by Bob Woodward
White found this doctrine absurd, and he wrote a lengthy dissent. Why should evidence be excluded, he asked, solely because police expected to find it? Besides, in this case there was no indication that the police had expected to find the car there. Even more distressing to White was Stewart's apparent willingness, without explicitly saying so, to undermine a case White had written during the previous term (Chambers v. Maroney), which had held that police should be allowed to seize whatever they found in plain view when making an arrest The car was surely in plain view.
Harlan sent Stewart a memo. He found the White dissent persuasive. He did not believe he could join that section of Stewart's opinion.
* Black later published these views in the case Whitely v. Warden. Harlan drafted but did not publish a rebuttal, because he didn't want to attack Black publicly.
Then he called Stewart. Perhaps it was time for the Court to reconsider the entire exclusionary rule and all the Fourth Amendment ramifications. Maybe this was the case in which to do it
Stewart could see his majority slipping away. He encouraged his clerk to write a strong critique of White's view. This began a war of footnotes between the two chambers for Harlan's vote. The number of footnotes in Stewart's draft doubled to forty.
Stewart's clerk also tailored a section specifically designed to win Harlan back. He built on Harlan's concern that the Court had to be careful not to grant too many exceptions to the Fourth Amendment's warrant requirement. If good motives and probable cause were the sole criteria for a valid search, as White was suggesting, search warrants would not be necessary. The Fourth Amendment clause that required specific warrants would be void.
When Stewart's new draft arrived in Harlan's chambers, he took it home to read. The next morning Harlan entered his chambers, as usual, through his clerks' office. "Good morning, chaps," he said brightly. "I read Stewart's draft last evening. It is not a bad opinion." That was that. Harlan was willing to join that key part of the opinion.
Then, suddenly, trouble developed for Stewart from the liberal wing. Brennan had written a dissent from the part of Stewart's opinion that upheld the house search based on the wife's consent. The question of whether someone other than the suspect could grant consent to a police search had never been fully settled by the Court. Stewart wanted to allow the evidence provided by Coolidge's wife to be used in any new trial. Since that included the murder weapon, Coolidge's new trial would likely result in another conviction.
Studying the record, Stewart's clerk found indications that the police had intimidated and coerced Coolidge's wife into cooperating. Police, prosecutors and judges could therefore conceivably read the opinion and conclude that intimidation of non-suspects, to secure their consent to searches, was acceptable.
The solution, the clerk decided, was to distort the facts in the draft. "There is not the slightest implication of an attempt on [the police officers'] part to coerce or dominate her, or, for that matter, to direct her actions by the more subtle techniques of suggestion that are available to officials in circumstances like these," his draft stated.
Stewart bought this approach. This way, police and prosecutors would see they could conduct such searches only with voluntary cooperation.
But the intimidation and coercion of Coolidge's wife had also been noticed by one of Brennan's clerks. He had prepared a dissent pointing out the severe distortion in the Stewart draft. When Stewart's clerk learned of it, he realized that if the Brennan dissent circulated, it might well pick up Douglas and Marshall's votes and leave Stewart with no majority on that portion of the opinion Stewart's clerk appealed to Brennan's clerk to urge Brennan not to flag the problem.
Brennan agreed. Kicking up a fuss with a sharp finger-pointing dissent could lead to a worse resolution.
White replied to the conference in a memo. He was unhappy with the outcome of both Coolidge and another exclusionary rule case. Stewart's opinion resolved nothing. He wanted the issue put over for argument in other cases the next year.
Burger replied to White's memo the same day. He agreed with many of White's observations. He wanted these cases reargued. "I have this suggestion however: that to accommodate varying views we pose the reargument questions along the following lines: (i)—Should Mapp v. Ohio be overruled? (2)—If Mapp v. Ohio is not overruled, should the scope of the Exclusionary Rule be narrowed so as to relate its application to the nature of the violation? I am not in any sense ‘wedded' to this formulation of the question."
At the next conference, Harlan, the key vote, said that Coolidge was not the case on which to modify the rule. The facts were hopelessly convoluted. They should get rid of the Coolidge case and find a better test. He was sticking with Stewart on this one. Stewart's majority decision was announced June 21.
As the term closed, the exclusionary rule and the Fourth Amendment law stood largely where they had been when the term opened.
Blackmun wasn't having an easy time adjusting to the demands of the Court. At the Eighth Circuit Court of Appeals, he had used his clerks solely for mundane legal research. Blackmun had started to use his clerks the same way on the Supreme Court, but soon expanded their role slightly. On one occasion, he asked a clerk to research a question on jurisdiction and, as was customary, then circulated the resulting memo in his own name. It had barely left Blackmun's hands when a blistering response came in from Douglas, picking the legal research apart for overlooking obvious points. Douglas's memo was almost sadistic.
Blackmun was mortified. He realized that Douglas was right. He vowed to never again let his clerks be in a position to embarrass him in front of his colleagues. His clerks once more received very routine assignments, and Blackmun checked their work carefully.
After the first few weeks of oral argument, Burger sent Hugo Black a note saying that he had heard that by tradition a new Justice got to pick his "maiden" majority opinion. Black explained that the courtesy was often extended to a new Justice to steer him away from controversial opinions and make sure that he got a simple, unanimous opinion as his first task. The Chief said he would defer completing the assignment sheet until he could talk with Blackmun.
With unanimity the criterion, Burger and Blackmun didn't have a wide range of choices. Most of the cases argued the first few weeks had been hotly contested. So Blackmun finally decided to take one such case (Wyman v. James) that raised the question of whether welfare officials needed a search warrant to inspect a welfare recipient's home. He did the research himself, meticulously inspecting the trial record. He concluded that welfare officials could cut off benefits to persons who refused to allow inspectors into their homes. Likening welfare payments to private charity, Blackmun wrote that the public "rightly expects" some assurance that its funds are being spent in the proper manner. Blackmun saw in the record some evidence that the welfare mother's two-year-old child was being abused. He wrote in a footnote: "There are indications that all was not always well with the infant Maurice (skull fracture, a dent in the hand, a possible rat bite). The picture is a sad and unhappy one." Certainly the search was justified.
Blackmun concluded that if proper notice of a caseworker's visit was given, there was no need for a search warrant. If the recipients wouldn't allow the searches, they could forgo the welfare benefits. Caseworkers weren't police. They entered people's homes to assist, not to investigate.
The dissents, first by Douglas, then by Marshall joined by Brennan, were shrill. Douglas thought Blackmun's opinion outrageous. Marshall pointed out that previous Court rulings held that fire or housing inspectors could not demand the right to search businesses without a warrant He charged that the majority was setting one standard of protection against searches for the upper and middle classes, and another, lesser standard for the "lowly poor."
The dissenters, however, couldn't pry enough votes away from Blackmun to deny him a majority. Stewart was unhappy, but it was Blackmun's first opinion and he wanted to join. Black couldn't understand the opinion, but he too went along. Black
mun "will learn," he told his clerks.
Traditionally the two dozen-plus Supreme Court law clerks tried to have a group lunch during the term with each Justice. Blackmun's clerks were apprehensive when he accepted the invitation. Each of Blackmun's clerks had received his own share of abuse about the welfare opinion, and they knew their fellow clerks planned to ask their boss about it at the lunch.
One of Brennan's clerks started by mentioning a law school professor who planned to use Blackmun's opinion in a course entitled: "Has the Supreme Court Lost Touch with Reality?" How could Blackmun justify his opinion? the clerk asked.
Blackmun explained that the woman wasn't eligible for welfare anyway. He cited a footnote where he had written that the record in this case showed that the woman failed to satisfy the requirements for eligibility, had a bad attitude toward the caseworkers, was reluctant to cooperate, evasive and belligerent.
The room erupted. Many of the clerks were incredulous. Blackmun seemed to think he was still on a lower court, deciding a single case. Didn't he realize that he was creating the law of the land, setting precedent? Blackmun's clerks were embarrassed. Clearly if the recipient wasn't eligible for welfare, no precedent-setting decision should have been written. It was elementary.
More than anything, however, Blackmun often seemed paralyzed by indecision. The problem was greatest on cases where his was the swing vote.
As he left the bench one day early in the term, Harlan overheard Brennan discussing a crucial case (Younger v. Harris et al.) with Blackmun. It had been held over for three straight years, because the conference was deadlocked on the question of the power of federal courts to intervene in state court proceedings. Harlan, uncomfortable with lobbying, jokingly suggested to Brennan, "Why don't we let Harry confer by himself on these and we'll go back and get some work done."
Black also was concerned about Blackmun. "If he doesn't learn to make up his mind, he's going to jump off a bridge some day," Black remarked to his clerks. Black tried to help, and he would occasionally wander down the hall to Blackmun's chambers to provide encouragement. "Now Harry," Black once said, "you just can't agonize over it You have just got to vote."
But Blackmun plodded along, working day and night, trying to master the record in each case, and read all previous Court decisions in every given area. Blackmun not only couldn't see the forest but was overwhelmed by each tree, Black figured. On one case in which he had voted to join Blackmun's dissent, Black walked down to see how Blackmum was doing. He found his colleague working away as usual, with piles of law books spread all over. Black looked over the work. "That's the way to it, Harry," he said. "Strike for the jugular, strike for the jugular."
The long delays were strategically bad for Blackmun. As he struggled to get out his views, other justices filed theirs and moved on to new cases. His influence was slight. When he first arrived, Blackmun warned Burger that they would be tagged the "Minnesota Twins" after the baseball team for their home towns—the Twin Cities of St. Paul and Minneapolis. It took only half a year of voting together before Blackmun's prophecy came true. He was only surprised it had taken so long.
Still, it particularly offended him, because it was clear that the Chief was the dominant twin. The notion implied that Blackmun had no judicial mind of his own. But the fact remained that he and Burger had found themselves on opposing sides only twice in the first fifty cases decided by the Court. He never seemed to disagree with the Chief when it really counted. The clerk network had another name for Blackmun: "Hip pocket Harry." Burger, they felt, controlled not only his own vote but Blackmun's as well.
Burger brooded about his public image as a "conservative." The press liked to label Justices as conservatives, liberals or moderates. That was understandable, Burger felt. Most people needed the shorthand, because they didn't read opinions or study the Court. But the labels were misleading and unfair. He didn't think of himself as a conservative. The press had cast him in that role, comparing him unfavorably with their hero Earl Warren. Burger thought of himself as moderate. Warren had been an "activist." Burger was determined to correct his image, to vote with the liberal wing, to write some "liberal" opinions. That, he confided to his clerks, would confuse his liberal detractors in the press.
In one case (Griggs v. Duke Power Co.), a group of black laborers at the Duke Power Company in North Carolina had protested the company's requirement that they have high-school diplomas and pass intelligence tests in order to be promoted from laborer to the higher-paying job of coal miner. The laborers charged that the tests were simply a way of discriminating against blacks. They had lost in the lower courts and had petitioned for Supreme Court review. Burger had put their cert petition on the "dead list," a list of petitions that he felt did not even need to be considered at conference. Any single Justice could remove a case from the dead list for conference discussion, but those that remained on the dead list for a conference were automatically denied.
Although Brennan was supposed to be out of the case because he had once represented the company, he got Stewart to take it off the dead list. Brennan hoped the decision would go against his former client. The case was discussed, cert granted, and oral argument heard. The black laborers won.
The Chief assigned the opinion to himself. One of his clerks did virtually all of the research and drafting. Stewart was surprised by Burger's draft. It was well-written with first-rate reasoning. He was staggered, however, by the sweeping language of the opinion. "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited," Burger wrote.
Although the lower court had found that the company didn't intend to use the test to discriminate against blacks, Burger said that intentions were irrelevant—"Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups." N.A.A.C.P. lawyers and the liberal press praised the unanimous decision. Burger was proud of it.
Later that term, in a sex discrimination case (Phillips v. Martin Marietta), Burger wanted to rule in favor of a company that refused to hire women with preschool-age children. He strongly supported the company's policy. "I will never hire a woman clerk," Burger told his clerks. A woman would have to leave work at 6 p.m. to go home and cook dinner for her husband. His first clerk back in 1956 at the Court of Appeals had been a woman, he told them. It had not worked out well at all. As far as he was concerned, an employer could fire whomever he wanted and for whatever reason. That was the boss's prerogative.
When it was suggested that his position amounted to a declaration that part of the Civil Rights Act was unconstitutional, Burger angrily shut off the discussion. He didn't want to argue legal niceties. His experience showed him that women with young children just didn't work out as well as men in the same jobs. The employer was within his rights.
At conference, however, the majority voted the other way. Burger returned to his chambers and announced that he wanted a per curiam (unsigned opinion) drafted, ruling that unless the company could show that conflicting family obligations were somehow more relevant to job performance for women than for men, the company would have to lose. "It was the best I could do," Burger told his amazed clerks. The decision became another liberal opinion for the Burger Court.
A month later, Burger told his clerks that he intended to vote to uphold a state court decision ordering a community group to stop picketing near a real estate broker's home (Organization for a Better Austin v. Keefe). The organization had distributed literature in the broker's neighborhood accusing him of "blockbusting" in their neighborhood some miles away. A man's home was his castle, Burger told his clerks. The broker's home shouldn't be picketed. But after conference Burger told his clerks that he was writing an opinion to overturn the state court order and allow the group to continue picketing. The order halting it, he now said, interfered with the group's First Amendment rights of free speech and peaceable assembly.
> Burger would often write short dissents or concurrences to opinions scheduled to come down the following week. These short opinions were his gut reactions, often angry in tone. They expressed his notion of right and wrong, of common sense—his real political philosophy. He called them "little snappers."
His clerks usually asked to edit them. Blatant political and moral assertions could be rewritten in legal language or couched in terms of "judicial restraint," "strict constructionism," or "states' rights."
A few days later, in a calmer mood, Burger would frequently have second thoughts about these opinions. "Oh, I wasn't really serious about that," he would say briskly. "You didn't send it to the printer did you?"
"I have no plans to retire or not to retire," Hugo Black told reporters at a press conference two days before his eighty-fifth birthday in February 1971. Such questions were becoming more frequent. He was serving his thirty-third year on the Court. Only four Justices had served longer.
Privately, Black had been giving the notions of retirement and death considerable thought. The previous term, when he was hiring new clerks, he told one applicant: "You must realize that I may die. And I may retire. If you want the job with those risks, it is yours."