregation in thirty-three Mississippi school districts (Alexander v. Holmes County Board of Education). He was being asked to act alone as the supervisory Justice for the Fifth Circuit Court of Appeals, which covered the Deep South. Each Supreme Court Justice was assigned to one or more of the eleven federal appeals courts, and was responsible for dealing with special and emergency petitions.
At eighty-three, Black was the Court's oldest Associate Justice and its senior member. Thirty-one annual pictures of the Justices circled the wall above the bookshelves in the second-story study of his house. Shriveled and slightly stooped, Black had for years amazed everyone with his vitality. Until the previous month, he had played several sets of tennis each day on his private court. But now he was about to begin his thirty-second term in rather poor health. He had- recently suffered a stroke while playing tennis, a fact that had not become public. He had recovered quickly, but the illness had left him weaker. He also had trouble remembering things that had just happened.
Black, born in Clay County, Alabama, only twenty-one years after the end of the Civil War, was an ardent, almost militant, supporter of school desegregation. He had generally approved the efforts of the Fifth Circuit Court of Appeals over the last fifteen years to implement the Supreme Court's desegregation decisions. The day before, the Fifth Circuit Court of Appeals had abruptly reversed course.
Earlier in the summer, the appeals court had asked the U.S. Department of Health, Education and Welfare to submit desegregation plans for the thirty-three school districts so it could order them implemented at the beginning of the school year. H.E.W. was in charge of drawing up the plans as mandated under the 1964 Civil Rights Act, and had submitted them on time. At the last minute, however, both H.E.W. and the Justice Department had asked for extensions until December 1, because, they claimed, the plans had been hastily prepared and would result in "chaos, confusion, and a catastrophic educational setback." It was the first time the federal government had supported a desegregation delay in the federal courts. To Black's astonishment and dismay, the Fifth Circuit had granted the delay, deferring to H.E.W.'s technical expertise. What was more, no specific date for implementing the plans for the actual desegregation had been set. Black saw the administration's move as Nixon's payoff to the South. This was part of the so-called "Southern Strategy" that had helped Nixon win the presidential election.
In spite of the Court's historic 1954 ruling (Brown v. Board of Education I) that segregated schools were unconstitutional, a great majority of schools in the Deep South had circumvented desegregation. A bitter fifteen-year battle had dragged the federal courts into disputes over the details of various desegregation plans. While the bickering continued, the schools remained segregated. There had been some progress in recent years, mostly in the border states, and largely as a result of prodding by H.E.W. and the Justice Department. A series of Supreme Court decisions during the last decade had nullified many of the evasive tactics that school boards had used to fight actual desegregation.
Black fretted over the Nixon administration's go-slow policy. Nixon's pronouncements during his campaign, as well as the winks, nods and private assurances, had fueled another drive of Southern resistance. Now the South had another excuse for delay and, it appeared, a powerful ally. So long as the government and the courts were involved in debating plans, there would be protracted litigation. The pace had already been far too slow.
Black loved the South. A staunch New Dealer and a Southern populist, he was Alabama's senior Senator in 1937, when Roosevelt chose him for the Court. As a young man Black had briefly been a member of the Ku Klux Klan, but he had been, in fact, always a progressive on race relations. He had learned much about the subtleties of this matter as a rising politician. He considered the Court's desegregation decisions as among its most important. It pained him to see the agony that Southerners, both white and black, endured as a result of the Court's rulings. And it hurt him, too, that many white Southerners thought him a traitor. Black blamed himself in part. He had given in to Justice Felix Frankfurter's demand that the phrase "all deliberate speed" be included in the Court's 1955 ruling {Brown v. Board of Education II) to set the rate at which school systems must desegregate. That was language for lawyers and it had been a grievous mistake. The phrase had given the South its weapon. For fifteen years lawyers had seized upon it to defy the law of the land. "I never should have let Felix get that into the opinion," Black often said to his clerks.
It had become an excuse for delay, and it had also thrust federal judges into the business of deciding which plans would work and which would not, which schedules were fast enough and which were not. Judges were running school systems and making decisions about school locations and the racial proportion of faculty members, matters in which they had no experience. Black felt that for the federal courts to assume this role was the old "tyranny of the judges." He had an abiding fear of judges exercising so much discretion, having seen them dismantle the New Deal and defend corporate power in the early 1930s.
Black had always advised both the other Justices and his own clerks to "go for the jugular," a word he pronounced in his soft Alabama accent to rhyme with bugler. He meant that cases weren't won or lost, nor was the law decided, on legal niceties. Judges might say they were, but that was never the real reason. In each case there was always a crucial issue to locate. The issue might be hard to find, Black said, but once found it must be addressed.
In this latest case (Alexander v. Holmes County Board of Education), it would be easy for Black to follow his own advice. The issue was that the Court's Brown decisions were not being obeyed, the pace of desegregation was too slow. So the question was how to prevail over an apparent loss of will by the usually firm Fifth Circuit Court of Appeals, as well as over an administration that was, at the very least, hedging.
Five days later, on September 3, Black received a memorandum from the Justice Department. Solicitor General Griswold was urging that Black permit the Mississippi delay. Griswold acknowledged that such a delay "means in most situations, another school year, and that is a tragedy and a default." But he argued that it was inevitable, because of the need to revamp student assignments and reschedule and reshuffle faculties.
Black found this request absurd. But as the single Justice acting on
the request to overturn the Fifth Circuit, he felt the need to proceed cautiously. He wanted to overturn the delay and order desegregation at once. Immediately. Technically he had the authority and could do what he thought was proper. But the full Court might not accept his position. If a majority disagreed, they would doubtless vote to hear the case during the regular term, and they might reverse him. Black wanted to avoid angering his colleagues. Douglas occasionally acted alone as Circuit Justice when there was no chance that his views would be supported by a majority. The full Court at times reversed Douglas, but the other Justices still resented Douglas's taking matters into his own hands.
There was another factor too: the new Chief Justice. Burger's record on civil-rights issues seemed decent. The new Chief had sought out Black's opinion on a number of matters over the summer, and Black had found him well-meaning and congenial. Still, Burger was clearly Nixon's man.