by Bob Woodward
Turning to Burger's section on whether the courts could redraw school-attendance zones, Stewart found an incredible phrase dropped in the middle: "Absent a history of a dual school system," the courts could do nothing, the Chief said. That statement would have little effect in the South, where dual systems had existed in most locations, but it would drastically limit Northern desegregation orders.
The remainder of the draft seemed more reasonable to Stewart. It said that busing and alteration of school zones were certainly proper in some instances, but the age of children could be taken into consideration. The Fourth Circuit had properly brought McMillan to task for not considering the age of the elementary-school children. The liberals would not like that, but Stewart would support it.
Burger's draft neither reversed nor affirmed McMillan, but simply sent the case back to him for "reconsideration" in accordance with the opinion. What bothered Stewart was the tone of even those sections that endorsed McMillan. Burger said McMillan's teachnique was "not an impermissible tool." The double negative was a needless jab. The Chief also praised the "valiant efforts" of the school boards, a seeming endorsement of their obstruction.
Stewart concluded that Burger had given a begrudging yes to very limited busing, but that he had undercut the thrust of the McMillan order. If published, the opinion would almost certainly encourage segregationists to use the federal courts to try to cut back on desegregation orders already in effect in the South. It would also preclude efforts to use the federal courts to desegregate Northern schools. 'This will represent a complete retreat," he told his clerk. "It's disorganized and stupid."
Stewart asked his clerk to finish his research memo as quickly as possible. "I want a lot of emphasis on the remedial power of the trial court," Stewart said.
Within a week, Stewart had edited and partly restructured his clerk's memo. He sent it to the printer with the simple heading "Mr. Justice Stewart." He did not want it to be anything more than a memo. Anything suggesting that it was a separate opinion, an alternative draft, or even a dissent, would be threatening to the Chief. "I don't know whether we should circulate this now," Stewart told his clerk after the draft came back from the printer. But a few days later, Stewart told his clerk to take copies to the five other Justices who he hoped would be sympathetic—Douglas, Brennan, White, Harlan and Marshall.
Brennan did not like the Burger draft. The Chief had insulted the intelligence of the conference, Brennan felt.
He was trying to frustrate the will of the majority. Brennan was not entirely pleased with Stewart's memo, but he much preferred it as a basis for discussion. He encouraged Stewart to circulate it to the full Court That way, the Chief would at least have the benefit of seeing it.
Stewart was reluctant, however, to confront Burger with what would obviously be perceived as an alternative draft "I got shitty opinion assignments from Earl Warren for ten years, and I'll be damned if I want to get them from Warren Burger for the next fifteen years," Stewart declared.
Brennan again urged Stewart to circulate his effort. Privately he considered Stewart far too timid, almost cowardly, for his reluctance to stand up to the Chief.
Douglas, Marshall and White also urged Stewart to circulate. Each had objections, but each felt that, as a basis for negotiation, Stewart's draft was certainly more palatable than Burger's.
Stewart realized that with the votes of the four Justices who were urging him to circulate, he had the makings of a majority. He decided to send the memo to the others, and he prepared a carefully worded cover letter indicating that the circulation was just a research memo, really nothing more than some thoughts and background prepared by his law clerk.
"They think your draft is good," Stewart told his clerk. "But don't get your hopes up."
Burger's reaction to Stewart's memo and cover letter seemed positive. The Chief told Stewart that he would use the memo as the basis for yet another draft, and he quickly set his senior and most trusted law clerk back to work.
The Chief finally circulated his second draft It was, on the whole, a major disappointment to Stewart. Despite Burger's assurances, he had incorporated little of the material in Stewart's memo. The draft was still overwhelmingly negative in tone. "We may have to dissent," Stewart told his clerk. "Your thing may be published yet"
Harlan watched the maneuvering on the cases from a dignified distance. He had assigned a law clerk to prepare a detailed research memorandum on the pertinent law, and he felt that the issue came down to whether federal judges enjoyed a sufficiently broad power to order such remedies as busing for constitutional violations. His research indicated that they had the power to set forth any remedy they deemed necessary.
Harlan had his clerk's massive research memorandum printed and presented it as a set of suggestions for revisions to Burger's draft opinion. His cover memo, restrained in tone, said the Chiefs draft would be acceptable, provided that Burger made a few changes. The changes, however, amounted to deleting almost all of the Chiefs draft and substituting the far longer Harlan memorandum.
Blackmun had also maintained a deliberately low profile. These were the first cases argued since his arrival on the Court. Blackmun took great pride in his progressive views on racial matters. He had, after all, authored some of the opinions of the Eighth Circuit Court of Appeals in the Little Rock desegregation cases. But he worried that McMillan's order would destroy the role played by neighborhood schools in formulating community values.
Still, Blackmun thought that the basic question was the power of judges in the lower federal courts to deal with these situations. Harlan's research had settled this, as far as Blackmun was concerned. Blackmun preferred Stewart's draft, but he was not about to disagree openly with the Chief. If only Burger would alter his own draft to remove any ambiguity about the power of lower federal courts to order busing.
Burger, however, wouldn't move. Black was not willing to budge on his opposition to busing, Burger insisted. The others would have to compromise in order to reach some consensus.
At this point, Douglas, Brennan, Marshall and White took stock. They could not live with the Chief's draft. They preferred, in varying degrees, different solutions. The Stewart draft also fell short of their aspirations, but provided them with some leverage on Burger.
Douglas, Brennan and Marshall went to Stewart's chambers. Stewart was nervous about the implications of a meeting of five Justices—a potential majority, the very sort of rump caucus Warren used to hold—so White had not been invited. Stewart emphasized that he was unwilling to take the opinion away from the Chief. His goal, he said, was to pull the conference together, not to divide it. He did not want to be a leader, or even a member, of any faction.
The other three Justices tried to reassure Stewart. He alone was in a position to rally their votes and those of White, Harlan and Blackmun. If he was unwilling to make his draft a counter opinion, he must at least take the responsibility of negotiating with the Chief.
Stewart felt pressured. But at the same time, he rationalized that he was pulling the liberal wing along into a more moderate posture, one more likely to result in a true consensus. It was clear to Stewart's clerks that he liked the idea of being the principal negotiator with the Chief.
Back in his chambers, Douglas was worried. Desegregation sentiment in the country had peaked. This time, there was a very real threat of a backlash. The antibusing sentiments salted throughout Burger's draft would appeal not just to segregationists in the South, but to a substantial blue-collar constituency in the urban North. If Burger's opinion surfaced in its present form, it would appear to legitimize Nixon's anti-busing, anti-desegregation polices. The Court would look like an instrument of Nixon's will.
For Douglas, the Court's credibility, its prestige and its independence were at stake. Normally he preferred to publish his views in a separate opinion rather than compromise with his colleagues. But this was too important. Black's desertion, his apparent support for the entire Burger effort, left Douglas
unsure where the final Burger draft would come out They key to any meaningful alternative was clearly Stewart. Stewart's memo was not that bad, as far as Douglas was concerned. His approach and his tone swept in the proper direction. But there was one major problem.
Douglas made a decision. He walked over to Stewart's chambers, and knocked on the door that led directly from the hall into Stewart's own office. Stewart was surprised to see him. "I like your memo," Douglas said, "except for one thing—the result."
In Douglas's view, the question of whether elementary-school children should be bused in Charlotte was of far less significance than the symbolism of how the Supreme Court treated Judge McMillan. It was important to endorse McMillan's logic. If it were affirmed, every district court judge would have to go to the McMillan opinion for guidance, instead of merely reading the Supreme Court's opinion. That was what Douglas wanted.
Was it absolutely necessary, Douglas asked Stewart, to reverse McMillan because he had ordered the busing of elementary-school children? Douglas had an alternative. Suppose the order affirmed McMillan—thus upholding the use of racial balance as a criterion for designing a desegregation plan—but went on to point out, in the text of the opinion, the difficulties and considerations in busing young children?
Okay, Stewart said.
Douglas left and Stewart ordered his draft changed— from reverse to affirm.
Marshall was happy to see that Stewart was willing to affirm McMillan. That was vital. But in general, Marshall had some strong reservations about Stewart's version. First of all, it was nearly as conservative as the Chief's. Worse, it was too specific. Too lawyerlike. Too well written. Stewart's draft, Marshall feared, would make all too clear the extent to which the Court was not fully backing up McMillan. Marshall felt that the goal of protecting the extensive desegregation efforts already underway in the South would best be served if the Court affirmed McMillan and accompanied the order with something like the hodgepodge prepared by Burger. Lower court judges would not be able to understand a mushy opinion like that. They would be forced to read McMillan's opinion for guidance to see what it was that the Court was affirming.
As Burger's senior clerk labored in his second-floor office, he began receiving frequent visits from a clerk who worked for Marshall. Marshall had a number of problems with Burger's first version.
Ideally, Marshall would have liked to go as far as possible in this case to maximize desegregation. But he was practical enough to recognize that sweeping changes were not about to be realized in this case. He focused, therefore, on more limited goals.
One problem with Burger's draft was the way it held that a judge should not attempt to correct for residential segregation patterns in designing school desegregation plans. That was precisely the question that judges had to weigh, Marshall felt, if there was to be any meaningful desegregation of big-city school systems, particularly in the North.
So Marshall's clerk began lobbying through Burger's clerk, trying to persuade him to move a discussion of residential segregation that had been buried in Footnote 11 up to the main body of the next draft. Burger at last gave in, though he refused to go along with most of the other changes sought by Marshall.
Stewart continued his negotiation with the Chief. He knew now that his alternative draft implicitly commanded the votes of at least five justices and, with Harlan, six. But the process of trying to bring Burger around was painfully slow. Stewart finally came to the conclusion that the Chief's principal commitment was to his own language. He seemed flexible on where his language and phrases appeared, as long as they were somewhere in the opinion.
So, to diminish the overall negative tone, Stewart began dispersing the Chief's most damaging sentences throughout his draft. A string of sentences in the middle of Burger's original draft, suggesting sympathy with desegregation delays, was softened by the elimination of one sentence, additions from Stewart's draft, and the relocation of some of Burger's other material. Nearly every paragraph required a drawn-out negotiation. As Stewart pushed to insert as much of his draft as possible to dilute the Burger rhetoric, the length of the opinion almost doubled.
Black remained a major obstacle. Spurning the negotiating process, Black insisted that he would not join any opinion that mentioned or approved of busing to achieve racial balance. And Burger used Black's intransigence as a lever in his negotiation with Stewart. It had been difficult to coax Black along, Burger explained. Hugo had already compromised a great deal. The others would also have to compromise.
Stewart could hardly contain his frustration in his face-to-face meetings with the Chief. Privately he knew that what the Chief painted as an 8-to-1 split was really a 7-to-2 split. As one of the two members of the minority, the Chief was doing his best to control the opinion. "If Black did not exist, Burger would have to create him," one clerk complained.
Stewart's frustration had reached its limit. He still hoped for a unanimous court. But if Black insisted on holding out, an 8-to 1 opinion would be close enough. Black would be dealt with later, once the other eight agreed. It was time to call the Chiefs bluff. He let the Chief know he wanted his changes made.
Brennan, too, felt frustrated. By not writing himself, by letting Stewart—who was really in the middle—negotiate for the liberals, it was going to be difficult to get an acceptable opinion. Stewart's final draft, even with modifications, would have been barely sufficient. Now, he was making compromises with Burger that Brennan found increasingly unsatisfactory.
It was clear that the Chief had moved from his true position in order to accommodate the majority. He wanted to be the author. What had started out as an antibusing opinion was taking shape as at least a moderate endorsement of busing and McMillan. The negative tone, if it was not yet positive, was at least becoming neutral. But the Chief had not come far enough, and now he seemed to be digging in. It was time to act.
Brennan had all three of his law clerks draft a detailed memo listing his objections to the latest Burger draft. "This is my shot," Brennan told his clerks, "and I want to draw the line." Because the Chief wanted unanimity, Brennan felt there was no reason not to threaten to be as immovable as Black.
Brennan's memo made four basic points:
Racial balance had to be clearly endorsed as a permissible guideline against which to measure the extent of the segregation problem and the effectiveness of the desegregation solution.
The acceptability and appropriateness of busing needed to be clearly emphasized to the lower courts.
A stronger position had to be taken on eliminating one-race schools.
Annual readjustment of the racial composition of the schools should be made to keep them from becoming all-white or all-black again.
Brennan sent his memo to the Chief and the other Justices. Faced on all sides with insurrection, the Chief circulated still another draft. The tone, and much of the substance, was a far cry from his first draft four months earlier.
Where Burger's first draft had declared that past delays by Southern school boards in dealing with desegregation were "not now relevant," the new draft said that "the failure of local authorities to meet their constitutional responsibility aggravated" problems in desegregation.
The Chief had also declared in his first version that judges had less power in school desegregation cases than in other types of cases involving constitutional violations. Now, in a victory for Stewart, the latest draft declared them identical. Burger's section prohibiting federal judges from taking into account residential segregation had also been removed. On the other hand, Douglas's suggestion that judges be required to consider residential segregation had not been adopted either. Marshall's language had been adopted, specifying that courts should give "great weight" to residential segregation in designing desegregation orders if the residential segregation was at least caused in part by school board decisions—such as decisions to close or open schools in certain neighborhoods.
The racial-balance question was split down the middle, but
basically it affirmed McMillan. The draft still said that the Constitution did not require it. But, on the other hand, it stated that "the very limited use made of mathematical ratios was within the . . . discretion of the District Court." In case the message was missed, the final draft praised McMillan's "patient efforts."
Not all the battles, however, had been won by the liberals. A "small number of one-race" schools was not necessarily a mark of an illegally segregated system, the draft said. But there was a "presumption" against them, and the goal should be their elimination.
Burger and Stewart had agreed on two other sections that gave the liberals some problems. The age of students, the draft said, should be taken into account in busing orders. A section tacked onto the end also made it clear that it was unnecessary to readjust the racial composition of schools each year—a defeat for Brennan.
But the bottom line—the answer to the question of how much desegregation was adequate—was a clear victory for the liberal wing of the Court. "The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation," the new draft said.