by Bob Woodward
Harlan said he agreed that delay should be rejected out of hand in strong language, but in a well-reasoned opinion. He would go along with much of what the Inc. Fund wanted—taking the case away from the federal district court in Mississippi and making sure there would be no long arguments over plans. But he was not going along with any notion of immediate desegregation. The Court— the Warren Court—had been criticized too often for its pie-in-the-sky views. Now the Burger Court had to show consideration for the realities. Instant desegregation was impossible.
Harlan also strongly disagreed with Black's notion that "all deliberate speed" was at the heart of the delays. Another phrase, or no phrase at all, would not have helped. The problem of achieving desegregation in the South was intractable, destined to take a long time no matter what the Court had said fifteen years before. But Nixon and his administration were also a new reality. Harlan was deeply suspicious of Nixon's motives. To affirm the Court of Appeals, as Burger seemed to favor, would send the wrong signal. Whatever the Court said, it should overturn the Court of Appeals. Harlan wanted to send a strong message to both Nixon and the South that the Court was not backing off. Then Harlan laid down his own challenge. He wanted unanimity, but if Black wrote a separate opinion, he too would write separately.
Brennan was disturbed to see the conference splintering. He agreed with much of what Black said, but one had to be practical. He wanted to stay in the middle. That had been his vantage point for years as the prime mover on the Warren Court. Physically smaller than his colleagues, Brennan was the most energetic advocate. He cajoled in conference, walked the halls constantly and worked the phones, polling and plotting strategy with his allies. He was thin and gray-haired, and his easy smile and bright blue eyes gave him a leprechaun's appearance as he sidled up and threw his arms around his colleagues. His warmth allowed Brennan alone to call the reserved Harlan "Johnny." It had been Brennan who had sat each Thursday with Warren preparing an orchestration for the Friday conference.
"Well, guys, it's all taken care of," Brennan often told his clerks after the sessions with Warren. With votes from Fortas, Marshall, and usually Douglas, Brennan rarely failed to put together a majority. He had dissented only three times the previous term, only thirty times in the last half decade. Now, with Burger replacing Warren and Black threatening to dissent, the situation looked bleak. So Brennan said little.
Potter Stewart spoke, and then Byron White. Both were upset by Black's threat, and his absolutist position. The school year had already begun. The Court had to recognize that. They both believed that the intricate processes of desegregating schools couldn't be accomplished over a weekend.
Stewart had been an appeals court judge before coming to the Court. He wanted to help the lower courts, not to confuse them. Black's "now" view might make good reading, but the trial courts needed to know what to do. If the Court said "now," the appeals and district court judges would simply ask, "What does that mean?" Worse, Stewart feared that the lower courts would lose faith in the Supreme Court if it came out with some abstract pronouncement.
There was no question where the final speaker at conference, Thurgood Marshall, stood on the question of school desegregation. Marshall had headed the Inc. Fund for twenty-two years, from its founding in 1939 until 1961, when John F. Kennedy appointed him to the Second Circuit Court of Appeals. The great-grandson of a slave, son of the steward at a fashionable all-white Chesapeake Bay yacht club, Marshall pioneered the civil rights battle against segregation in housing, public accommodations and schools. He won 29 of the 32 cases he argued before the Supreme Court for the Inc. Fund.
In 1965, Lyndon Johnson appointed Marshall Solicitor General. When Marshall hesitated, Johnson's closing argument was, "I want folks to walk down the hall at the Justice Department and look in the door and see a nigger sitting there." Two years later Johnson appointed Marshall to the Supreme Court. Marshall had not sought and had not wanted the appointment. He preferred the more active give-and-take of public-interest law. His jurisprudence was long settled; so at conference, Marshall was relaxed, almost intuitively reaching his common-sense solution. He had fit easily into the Warren liberal majority. Plain-spoken and direct, Marshall saw his job as casting his vote and urging his colleagues to do what was right. On the Court, he had little interest in perfecting the finger points of the law. He often told his clerks, only half jokingly, "I'll do whatever Bill [Brennan] does," sometimes even jotting "follow Bill" on his notes. He trusted Brennan's resolution of the detailed, technical questions of legal scholarship. The clerks had taken to calling Marshall "Mr. Justice Brennan-Marshall." Often he would follow White on antitrust cases. But on discrimination cases, Marshall followed no one.
Marshall had headed the team of lawyers who argued the original Brown cases. He remained unhappy with "all deliberate speed." He shifted his massive six-foot-one, two-hundred-and-fifty-pound body slightly as he closed in on his point. He agreed with Black that the phrase was ill-chosen. But the most important element in this case was unanimity for desegregation. There must be no suggestion that the Court was backtracking. He was a practical man. If necessary, he said, he was willing to go along with a delay to December I for submission of plans.
But that was not the major point. Marshall was concerned with bread-and-butter issues—getting black kids and white kids in the same schools. The key was a date for implementation of the plans, and the Fifth Circuit had not set one. Without a date, even the Justice Department admitted that implementation would not occur until the next school year. Surely the schools could do better than that, Marshall said. He proposed setting the implementation deadline for January, the beginning of the next semester.
As the Justices expressed their views, Burger grew increasingly worried. The new Chief had seen during his first weeks that many cases were not decided at conference. Feelings were tentative, disagreements subtle. Often, something had to be put down on paper before a consensus emerged. Burger knew the press would view this case as the first test of his leadership. None of the opinions argued so far was nearly ready to be issued. Burger didn't want to let things get any more out of control than they already were.
The Justices did have some points of agreement. First, the Supreme Court itself must not appear to be delaying. An expedited order would have to be issued soon—perhaps by the coming week. Second, the Court of Appeals should retain jurisdiction and, thus, control. The federal district court, which had allowed years of stalling, should not be involved. There even appeared to be a majority for reversing the appeals court's decision to grant a delay in the submission of plans. So that issue was settled. But beyond these points, there was a broad spectrum of opinion on what the Court should do and say. Should the Court set specific deadlines for the appeals court, or allow it some flexibility to work out the problem?
In keeping with the tradition that the Chief Justice assigns opinions if he is a member of the majority, Burger said he would try to work out language in a simple order that would encompass the concerns of all the Justices. That could be followed by a full opinion if they all agreed to it
The way Burger analyzed the conference discussion, the main obstacle to a unanimous decision was Black. Douglas was following his lead. They were alone in insisting that the Court should order desegregation now and that no opinion should be written, points on which even Brennan and Marshall seemed open to compromise. If they could be kept from joining Black, then Black would almost certainly back down, despite his rhetoric in conference. Burger needed first to put together a consensus opinion with Stewart and White, whose views were closest to his own. From their comments about the need to be realistic, Burger felt that he could go along with anything they might decide on. Harlan was the next available vote. He might want to use stronger language, might be more inclined to fix a firm deadline for implementation. Both would be okay. Harlan might be able to draft something that would draw Brennan and Marshall over to their side.
After the conference, Burger met with Harlan and Stewar
t and asked for their help. They had been through this process before, working with widely disparate views, attempting to reach a common ground.
Harlan said that he resented Black's threat to break unanimity by dissenting. It amounted to "blackmail." He was perplexed by Black's unrealistic solution. The Court couldn't snap its fingers and create desegregation. He could see that Black was up to his old tricks, saying "Here is where I stand," and professing indifference to the others' views. Burger asked Harlan if he would draft a possible order for the Court to issue. He wanted Harlan's thoughts as a starting point.
Harlan went to his chambers to work. Normally, he would have a clerk prepare a first draft. This one he did himself. His grandfather's picture looked down on him from the wall opposite his desk. Harlan's face almost touched the paper as he pushed a ball-point pen across the pad. The writing was hardly legible.
"Proposed Order and Judgment," he wrote at the top.
'The question presented is one of paramount importance. ... In view of the gravity of the issues and the exigency of prompt compliance with the Constitution, we deem it appropriate to enter the following order." He paused and added, ". . . with the opinion of the Court to follow this order." There simply had to be an opinion.
"The Court of Appeals ... is reversed," he wrote, saying that the Court of Appeals should determine '"forthwith" if the original H.E.W. plans were "adequate and reasonable interim means"—that was for realists like himself—"to achieve immediate desegregation." That last phrase was for Black.
But when should the order be implemented? The question had been left up in the air at conference. It wasn't clear that a single deadline could be set. Some school systems might be able to desegregate immediately.
"The earliest possible moment," Harlan wrote, adding,
"and in no event later than," He left
blanks. An outer limit probably should be set, perhaps midyear, but there had been no consensus.
The two-page order was immediately sent down to the Court's printing shop in the basement. Even the most tentative drafts were generally printed and copies distributed to the other chambers. Early printed drafts in cases were never released, only the final ones.
The next morning, Saturday, October 25, most of the Justices came to the Court. Black stayed home.
The Chief asked Harlan and White to his chambers to go over Harlan's draft. Burger and White had also drafted possible orders. With a few changes, however, Harlan's draft served as the basis for their agreement. They decided to leave the implementation date open, to be decided by the Fifth Circuit, since any date the Court set could be seen as a retreat. Burger then sent a memo to the other Justices telling them that Harlan and White and he had met and that this was their submission.
CONFIDENTIAL
Memorandum to the Conference
Justice Harlan, Justice White and I met today and working from three rough, preliminary drafts of alternative dispositions developed the enclosed order to be followed by an opinion.
The draft reflects not necessarily our final view but a "passable" solution of the problem.
We have concluded, tentatively, to avoid fixing an "outside" date. I am partly persuaded to do this because of the risk that it could have overtones which might seem to invite dilatory tactics.
[Signed] WEB
When Brennan, Marshall and Douglas reviewed the proposed order, they agreed that it simply was not strong enough. The order would have to be improved before they could find it palatable, and certainly it was not going to be acceptable to Black. Marshall had been willing to compromise as long as there was an implementation deadline that insured desegregation by the next semester. But now he thought Black might be right. His insistence on "now" might be unreasonable, but it was quite likely the Court's best posture. It might be best to send a shock-wave message. An impractical order directing desegregation "now" might underscore the Court's seriousness. Also, Marshall reasoned, such an order would certainly mean desegregation by the next semester.
Marshall was also concerned that he not end up on the wrong side of a Black dissent. He did not want to be in a position where another member of the Court was claiming that he, of all people, was backing down. What the newspapers said the day after the Court issued its decision would be important. Marshall had to protect his position. He instructed his clerks to begin work on an opinion. At the same time, he did not want to lose touch with the others, so he sent one of his two clerks to talk with Harlan's clerks, to see if some compromise could be reached.
Meanwhile, Brennan decided that he too had to do something. Black, Douglas, Marshall and he could not let the more conservative quartet of Burger, Harlan, Stewart and White control the outcome by having the only drafts in circulation.* In phone conversations with Black, Brennan became convinced that Black was adamant. The collective liberal position would have to be largely Black's if they were going to act as a bloc. Black's view was appealing. The Court had to be tough and dramatic, perhaps a little unreasonable, in order not to appear to be buckling.
After talking it over with Douglas and Marshall, Brennan threw himself into composing a draft order. He wrote that desegregation according to the "all deliberate speed" standard "is no longer Constitutionally permissible. The obligation of the federal courts is to achieve desegregation .. . NOW." The H.E.W. plans could be used if they achieve desegregation "immediately." Desegregation was the status quo.
In order to expedite action, Brennan wrote, the Court of Appeals "is requested so far as possible and necessary, to lay aside all other business of the court to carry out this mandate." Such a request from the Supreme Court was unusual. It would impress everyone with the urgency of the matter and the extent of the Court's commitment.
Black was home on Sunday, October 26, 1969, studying the Chief's proposed order. He thought it awful. He liked Brennan's proposal, which reflected his own arguments from conference two days earlier. Perhaps the others had not taken his threat to write a dissent seriously. Black decided that he had better make good on his word, and he began writing. Beginning with a history of the Brown decision, renewing his attack on "all deliberate speed," Black
* It was still an eight-man Court since no replacement for Fortas had been confirmed by the Senate.
scrawled his message across a yellow legal pad in large crooked letters: "It is almost beyond belief that the factors mentioned by this Court in Brown II, to permit some slight delay in 1954, are precisely the same considerations relied upon in this case to justify yet another delay in 1969."
Criticizing the use of the word "interim" in the Chiefs order, he wrote that
any talk of interim orders necessarily implies that complete total and immediate abolition of the dual school system need not come about and the phrase "the earliest possible time" is ominously reminiscent of the phrase "as soon as practicable" used in Brown II.
The time has passed for plans and promises to desegregate. The Court's order here, however, seems to be written on the premise that schools can dally along with still more and more plans. The time for such delay I repeat we have already declared to be gone....
I would have the Court issue the following order.
Black attached a copy of Brennan's order.
In case anyone missed the import of what he was doing, Black drafted a cover memo to the conference. He had it sent to the Court and printed, with a copy for each Justice.
The letter from the Chief Justice circulated in connection with the proposed order and judgment in this case suggests that the proposal now has the approval of three members of the Court.
It is possible that this proposal will obtain a majority and that the Court may want to issue the order on Monday. Should that be the case, I would not want to delay such action, but will dissent as I have in the opinion circulated herewith.
While a dissent at this time may seem premature, this procedure has been followed only to avoid further delay.
One more thought should be added about the Court's s
uggestion that a Court opinion will later follow this order. I am opposed to that. There has already been too much writing and not enough action in this field. Writing breeds more writing and more disagreements all of which inevitably delay action. The duty of this Court and of others is too simple to require perpetual litigation and deliberation, that duty is to extirpate all racial discrimination from our system of public schools NOW.
When Harlan read Black's memo late Sunday afternoon, he was deeply upset. Black wasn't circulating it to avoid delay; he was making a simple power play. Obviously they all wanted unanimity. Black was telling each of them that they were going to have to deal with him to get it.
Harlan hadn't discussed the case with Black after the conference, nor did he want to discuss it with him now. Black was dug in. Discussion would only aggravate matters. The only hope was Brennan and Marshall. Though they seemed to have joined Black, perhaps they could be peeled away. Harlan phoned Brennan. Black was just being unreasonable, Harlan said. The differences among them were not that great. No one, including the Chief, was really trying to stall desegregation. They all agreed on the need to speed up the process; the question was simply how to be most effective. Harlan was willing to go along with something stronger, more emphatic, than the Chief's proposal. Burger's memo made it clear that the draft was not a final view.