by Bob Woodward
Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court's being involved in this kind of controversy, this was perhaps an instance where it had to be involved.
Stewart had no intention, however, of declaring himself the Court's leading activist. The abortion advocates argued that the Court should extend its 1965 decision in a Connecticut birth-control case, Griswold v. Connecticut. A majority of the Justices had held in that case that, although no right to privacy was explicitly stated in the Constitution, it was implied from a number of the Amendments. They had ruled that Connecticut could not prohibit married couples from using birth-control devices. Abortion advocates wanted that constitutional right to privacy extended to abortion.
Stewart thought that the abortion advocates' argument was too drastic. He had dissented from the 1965 decision, and he was reluctant to renounce his position. It was simply unnecessary for the Court to create another new constitutionally based right.
In a case the previous year (U.S. v. Vuitch), when the Court had upheld restrictions on abortion in the District of Columbia, Douglas had argued in dissent that a physician's judgment on abortion was a professional judgment that should not be second-guessed. Maybe this was the approach.
Stewart thought he could expand Douglas's argument to show that some anti-abortion statutes inhibited a doctor's ability to exercise his best judgment. Since a state-licensed doctor was a professional, the laws should not interfere with his judgment on behalf of his patient. On that theory, Stewart could vote to knock out the Georgia law—which required that abortions be approved by two doctors and a hospital committee—without creating an explicit constitutional right to abortion. But he did not want to be the one to raise this issue in conference.
Douglas had presented this rationale the year before. Since he was the Justice most likely to point out any inconsistency by Stewart with his past positions, one of Stewart's clerks went to Douglas's chambers. Stewart was considering voting against the Georgia abortion law, he told one of Douglas's clerks. If Douglas were to resurrect his reasoning, it might help.
The clerks compared notes. It seemed that Blackmun had also asked his clerks to research the same point. Blackmun's high regard for doctors might make him susceptible to this argument. The message from Stewart's clerk was relayed to Douglas.
Douglas was not impressed. Stewart was a patrician, a Rockefeller Republican; bis constituencies were not the poor or women. He was "off in a cloud," hobbled by the noblesse oblige of America's upper class. Stewart was more concerned with the appearance of his jurisprudence than with its substance. Douglas was convinced that Stewart was out of touch with three quarters of American society. He used to make fun of Stewart's elitist Yale background. No, Douglas decided, there would be no special assistance for Stewart. As always, Douglas would present his own thoughts and let the others fend for themselves.
The buzzer summoned the seven Justices to conference that Thursday. Douglas's travel plans had caused it to be scheduled a day early.
Before dealing with the abortion cases, the conference took up Mitchum v. Foster, a case which involved a Florida "adult" bookstore that had been shut down by a state judge for peddling obscene materials. Mitchum posed a similar question of jurisdiction that was presented in the abortion cases. Could the bookstore owner go into federal court before the state courts had finished with the case?
Stewart concluded that, despite restrictions the Court had previously placed on federal-court intervention, the doctrine of nonintervention had its limits. The federal courts must be allowed to intervene wherever a glaring constitutional violation was taking place. Contrary to Douglas's expectation, Stewart joined Douglas, Brennan and Marshall to make it 4 to 3 for asserting federal jurisdiction.
Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court did have jurisdiction. Suddenly, unexpectedly, the Court found itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions?
The Chief had some difficulty in summarizing the cases. The Georgia law, requiring approval by two other doctors and then a hospital committee, put unusual restrictions on a physician who wanted to perform an abortion.
As Stewart had hoped, the discussion focused on the professional rights of a doctor seeking to perform an abortion, rather than on the rights of a woman trying to obtain one. Both Stewart and Blackmun were sympathetic to the arguments for lifting some restrictions on physicians. Each Justice focused on a different aspect of the case. As discussion continued, their positions emerged:
The Chief strongly in favor of upholding the state abortion laws, but not casting a clear vote;
White also for upholding;
Douglas, Brennan and Marshall strongly in favor of striking down the abortion laws on broad grounds of women's constitutional rights;
Stewart and Blackmun in favor of striking down at least portions of some of the laws, if only on narrower grounds of professional discretion.
These are difficult cases, the Chief said. No one could really tell how they would come out until the final drafting was done. The cases might even be candidates for re-argument after the two new Justices were sworn in.
Brennan and Marshall counted the vote 5 to 2—Douglas, Brennan, Marshall, Stewart and Blackmun for striking the laws; the Chief and White dissenting.
Douglas, however, thought there were only four votes to strike the laws. Blackmun's vote was far from certain. He could not be counted on to split with the Chief on such an important issue.
For his part, Blackmun was for some kind of limited ruling against portions of the law, but he had not decided what to do.
White believed the vote was three for striking—Douglas, Brennan and Marshall; three for upholding—White, Stewart, and Blackmun; and the Chief, who had passed, but clearly had strong feelings for upholding.
Stewart told his clerks, "We're going to face the abortion issue squarely," and there seemed to him to be a majority to strike the laws. The puzzle was Blackmun.
The Chief's assignment sheet circulated the following afternoon. Each case was listed on the left side in order of the oral argument, the name of the Justice assigned to write each decision on the right.
It took Douglas several moments to grasp the pattern of the assignments, and then he was flabbergasted. The Chief had assigned four cases in which Douglas was sure the Chief was not a member of the majority. These included the two abortion cases, which the Chief had assigned to Blackmun. He could barely control his rage as he ran down the list. Was there some mistake? He asked a clerk to check his notes from the conference. Douglas kept a docket book in which he recorded his tabulation of the votes. It was as he suspected.
In the Florida bookstore case, which raised a similar jurisdictional question as the abortion cases, and in which the Chief was a member of the minority, Burger had not only assigned the case but assigned it to another member of the minority. Douglas was all the more incredulous, since this case provided the basis for jurisdiction in the two abortion cases.
In another case (Gooding v. Wilson), the Chief had assigned a case in which he and Blackmun were a two-vote minority. Douglas, as the senior justice in the majority, had already assigned this case at conference to Brennan.
In a fifth case (Alexander v. Louisiana), the Chief had been in the majority but had assigned Stewart, a member of the minority, to write. Stewart sent the Chief a memo declining for that reason.
Never, in Douglas's thrrty-three years on the court, had any Chief Justice tried to assign from the minority in such fashion. For two terms now there had been incidents when the Chief had pleaded ignorance, had claimed he hadn't voted, had changed his vote. Until now they had been isolate
d instances.
At the first conference of the term, in a prison case (Younger v. Gilmore), the Chief had taken a position against the other six and, to Douglas's astonishment, attempted to assign the decision to himself.
Douglas had always been deferential to the Chief. As much as he despised Burger, he knew the Chief Justice's prestige determined the Court's: to an extent, its reputation could not be greater than his. Douglas might have differed with other Chief Justices, but he always respected their office. Occasionally, as in Warren's case, the Chief provided brilliant leadership. Douglas was not one to block a Chief's prerogatives; normally, he tended to his own business.
But the prison case had been too much. Douglas had simply gone ahead and assigned Marshall to write a majority per curiam. He had then informed Burger that he had made the assignment because the Chief had not been in the majority. The incident had hurt Burger's feelings. He had not voted at conference, he explained in a memo. He had merely given his preliminary view. By the time of the assignment, he had become a member of the majority. He would have drafted a fitting majority opinion. But that time, the Chief had backed down.
Since then, Douglas had let other misassignments slip by. "God, I miss Hugo," Douglas lamented to friends whenever Burger manipulated assignments. "Burger would never have dared pull that if Hugo were around." As senior Associate Justice, Black had helped keep the Chief within bounds. To Douglas's dismay, that role now fell almost exclusively to him.
Four misassignments at one time, however, was simply too much to let pass. Douglas was convinced that as the senior member of the majority, he should have assigned all four of the cases. What particularly bothered him was that the Chief had given the abortion cases to Blackmun, his personal ally. Blackmun had voted with the Chief nearly every time the previous term. The Chief might as well have assigned the abortion cases to himself.
On Saturday, December 18, Douglas drafted a scathing memo to Burger, with copies to the other Justices. He, not the Chief, should have assigned the opinions in four of the cases. And, Douglas added, he would assign the opinions as he saw fit
The Chiefs response was back in a day. He conceded error in two of the cases, but insisted that the voting in the two abortion cases was too complicated. "There were . . . literally not enough columns to mark up an accurate reflection of the voting," Burger wrote. "I therefore marked down no votes and said this was a case that would have to stand or fall on the writing, when it was done.
"That is still my view of how to handle these two sensitive cases, which, I might add, are quite probable candidates for reargument."
Douglas ascribed to Burger the most blatant political motives. Nixon favored restrictive abortion laws. Faced with the possibility that the Court might strike abortion laws down in a presidential-election year, the Chief wanted to stall the opinion, Douglas concluded.
Blackmun was by far the slowest writer on the Court. The year was nearly half over and he had yet to produce a first circulation in a simple business case that had been argued the first week (Port of Portland v. U.S.). It was the kind of case in which Douglas produced drafts within one week of conference. But in the abortion cases, Douglas had a deeper worry. The Chief was trying to manipulate the outcome.
Blackmun might circulate a draft striking portions of the restrictive abortion laws. But as a judicial craftsman, his work was crude. A poor draft would be likely to scare off Stewart, who was already queasy, and leave only four votes. Or if Blackmun himself were to desert the position— a distinct possibility—precious time would be lost. Either defection would leave only a four-man majority. It would be difficult to argue that such a major decision should be handed down on a 4-to-3 vote. There would be increasing pressure to put the cases over for rehearing with the two new Nixon Justices. This was no doubt exactly the sort of case that Nixon had in mind when he chose Powell and Rehnquist
Blackmun was both pleased and frightened by the assignment. It was a no-win proposition. No matter what he wrote, the opinion would be controversial. Abortion was too emotional, the split in society too great Either way, he would be hated and vilified.
But from Blackmun's point of view, the Chief had had little choice but to select him. Burger could not afford to take on such a controversial case himself, particularly from the minority. Douglas was the Court's mischievous liberal, the rebel, and couldn't be the author. Any abortion opinion Douglas wrote would be widely questioned outside the Court, and his extreme views might split rather than unify the existing majority. Lastly, Blackmun had noticed a deterioration in the quality of Douglas's opinions; they had become increasingly superficial
Brennan was certainly as firm a vote for striking down the state abortion laws as there was on the Court. But Brennan was the Court's only Catholic. As such, Blackmun reasoned, he could not be expected to be willing to take the heat from Catholic anti-abortion groups. Marshall could not be the author for similar reasons: an opinion by the Court's only black could be unfairly perceived as specifically designed for blacks. That left only Stewart Blackmun believed that Stewart would certainly relish the assignment, but he clearly had trouble going very far.
Blackmun was convinced that he alone had the medical background and sufficient patience to sift through the voluminous record for the scientific data on which to base a decision. He was deeply disturbed by Douglas's assumption that the Chief had some malicious intent in assigning the abortion cases to him. He was not a Minnesota Twin.
True, Blackmun had known the Chief since they were small children and had gone to Sunday school together. They had lived four or five blocks apart in the blue-collar Daytons Bluff section of St. Paul. Neither family had much money during the Depression. The two boys had kept in touch until Blackmun went to a technical high school.
Blackmun's seven years at Harvard, however, put the two men worlds apart. Burger had finished local college and night law school in six years and was already practicing law when Blackmun came back to clerk for a judge on the Court of Appeals. Blackmun was best man at Burger's wedding, but the two drifted apart again as they established very different law practices.
Blackmun tried to tell his story every chance he got. His hands in his pockets, jingling change uncomfortably, he would explain how he had practiced in Minneapolis, where large law firms concentrated on serving major American corporations. Burger had practiced in St. Paul, across the river, in the political, wheeler-dealer atmosphere of a state capital.
"A Minneapolis firm," Blackmun would say, "will never practice in St. Paul or vice versa." Left unsaid was the disdain so obvious in the Minneapolis legal community for St. Paul lawyers.
But Blackmun was a hesitant and reserved storyteller, and he was never sure that the others got the message. Douglas, however, should have realized by now that Harry Blackmun was no Warren Burger twin.
Blackmun had long thought Burger an uncontrollable, blustery braggart. Now, once again in close contact with him, he was at once put off and amused by the Chief's exaggerated pomposity,. his callous disregard for the feelings of his colleagues, his self-aggrandizing style. "He's been doing that since he was four," he once told Stewart.
Blackmun was just as aware as Douglas was of the Chief's attempts to use his position to manipulate the Court. Douglas was correct to despise that sort of thing. But this time, Blackmun felt, Douglas was wrong. When he arrived at the Court, Blackmun had assumed the Chief's job as scrivener for the conference. Burger had finally given up trying to keep track of all the votes and positions taken in conference, and had asked Blackmun to keep notes and stay behind to brief the Clerk of the Court. Even then the Chief sometimes misstated the results. Blackmun would deftly field the Chief's hesitations, filling in when he faltered. When Burger misinformed the Clerk of the Court, Blackmun's cough would cue him.
"Do you recall what happened there, Harry?" the Chief would then say. "My notes seem to be a bit sporadic."
Blackmun would fill in the correct information as if Burger had initiated the re
quest.
Part of the problem was that the Chief spread himself too thin. He accepted too many social, speaking and ceremonial engagements, and exhibited too little affection for the monastic, scholarly side of the Court's life. As a result, Burger was often unprepared for orals or conference. Too often, he had to wait and listen in order to figure out which issues were crucial to the outcome. His grasp of the cases came from the summaries, usually a page or less, of the cert memos his clerks prepared. The Chief rarely read the briefs or the record before oral argument.
The problem was compounded by Burger's willingness to change his position in conference, or his unwillingness to commit himself before he had figured out which side had a majority. Then, joining the majority, he could control the assignment. Burger had strained his relationship with everyone at the table to the breaking point. It was as offensive to Blackmun as it was to the others. But one had to understand the Chief. For all his faults, here was a self-made man who had come up the ladder rung by rung. Blackmun did not begrudge him his attempts at leadership.
The abortion assignment really amounted to nothing more than a request that Blackmun take first crack at organizing the issues. It was one of those times when the conference had floundered, when the briefs and oral arguments had been inadequate, when the seemingly decisive issue in the case, jurisdiction, had evaporated. The Court had been left holding the bull by the tail.