by Bob Woodward
The Chief had abandoned his earlier language about "limitations" on busing. The new version approved McMillan's plan as "reasonable, feasible and workable." Burger had also worked out a tricky compromise that was meant to avoid offending either McMillan or the Fourth Circuit Court of Appeals headed by Judge Haynsworth. The order said that the Fourth Circuit was affirmed to the extent that it affirmed McMillan. And, it said, the remainder of McMillan's order was also affirmed. Thus, without saying so, the Court actually reversed that portion of the Fourth Circuit opinion which had not upheld McMillan.
The order was a jumble of compromises, but the new draft had one thing going for it: it had the backing of eight Justices.
Black remained unhappy. The time had come, he decided, to make his stand. He had heard all his clerks' arguments that desegregation now, which he had demanded the previous year, could not be accomplished without busing. He was not willing to accept that logic They were two entirely different issues.
Black was convinced that massive forced busing would trigger a wave of militant, perhaps violent, resistance in the South. For two decades, he had believed that white parents would never desert the public schools. Now he was convinced they would take their children to private and parochial schools.
Black sent a memo to his colleagues. He would not go along with any opinions that explicitly approved compulsory busing. Unless the others acquiesced, removing the endorsement of McMillan's busing order, Black was going to dissent.
Harlan was peeved. It had been bad enough the year before, when Black had threatened to dissent in the Mississippi desegregation case unless he got his way. Now he was doing it again. These continuing blackmail attempts were outrageous. Faced with recalcitrant school boards willing to seize any difference, unanimity in school cases was an important tradition. To hold it hostage, Harlan felt, demeaned both Black and the Court.
Brennan was convinced that Black had lost touch with reality. Black wanted desegregation, but, as the Court's only Southerner, he found it hard to face the discomfort and dislocation it inevitably brought. The others decided that the only course was to accept the prospect of a Black dissent. Perhaps an 8-to-1 decision would not be that bad.
Faced with this defeat, Black began to reconsider his position. A separate dissent, he feared, might provide an encouraging signal to the remaining segregationists. He and the Chief had, after all, succeeded in preventing a flat-out endorsement of strict racial balancing, the elimination of every one-race school, and unlimited busing. Practically speaking, the final draft would cause most lower court judges to think twice before ordering massive compulsory busing of elementary-school children.
A few days later, Black sent a memo to the Chief. "Maybe it is safe to join now," Black said.
The tradition of unanimity appeared to have been saved. At the last minute, however, a final obstacle threatened to undo the months of compromise. Douglas circulated a draft dissent in another busing case (Keyes v. School District No. I, Denver, Colorado) that went far beyond the carefully worded opinion in the Charlotte case. The other Justices quickly prevailed on Douglas to withdraw the draft before it provoked a response from Black or Burger.
On April 20, 1971, the Chief announced from the bench his unanimous opinions in the Charlotte and companion cases. Newspapers from coast to coast carried banner headlines declaring that the Court had backed busing. The New York Times featured Judge McMillan as the "Man in the News." Burger couldn't understand it. He told friends that he considered his opinion "antibusing."
It also did not take Court observers long to recognize the internal inconsistencies in the opinion. "There is a lot of conflicting language here," a judge of the Fifth Circuit Court of Appeals, where most desegregation cases had arisen, told Newsweek magazine. "It's almost as if there were two sets of views, laid side by side."
Stewart could see the judge's point, but he felt that the thrust of the decision could not be missed. It was rare for the Court to pat a lower-court judge on the head, and to specifically approve his actions without saying that they were constitutionally required.
Another news article, citing inside sources as saying that the opinion had been pieced together by other Justices, sent Burger into a rage.
Black took the Chief aside and told him to ignore the press.
Later, when Burger gave a tea for the law clerks from all chambers, one of them asked him about the evolution of the Charlotte opinion from his first draft. "There wasn't much difference," Burger replied. "It didn't change much."
With Blackmun's addition to the Court, Burger hoped to trim back some of the Warren Court's decisions on criminal law during the 1970 term. In one case (Relford v. Commandant), the Court was being asked to make a 1969 Warren Court decision (O'Callahan v. Parker) retroactive. The ruling required civilian, rather than military, trials for serviceman accused of non-service-related crimes.
At conference on the Friday before Christmas, Burger and Blackmun joined the dissenters in the 1969 case— Harlan, Stewart, and White—to create a new majority that both opposed making the earlier decision retroactive and favored cutting back on the precedent itself.
Harlan suggested they go even further and actually overrule the 1969 case. The others in the majority were inclined to agree. As the Justices moved to other cases, however, Harlan had second thoughts. It would be precipitous, he said, to overrule the precedent. He suggested a less drastic alternative, distinguishing between the two cases in order to leave the earlier one intact. The others in the majority were satisfied.
Another case considered in December (Harris v. New York) challenged the scope of the Warren Court's famous Miranda ruling. Under Miranda, police were required to inform a person who had been arrested of his right to remain silent and be provided a lawyer. If the police failed to give that warning, whatever a suspect told them could not be used in a trial.
In the pending case, a lower court had made an exception to the strict commands of Miranda when the defendant, in testifying at his trial, had contradicted what he had first told police. The prosecutor claimed that the earlier statements had to be admitted in court in order to challenge the defendant's new testimony.
At conference, Black, Douglas, Brennan and Marshall wanted to hold the line with the Miranda decision. Allowing the statements to be used for any reason would undercut Miranda. Burger and Blackmun again joined the three Miranda dissenters to allow the statements to be used in the trial. And the new majority, it seemed to Burger, might be willing to go further and gut much of Miranda.
Harlan, however, repeated his concern that they were moving too quickly. He wanted to overrule Miranda, and a number of other Warren Court decisions. But to sweep away years of precedent because the membership of the Court had changed would be a serious mistake. For fourteen years, Harlan had urged stare decisis in his dissents from the Warren Court rulings. He would not abandon that doctrine. Harlan, the fifth vote, suggested that they stick to the narrower exception to the Miranda ruling presented by this one case. The others went along.
Harlan was delighted when his friend Black leaned over to him one day during oral argument and whispered some good news. Black said he was rethinking his position on one of the most controversial areas of criminal law—the so-called "exclusionary rule." Under this doctrine, the Court had held more than once that evidence obtained in an "unreasonable search" could not be used to convict the person searched even if, as a result, obviously guilty criminals went free. These decisions, beginning in 1914 with Weeks v. U.S., had come to be called the "exclusionary rule," because evidence obtained in an illegal search—a weapon, a document, or a piece of stolen property—had to be excluded from a criminal trial.
The rule had grown out of two theories: first, that the only way to deter police from violating the Fourth Amendment's protection against "unreasonable searches" was to prohibit the use in prosecutions of whatever they had illegally obtained; second, that evidence obtained illegally would taint a trial and make the courts partne
rs in lawless police conduct.
Harlan was glad to hear that Black was reconsidering. Since Harlan, White, Burger and Blackmun were all, each for different reasons and to a different degree, willing to change the exclusionary rule, Black could be the needed fifth vote. Harlan also felt that since Black was a member of the original majority, there would be less of a problem in overruling the precedent.
There were before the Court several cases that dealt with various aspects of the rule. They could provide Black with a number of opportunities to revise his thinking.
The Justices who wished to modify the rule thought it had developed into a series of complicated and confusing requirements that puzzled the police more than it restrained them. The Fourth Amendment prohibited "unreasonable" searches, but "unreasonable" had never been fully defined. It was a term Black had trouble interpreting literally. It was necessarily rooted in each Justice's subjective judgment.
The Fourth Amendment also required that police obtain a warrant, and that it be issued only when "probable cause" was shown that a search would yield specific items. Yet the Court, over the years, had allowed numerous exceptions to the warrant requirement. The exceptions allowed police to conduct warrantless searches during a lawful arrest, to seize items in "plain view," to search a person if he consented, and to search automobiles since someone could move a car before the police could get a warrant.
Since his days on the Court of Appeals, Burger had been an articulate advocate of a change in the exclusionary rule. He argued, both on and off the bench, that society had paid a monstrous price for the rule. Guilty criminals were being set free because key evidence could not be introduced at trial. Often, the police were well-meaning, but had made a technical error in securing a warrant or in documenting probable cause.
Burger agreed that evidence should be suppressed where there was genuine police misconduct, such as breaking and entering or coercion. But he was sympathetic to the cop on the beat who honestly concluded that a person had been casing a store for a burglary. That was the kind of routine and proper law enforcement that prevented crime. Yet the evidence obtained as a result of stopping and searching in such instances was often excluded for lack of "probable cause."
Burger had presented his views in a 1964 lecture at American University. "We can ponder whether any community is entitled to call itself an 'organized society' if it can find no way to solve this problem except by suppression of truth in search for truth." The argument had a strong common-sense appeal. Why should a trial designed to determine what actually happened exclude the very evidence that would best establish just that?
Burger felt that there should be a remedy such as disciplinary action against police officers who abused constitutional rights. But he also believed that the exclusionary rule had little deterrent effect on future police misconduct. Police were often unable to follow their own cases through the years of appeals where Fourth Amendment questions were eventually decided. If a conviction was overturned because of police error, the police would probably never know why.
Quoting former Justice Benjamin N. Cardozo, Burger declared that it was irrational that a "criminal go free because the constable erred." It was absurd to free a murderer because a policeman, for example, had made a minor error on an application for a search warrant.
Although Brennan was one of the strongest supporters of the exclusionary rule, he also had developed serious doubts about its effectiveness in deterring police abuses. But he could think of no practical alternative. When Harlan told him that Black was rethinking his position, Brennan was worried.
Black had never been a strong supporter of the rule, but bis vote was the essential fifth. Without it, there was a chance now that the original 1914 Weeks case, requiring federal courts to exclude illegally obtained evidence, could be overruled Nearly as drastic would be a decision overruling the 1961 Mapp case (Mapp v. Ohio), in which the Warren Court had decreed that the federal exclusionary rule would have to be adhered to by state as well as federal courts.
Brennan instructed his clerks not to recommend that he vote to grant cert in Fourth Amendment cases unless there had been a flagrant police violation. Since a majority of five could overrule any case they wanted, the risk was great. One case with the wrong set of facts might send Black over to the other side, wiping away major protections it had taken years to develop. Brennan told his clerks that they could not afford to take cases to "right little wrongs." Better to play it safe until it was clear what Black was going to do.
Marshall gave his clerks the same message: no free shots at the Fourth Amendment should be given. Even in cases where Marshall was convinced that police had violated the Fourth Amendment, he would not take the risk of granting cert.
Even Harlan, unsure where the cases would come out, had been reluctant to grant cert.
Word of Black's reassessment spread quickly through the clerk network. Burger's past rhetoric fueled rumors in the clerks' dining room. "Mapp is dead," one clerk concluded sadly. The question seemed only whether the basic federal rule, the Weeks case, would weather Black's re-examination.
Burger lobbied Black privately, encouraging him to provide the fifth vote to cut back. But even though Black didn't like Mapp, he didn't want to overrule it. He had provided the key fifth vote in the 1961 decision, joining it reluctantly, because of his belief that the same constitutional rights that applied in federal court trials ought to be equally binding on the states: whatever exclusionary rule existed for the federal government existed also for the states. The problem was that Black had never been sure what exclusionary rule should exist for the federal government.
Black's reconsideration stemmed partly from his experiences as a prosecutor and as a crusading Senate investigator. Over the years, the police had become the underdogs. The rights of the accused had been extended too far. The Court had to take into account the growing crime problem, to reappraise the balance between the needs of society for safety and the rights of the defendant.
Black was not opposed to readjusting the law. Under Warren, the Court simply had gone too far. As crime soared, the Court had brought the country's wrath upon itself. News reports of heinous and violent crime frightened Black. The nation's fear of crime had enabled Nixon, who had exploited that fear, to be elected President The Court had to put on the brakes.
Rather than overrule Mapp, Black preferred to create a clear check list of what was and what was not a reasonable search; when evidence could, and when it could not be excluded. A complicated murder case (Coolidge v. New Hampshire), posing several major Fourth Amendment questions, offered that chance.
Edward Coolidge had been convicted of murdering a fourteen-year-old girl in 1964, after luring her from her home during a heavy snowstorm with an offer of a babysitting job. The facts were gruesome. The girl's body had been found along a highway eight days later when the snow melted. Her throat had been slashed and she had been shot in the head.
The police, without a warrant, had gone to Coolidge's home, where his wife gave them a gun that turned out to be the murder weapon, and some clothes that Coolidge had worn the night of the murder. Shortly after arresting Coolidge, the police, again without a valid warrant, searched and vacuumed Coolidge's car and found dirt and other fine particles that matched those on the murdered girl. Coolidge's lawyers argued that all the evidence should have been excluded from the trial.
At conference, Black indicated that he thought none of it should be excluded. The evidence found with the wife's consent was properly obtained. He also felt that it had been proper to search the car.
Harlan was personally inclined to agree with Black. But the Mapp case bound them, since Coolidge was a state case, so he announced that he would not join Burger, Black, White and Blackmun unless they were willing to overrule Mapp, freeing the states from the exclusionary rule. That was the only logical way.
Black refused. He simply wasn't willing to overrule Mapp.
Harlan therefore tentatively voted with Douglas, Bren
nan, Stewart and Marshall to exclude the evidence. Thus, even though there were five members who thought the evidence against him should be admitted, Coolidge would get a new trial and another chance to be acquitted.
Black was exasperated at Harlan's refusal to simply bend the exclusionary rule without overruling Mapp. He accused him of allowing the Court to turn professional criminals loose to prey upon society with impunity.*
Black's vehemence hurt Harlan's feelings. He considered airing his own frustrations in an opinion but decided against it. Harlan said that his vote would remain tentative, however, until he saw a draft opinion.
It was obvious to the others that if and when Black and Harlan found common ground—whether to just overrule Mapp or to modify the entire exclusionary rule—they would form a new majority with Burger, White and Blackmun. In an effort to keep that from happening in this case, Douglas, the senior Justice in the majority, assigned the opinion to Stewart, whose views were closest to Harlan's.
Stewart, however, was unsure of his own position on the car search. He asked his clerk to research the matter, and the clerk developed a car-search theory. In situations where police stumbled on a car inadvertently or made an on-the-spot arrest, a warrant might not be necessary. But where they expected to find the car when they made the arrest, they should be forced to take the time to get a valid warrant.