The Brethren

by Bob Woodward

  Southern politicians stumped the South chastising the Court for taking off the summer without deciding this crucial case before the school term began. Some of them suggested that the Justices were not earning their $60,000-a-year salaries.

  On Monday, August 31, Burger took the unusual step of summoning the AP and UPI reporters who covered the Court to his chambers. The Supreme Court, he told them in a forty-five-minute background briefing, had decided not to have a summer session, because it wanted to hear several busing cases and consider the full range of issues. But, Burger said, he had placed the Charlotte case and two other pending appeals {Davis v. Board of School Commissioners of Mobile County and McDaniel v. Barresi, Clarke County, Georgia) at the head of the docket to be argued first in the new term. Burger also suggested to the reporters that the cases under review would likely produce a landmark decision. These cases, it now appeared, would be the most significant since the Brown decision. While all the cases involved Southern school districts, the Supreme Court's decision would likely affect every major school district in the country, North as well as South, Burger said. -

  The Chief knew that his ability to hold the Court together on the sensitive busing issues would be a crucial test of his leadership. Unanimity in key school desegregation cases was a tradition. But Burger had trouble seeing how unanimity could be achieved. As the term began, however, Burger found that he had an unexpected ally—Hugo Black, the previous term's militant proponent of desegregation "now." Black accepted busing in rural areas; most children were bused all their lives to one school or another. But, for all his hatred of segregation, Black viewed the urban neighborhood school as a foundation of community life. He was opposed to massive busing to achieve racial balance and wanted limits placed on the power of federal judges to order it.

  "Where does the word busing appear in the Constitution?" Black asked his clerks. His approach struck them as almost a parody of his legendary literal-mindedness.

  Desegregation, Black argued, meant children should go to the nearest available school. It did not require that they be bused beyond a neighborhood school, in order to meet some precise racial-balance formula. Massive urban busing was an attempt to "rearrange the whole country," he said. He was also sure that black parents, like white parents, did not want their children to spend unnecessary hours on a bus. He asked his messenger, Spencer Campbell, a black man who had been with him for over thirty years, what he thought of busing.

  Spencer said he agreed with the Justice.

  Black related the results of his private poll to his clerks. "Spencer doesn't like busing," he told them. End of discussion.

  Black's clerks were convinced their boss was being unrealistic. The Court could not order immediate desegregation without adopting substantial busing, they argued. But as soon as they thought they had made some headway, Black had yet another counterargument. The power to tax was reserved for Congress. Therefore the Court could not require school districts to buy additional buses.

  His clerks argued that many of the Court's decisions, including several written by Black himself, had required local governments to spend money.

  Black's rebuttal was straightforward. He would allow limited busing to desegregate most schools, but he felt busing for racial balance was unnecessary.

  Burger would stop by Black's chambers planning to lobby Black on the busing cases. But, for all of Black's famous "liberal" leanings, Burger found that Black had deep-seated conservative instincts. Each time, it was Black who ended up lobbying Burger.

  It was clear that Burger could count on Black's vote. Burger was also confident of the position of his newest ally, Blackmun. The remainder of the Court, however, was another matter. At the opposite pole was Douglas.

  For Douglas, the essence of the Brown cases was not that they ended segregation. He viewed the Warren Court rulings as an attack on the stigma—the stamp of inferiority —that segregated schools left on minorities. The only way to end that stigma, in Douglas's view, was through "integration." This was not likely to be achieved, however, with neighbourhood schools. All-black neighbourhoods would have all-black schools. And neighborhoods were not all-black because of random, natural development, Douglas felt. Some kind of discriminatory government action was behind most racial segregation, including that of neighbourhoods. Douglas liked the sweeping way in which McMillan had gotten to the heart of the problem in his Charlotte decision.

  McMillan had said that racial restrictions in deeds of land and actions by local and state agencies, such as zoning boards, urban-renewal agencies, public-housing authorities, and school boards had all contributed heavily to residential segregation. "There is so much state action embedded in and shaping these events that the resulting segregation is not innocent," he wrote.

  Douglas subscribed to McMillan's basic premise that any school which could be labeled as predominately "white" or "black" must be integrated. More than anything else, he wanted to endorse this approach by McMillan. It was a reasonable effort to correct a clear constitutional violation.*

  The other Justices were on a spectrum between Black and Douglas. Marshall would probably stand with Douglas if he felt that they could get a majority. Brennan was slightly less aggressive, convinced they could never get all Douglas wanted.

  It was a question of what White, Stewart and Harlan would do.

  At oral argument in the Charlotte case on October 12 and 13, Solicitor General Griswold argued for minimal busing, no quotas in individual schools, maximum use of neighborhood schools, and retention of some one-race schools. He strongly opposed strict racial balancing or any efforts by federal courts to correct for residential segregation. Judge McMillan had gone too far, he said. The Constitution did not require such extensive steps. School segregation should end, but children should be allowed to go to the school in their neighborhood—whether it was black, white, or perfectly integrated.

  James M. Nabrit III, the Inc. Fund attorney representing the black parents and their children, knew he had to convince the Court that busing students to achieve full desegregation was feasible, not some crazy radical idea. Busing was already a part of most school systems, including Charlotte's. The new busing, an increase of less than 50 percent, was neither expensive nor disruptive.

  The second Brown decision, Nabrit argued, specifically entrusted the lower courts with designing appropriate desegregation remedies to meet different situations. McMillan could be affirmed, Nabrit said, "on the ground that he did not abuse his discretion in ordering a plan which remedied the wrong he found."

  At the Friday conference Burger anticipated that there would be substantial disagreement among the Justices, so

  * Douglas knew the McMillan opinion would put a nearly impossible burden on the school boards. They would have to prove that they were not responsible for the existing segregation. And unless the school board proved that, federal judges had unrestrained freedom to choose a broad remedy.

  he suggested some preliminary ground rules. To encourage candor on such a sensitive subject, he proposed that the Justices adopt an extra measure of confidentiality, and not brief their clerks on the conference discussion. The Chief said that they should circulate only a single typewritten copy of drafts, instead of providing each Justice with the usual printed copies. This would be quicker and more secure. Burger then proposed that the Justices follow precedent set by Warren during the Brown cases, and put off taking even a preliminary vote for the time being. The Chief was anxious to keep the positions of the Justices fluid to avoid having Douglas and Black harden in their views. No matter what the Court finally decided on these cases, Burger wanted, above all, a unanimous opinion.

  After each Justice had been given a chance to present his analysis of the cases, Burger quickly seized the initiative. It was obvious, he said, that there was no five-Justice majority for any one approach. Therefore, he would try to draft an opinion reconciling the different views.

  Douglas was more than a little put out by the Chiefs move. He h
ad marked his own vote book based on each Justice's remarks. There seemed to be a 5-to-4 majority generally favoring McMillan's order. An even larger 7-to-2 majority endorsed the broad remedial powers of federal judges. The five solid votes were Douglas, Brennan, Marshall, Harlan and White.

  In Douglas's view, Burger was in a minority of two with Black. As the senior Justice in the true majority, Douglas felt entitled to assign the opinion. Because of the confused conference discussion, however, he would just have to wait and see what the Chief wrote.

  As he walked back to his chambers, Burger knew exactly what he wanted. If the opinion was to be unanimous, the important thing would be the wording. It would have to be a reasonable decision, with a little something for everyone —for the school boards, for the Nixon administration, for the Inc. Fund, for the Fourth Circuit, even for Judge McMillan.

  Burger quickly briefed his head clerk and set him to work on the draft. The Chief did not have sufficient time to write it himself, but he would stay more closely in touch than usual.

  * *

  Stewart, meanwhile, once again read the series of opinions that Judge McMillan had written. He was becoming fascinated by this lower court judge. McMillan's final opinion, written in August, after the case had been remanded to him for additional hearings, struck Stewart as among the boldest and best lower court decisions he had ever read.

  Over the summer, McMillan had conducted eight days of fact finding. Even in the face of the Fourth Circuit's criticism, he rather daringly had reinstated his original order, demonstrating its reasonableness:

  A third of the children in Charlotte were already being bused to public school;

  Few additional buses had to be purchased;

  The average bus route would be shorter;

  His order had been issued only after the school board refused three times to submit a desegregation plan;

  The school board had vastly exaggerated the number and expense of buses required to implement the plan, exaggerations that, as McMillan put it (with a footnote credit to Lewis Carroll's Alice in Wonderland), "border on fantasy";

  Racial balance in each school was not something he had strictly required; it was a model by which to measure successful desegregation.

  In reinstating his original order, McMillan had criticized the Fourth Circuit's vague directive that he be more "reasonable." He was reinstating the order because "it does the complete job." Stewart admired McMillan's candor and the clever manner in which he had tied the order back to the facts. Since appellate courts were usually supposed to rule only on law and not on facts, except where the factual assessment was clearly erroneous, McMillan's opinion would be hard to reverse.

  Looking McMillan up in Who's Who, Stewart found that he and McMillan were almost the same age. McMillan had gone to Harvard Law School, while Stewart attended Yale, and both had served in the Navy during World War II. McMillan was a member of the United World Federalists, a group of idealists working for world government. It seemed to Stewart that McMillan represented a courageous strain of Southern liberalism. McMillan reportedly had received death threats because of his decision, and he had been placed under police protection. But he seemed willing to have crosses burned on his lawn.

  "The issue is one of Constitutional law, not politics," he had said. "A judge would ordinarily like to decide cases to suit his neighbors ... To yield to public clamor, however, is to corrupt the judicial process."

  "I've got to admire his courage," Stewart told his clerks. "Some people do cause a lot of trouble. It would be nice if it hadn't happened."

  From Stewart's point of view, McMillan had put the Court on the spot. Two decades before, it would have been easier for the Court to back McMillan up. Then, Northern Democrats and Northern Republicans had given bipartisan support to the Court's desegregation orders. Although President Eisenhower had never enforced the orders with any enthusiasm, at least he had not campaigned against them as Nixon had done.

  To Stewart, the evaporation of bipartisan support suggested that more than the usual amount of restraint and caution was needed. And above all, the Court's tradition of unanimity in these cases had to be maintained. That was clearly not going to be easy. McMillan's courage created a difficult impasse for the Court. The conference had only reconfirmed the enormous gulf between the extremes. The Chief seemed closely aligned with Black's antibusing stance. Stewart felt that it was highly unlikely that Burger could write an opinion that would shelter everyone under one umbrella.

  Stewart saw himself in the center. And it was the center of the Court that would have to prevent the collapse of unanimity. "I don't know what the Chief is doing about this case," Stewart told one of his clerks. "Maybe we ought to have something ready." Stewart told the clerk to research the subject and pull together a memorandum drafted as an opinion. He added some directives: McMillan was about right on the justification for racial balance; racial balance was a goal against which progress in desegregation could be measured; busing and redrawing school-attendance zones were remedies within the powers of the federal courts to order; they should be catalogued and approved, though no one remedy should be glorified.

  Yet, McMillan had gone too far on one matter. Stewart could support busing for junior and senior high schools; but when it came to busing elementary-school pupils, he felt that McMillan had gone too far. "They're busing babies, mere babies, mere four-year-olds," Stewart said. "I would not want a four-year-old of mine to go off on a bus for forty-five minutes."

  Stewart thought the Fourth Circuit was right on this point. It had agreed with McMillan on the busing of older students, but not the younger ones. The clerk was to prepare a draft memorandum that, on this point, would reverse McMillan and uphold the Fourth Circuit.

  There were other tightropes to walk in preparing the draft. Stewart felt that there should be strong language in the opinion welcoming aggressive, innovative approaches to school desegregation. The tone should be positive, to encourage the few lower court judges willing to take this kind of initiative.

  But, Stewart cautioned, the sense of the conference was certainly not to go so far as to require the elimination of all one-race schools—something McMillan's opinions had implied was necessary. There were situations in which one-race schools would have to be allowed.

  Overall, the draft memorandum should be written as both a legal and a political document. The media would interpret it on a superficial level. Who had won and who had lost? Had the Court reaffirmed its commitment to desegregation? Had the Nixon administration forced the Court to back down? The language had to be chosen carefully. But the tone had to be supportive of McMillan's innovative approach. The federal district and appeals court judges were the real audience.

  Stewart's clerk began his research.

  On December 8, 1970, Burger's double-spaced typewritten draft was hand-delivered to each chamber. Stewart read it carefully. It was an appalling effort. The tone was entirely negative, criticizing McMillan, and not approving even the part of his order dealing with the junior and senior high-school students.

  After recounting the Brown decisions and noting the difficulty in implementing the desegregation of Southern schools, Part III of the Chiefs draft said, ". . . some of the problems we now face [may] arise from viewing Brown I as imposing a requirement for racial balance, i.e., integration, rather than a prohibition against segregation."

  Stewart saw this as potentially disastrous—certain to draw the wrath of Douglas, Brennan and Marshall.

  "The ultimate remedy commanded by [the desegregation cases from 1955 to 1969] was to discontinue the dual system," the draft continued. The Chief was saying that federal judges could only restore the situation to what it would have been had there never been separate school systems for whites and blacks. This, Stewart knew, would provoke at least half of his colleagues, who wanted the decision to also correct for residential segregation.

  Stewart was puzzled. Traditionally, the courts had power to correct violations of constitutional ri
ghts. Judges could do whatever was necessary to correct the situation once a violation was proved. Burger wanted to limit judges to the minimum necessary to correct a violation, whereas the consensus of the conference was to have judges do anything that was effective in correcting a violation. Effectiveness should be the measure of a remedy, Stewart felt Lower court judges should not be second-guessed unless they grossly abused their discretion.

  Burger's draft then turned to the four main issues presented in the case—racial balancing; elimination of one-race schools; altering school-attendance zones; and busing. These sections were written with one purpose, Stewart concluded. Burger wanted to show that federal court desegregation remedies could not take residential segregation into account. The objective "does not and cannot embrace" the residential segregation, Burger had written. For Burger, all the rest followed. Thus, trying to achieve "racial balance" in each school was not necessary, because imbalance often resulted from residential segregation beyond the courts' power to correct. The conference had been closely divided on this question already. Stewart agreed with the Chief, although he found the draft overstated and severe. Stewart would much prefer to duck this issue for the time being.