by Bob Woodward
"That was a tentative vote," Burger replied firmly.
At the next Thursday session, before the Friday conference, Burger and his head clerk reviewed the cases to be discussed. Burger stated that he would vote to reverse a lower court case.
After Burger left, the clerk sought out another of the Chief's clerks and explained what their boss had just said he would do. "If he comes back and denies it," the clerk said, "I want you to know that he said he would do it. And when he denies it, I want you to tell me that I'm not losing my memory." But Burger held to his initial position.
Once, the Clerk of the Court approached one of the Chief's clerks. "I've been meaning to ask you something for a week," he said. "I often find my recollection differs from the Chief's. Does yours?" Burger's law clerk said he was familiar with the problem and recalled some stories about conference votes and record keeping.
No, the Clerk of the Court said, he knew about that. But he was talking about the Chief's habit of reminiscing and placing himself at the center of events—saying things, doing things and making decisions all of which had been said, done or made by someone else.
After White, the Chief felt most ideologically compatible with Harlan, then Stewart, and in some cases Black. After so many years as a leading liberal, Black had in recent years become increasingly conservative. He was living proof that events were pushing people to the political right, the Chief felt. Liberalism was an experiment that had largely failed, and now one of the arch-liberals was moving back to common sense.
The criminal cases were going to be the guts of the battle at the Court, the Chief figured. This had been clearly spelled out by the President and emphasized by the press. The country had spoken in electing Nixon on a law-and-order platform. In the heated rhetoric of the day, Nixon had campaigned to help the "peace forces"—police and prosecutors—in their battle against the rising crime rate. He had especially criticized "coddling" of criminals by "soft" judges.
Burger's analysis was more sophisticated. He agreed that many of the changes in the criminal justice system brought about by the Warren Court, such as protecting suspects from police-coerced confessions and giving defendants legal counsel, were long overdue. An American Bar Association committee that Burger had chaired while he was an appeals court judge had gone further in its recommendations for providing lawyers for poor defendants than any decision of the Warren Court. But Burger did not think the route to reform was necessarily through Supreme Court decisions. From the outset he thought that if he was going to have an impact and make lasting contributions, perhaps be revered, he would have to help reform the criminal justice system through administrative change. Speedier trials must be provided defendants. The state judges and the committees and commissions the Chief Justice served on or controlled had to be redirected to support reform.
Burger would then have to lend his prestige, his time and his energy to that huge administrative task. That meant giving speeches, going to conferences and making his views known to Congress. From the beginning, he realized there would be no instant shift in the Court's jurisprudence, even when Nixon appointed another conservative to fill Fortas's seat. For now, Burger would conduct a holding action, which was necessary to ensure that the Court wrote no sweeping new rules to hamper law enforcement. He would accomplish more by lobbying than by writing opinions, he felt.
Some cases now before the Burger Court had been filed in the closing days of the Warren Court. A few had apparently been singled out to refine and extend major Warren Court decisions. One case, Bivens v. Six Unknown Named Agents, particularly troubled Burger. Bivens was claiming that he had a right to sue and obtain money damages from federal agents who had broken into his home illegally, without a search warrant. Since they could maintain that they were acting officially, federal agents were normally immune from such suits.
Burger did not want the Court to open another whole remedy for alleged law enforcement abuses. And he was worried because there were five votes to hear the case, one more than the required four. Since the lower court had held that there was no right to sue, it was likely that the five who voted to grant cert wished to reverse the lower court. Burger felt that that would be a disaster. He was not firmly opposed to allowing such suits, but the Court should look at the entire problem of how to handle illegal police searches. The Court should take a range of cases, perhaps allowing damage suits but at the same time lifting some of the Warren Court's restrictions on police powers. Two of the five votes were those of Harlan and Stewart. Burger decided to appeal to them personally to withhold their votes.
Burger went to Stewart's adjacent chambers. He explained that he had a request to make in the case about civil money-damage suits against federal agents. A decision establishing such a right would be judicial activism at its worst and would add to the case load. Worse, it would be seen as another slap at the police, one more judicially mandated shackle on those fighting crime.
Stewart had no burning passion for the case, and he wanted to get along with the new Chief. Ten years of languishing under Earl Warren inclined him to agree. Obviously, Burger cared very much. He had come to ask a personal favor, so Stewart said yes. He would withhold his vote for the time being.
That left Harlan. Burger phoned ahead to see if Harlan had time to talk about an important matter. Harlan said, "Of course."
Harlan's office, one third of the way down the north corridor, was brightly lighted. Special high-intensity lights had been installed to aid his poor eyesight.
Burger sat down and outlined his request.
Harlan said he hadn't thought so at first, but now he thought the Court should hear the case. Innocent persons not charged with a crime should be able to sue federal agents who had violated their rights. 1
There was a more personal reason, Burger said, that made him believe the Court shouldn't hear the case. Apparently there was a majority for Harlan's point of view. But in his first year as Chief, Burger said, a decision that would be viewed as another Court effort to tie the hands of the police would look awful. The press could make such a decision embarrassing both to him as Chief and to the Nixon administration.
Harlan could not believe that Burger was advancing such a blatantly political argument. Harlan himself felt that a judge should be wholly removed from politics. He never even voted in presidential elections. The Court was independent, removed from the political push and pull. The administration, the press, personal embarrassment— real or imagined—should have no effect on the Court or its deliberations. Harlan did not wish to lecture the Chief, however, so all this went unsaid. Aware that Burger obviously considered him an ally and a friend, Harlan simply told Burger that he did not think he could withdraw his vote.
Burger pressed.
Harlan found it difficult to say no to the Chief. He proposed a compromise. He would withhold his cert vote and they would hold the case over. He would then vote to grant a hearing for the next term.
Burger thanked him. That would do.
In considerable but controlled agitation, Harlan described Burger's visit to one of his clerks. There were, he said, reasons not to take the case. And he certainly didn't consider himself a judicial activist. But to worry about how it would "look" in the news media, or for the administration? Incredible, Harlan said, shaking his head in disbelief.
The clerk saw that Harlan was distraught. He urged him not to do as Burger wanted. But Harlan had promised, and the case was held for the next term. He would not refuse a personal request from the Chief Justice.
Often the Chief found that his conservative colleagues, with their concern with precedent, caused him as much difficulty as the liberals. In one part of a complicated criminal case (Coleman v. Alabama), the conference had voted 7 to 1 that a person charged with a crime did not have a right to an attorney at a routine preliminary appearance before a magistrate to determine whether there was sufficient evidence to bring the person to trial. Harlan, the lone dissenter, thought that the preliminary hearing was part
of the prosecutorial process. Though he didn't like it, the logic of precedent dictated that the person who had been charged was entitled to an attorney.
Pleased to see Brennan upholding the conviction—refusing to extend the right to have an attorney—Burger assigned him the case. Brennan was relatively quick to circulate his majority opinion. It was not well received. Black announced that he had reconsidered and would join Harlan in dissent. Brennan was upset that his majority draft had apparently triggered Black's switch.
Burger sent Black a memo chiding him gently. Black, the avowed strict constructionist, always claimed that his judical views were drawn literally from the Constitution, and from nowhere else. He carried a Government Printing Office pocket edition of the Constitution with him. "Dear Hugo," the Chief's memo said, "Please tell me what article or amendment covers this."
Black responded the next day. "Dear Chief, Amendment VI." He went on to quote from the amendment, which said that
"in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of Counsel for his defense."
Although the Sixth Amendment doesn't go into detail on when, ... it would disregard reality to say that a preliminary trial is not an important part of a prosecution under which a state is preparing to punish a man ...
Where is there anything in the Constitution that says that although a man has the right at the time of prosecution, he cannot claim that help the first time he needs counsel?
Black's vote was firmly with Harlan.
That left the vote 6 to 2, with the Chief still on the winning side.
Next, Harlan circulated his dissent. Though he had dissented from most of the Warren Court decisions that extended rights to the accused, and still felt they were incorrect, Harlan now chastised the majority for its apparent willingness to disregard the logical implication of its recent decisions. In the landmark Miranda decision (Miranda v. Arizona) in 1966, with Harlan, Stewart and White dissenting, the Court had decided that an arrested individual had the right to an attorney. Whatever a person said without an attorney present could not be admitted in a trial or used against him, unless he waived his right.
The previous term, Harlan reminded them, the Court, with the same trio in dissent, said that those rules apply even when a suspect is questioned in his home. How, Harlan asked, could the Court now say that a potential defendant has the right to an attorney at a police station or in his own home, but not the first time he enters a courtroom?
Brennan was worried. Though he still had the votes, he was uncomfortable that the conservative Harlan was making the liberal argument. Also, Brennan could see the logic of the position. The votes would likely slip away from him sooner or later. Douglas and Marshall were not firm, and he himself was having second thoughts. If the others switched on that one section, Harlan would end up writing the whole opinion. Brennan did not want to lose control over the other sections of the opinion he had already drafted.
In a recent case (Interstate Commerce Commission v. Black Ball Freight Service), Brennan had had a majority when the decision was assigned to him, and then lost it to Douglas, who had a different view. Brennan was not accustomed to having a majority stolen out from under him. "I'm not going to lose another one," he told a clerk, and he grimly instructed him to revise part of the opinion so that the result came out the opposite way. Douglas, Marshall and White soon joined Brennan's new opinion.
Burger, however, had no intention of changing his vote. The right to counsel at the preliminary hearings was something for legislatures to enact, not the Supreme Court. He dashed off a blistering dissent excoriating the new majority. It was an "odd business" that it took the Court "nearly two centuries to 'discover' a constitutional mandate to have counsel at a preliminary hearing."
Douglas read Burger's opinion and decided to respond with a separate opinion. He didn't know whether Burger would retract his dissent or tone it down and issue it as a concurrence. He had already done both several times that term. "I add a word as to why I think that a strict construction of the Constitution requires the result reached," Douglas wrote in a lecturing tone. "It did not take nearly 200 years of doubt to decide" the matter. "The question has never been reached prior to this case. We experience [on the Court] the case-by-case approach that is the only one available under our 'case' or 'controversy' jurisdiction under Article III of the Constitution." He was reminding the Chief that the Court could not reach out to decide issues that were not presented as live controversies.
When Burger did not withdraw his dissent, Douglas went ahead and published his rebuke.
As the author for the majority, Brennan wound up with six votes for the revised part of his opinion. Black, Marshall, Douglas and White and Brennan himself had switched to Harlan's view.
Potter Stewart's initial optimism about the new regime had also faded. One of his clerks, a committed liberal, had observed Burger in action at the District of Columbia Court of Appeals the previous year. He had sent early and repeated warnings to Stewart, characterizing Burger as petty, unpleasant and dishonest.
Stewart didn't want to jump to conclusions. He just laughed nervously as his clerks told new and old Burger tales, which always painted the Chief in the worst possible light. But as the term progressed and Stewart compared notes with the other Justices, particularly with his friend Harlan, his reservations about Burger turned to acute distress.
It occurred to Stewart that Burger was much like Earl Warren, inclined to shoot from the hip, or to view cases in purely political terms. In some respects, Burger was worse. At times the Chief changed his ground in a case three or four times. Legal arguments couldn't reach him. Often it seemed that all Burger cared about was upholding criminal convictions. He would go out of his way—bend the law, overlook earlier Court decisions—to hold a majority to keep someone in jail. But, unless the Chief could get at least one other Justice to go along with his hard-line views, he invariably moved toward the center, joining the most conservative position available. Stewart's clerks, and a number of others, worked out a theory of Burger's jurisprudence. The Chief would never be alone in dissent. "Always to the right but never alone," the slogan went.
Stewart was especially demoralized by the Chief's responses to a series of routine petitions that had come to the Court. Prisoners who made a claim in a federal district court that their rights had been violated in a state prosecution were, at times erroneously, denied hearings by the district court. Almost always, the intermediate court of appeals would order the district court to hold a hearing; then the state would petition directly to the Supreme Court for review of the appeals court's demand. The Supreme Court routinely denied such petitions because its prior decisions demanded the district court hearings. But Burger wanted to simply ignore previous Supreme Court decisions that provided for the prisoner's right to make such appeals, and reverse the intermediate courts without even holding oral argument.
Stewart considered Burger's position bizarre. With no knowledge of the facts in the cases before the Court, it was absurd to reverse the appeals courts. Though the Chief lobbied heavily on these cases during the term, he never got another Justice to go along with him.
Another criminal case considered early in the term involved a double jeopardy claim of a Missouri man, Bob Fred Ashe, who was alleged to have robbed six men at a private poker party (Ashe v. Swenson). Ashe was put on trial for robbing one of the six players and found not guilty. The prosecutors reworked their case, focusing on the witnesses that had been helpful to the prosecution and ignoring those whose testimony was not. Some witnesses' memories improved. The state then tried Ashe for robbing another of the players. This time he was convicted. Cert had been granted the year before to clarify a decision of the previous year (Benton v. Maryland) that said the states had to adhere to the Fifth Amendment's protection against double jeopardy, the doctrine that a person cannot be tried twice for the same offense.
The tentative vote in conference was 5 to 3 to free Ashe, though t
he majority couldn't agree on a single theory. The Chief was a dissenter. Black, as the senior Justice for the majority, assigned Stewart to write the opinion. Gradually all the Justices but Burger agreed to join Stewart. Ashe would be freed. There were separate concurrences by Black, Harlan and Brennan. Stewart's opinion banned retrials in many circumstances. Brennan, joined by Douglas and Marshall, agreed with Stewart but wanted to go further and ban separate trials for each crime committed in a single criminal episode like the poker-game robbery.
Burger was furious. In the first place, he believed that, given the record in Ashe's two trials, the Court was going to impose a rule on the states that would free a guilty man. The Court, in Burger's view, should refrain from making more rules that limited a prosecutor's opportunities to bring criminals to justice. The robberies of the individual poker players were separate crimes; Ashe should be accountable for each. The Fifth Amendment stated that double jeopardy applied to the "same offense." Here there were six offenses. The majority's view, Burger reasoned, invited a criminal to commit multiple offenses, since there would be no accountability after the first one.