The Brethren

by Bob Woodward

  Marshall was now sure that the First Amendment was threatened by the Nixon Court. The only choice was to stand firmly with Douglas and Brennan.

  Blackmun began each day by breakfasting with his clerks in the Court's public cafeteria, and clerks from the other chambers had a standing invitation to join them. Blackmun would often spot a clerk from another chamber eating alone and invite him over. He seemed, at first, the most open, unassuming and gracious of the Justices.

  Breakfast-table conversation generally began with sports, usually baseball, and then moved on to the morning's headlines. There was an unspoken rule that any discussion of cases was off limits. Where other Justices might openly debate cases with the clerks, Blackmun awkwardly sidestepped each attempt. The law in general was similarly out of bounds. Blackmun turned the most philosophical of discussions about law around to his own experience, or to the clerk's family, or the performance of a younger sibling in school.

  The clerks in his own chambers saw a different side of Blackmun which betrayed more of the pressure that he felt. The stories were petty. An office window left open all night might set him off on a tirade. It was not the security that worried Blackmun, but the broken social contract—all clerks were supposed to close all windows each night. Number-two pencils, needle-sharp, neatly displayed in the pencil holder, need include only one number three or a cracked point to elicit a harsh word. If Blackmun wanted a document photocopied, and somehow the wrong one came back, he might simply fling it aside. An interruption, even for some important question, might be repulsed testily.

  The mystery of the Blackmun personality deepened. His outbursts varied in intensity and usually passed quickly. "Impatient moods," his secretary called them. But they made life more difficult; they added an extra tension.

  Yet none of his Court family—clerks, secretaries, or his messenger—judged Blackmun harshly. They all knew well enough the extraordinary pressures, real and imagined, that he worked under.

  From his first day at the Court, Blackmun had felt unworthy, unqualified, unable to perform up to standard. He felt he could equal the Chief and Marshall, but not the others. He became increasingly withdrawn and professorial. He did not enjoy charting new paths for the law. He was still learning. The issues were too grave, the information too sparse. Each new question was barely answered, even tentatively, when two more questions appeared on the horizon. Blackmun knew that his colleagues were concerned about what they perceived as his indecisiveness. But what others saw as an inability to make decisions, he felt to be a deliberate withholding of final judgment until all the facts were in, all the arguments marshaled, analyzed, documented.

  It was a horribly lonely task. Blackmun worked by himself, beginning with a long memo from one of his clerks, reading each of the major briefs, carefully digesting each of the major opinions that circulated, laboriously drafting his own opinions, checking each citation himself, refining his work through a dozen drafts to take into account each Justice's observations. He was unwilling, moreover, to debate the basic issues in a case, even in chambers with his own clerks. He preferred that they write him memos.

  Wearing a gray or blue cardigan sweater, Blackmun hid away in the recesses of the Justices' library, and his office had instructions not to disturb him there. The phone did not ring there, and not even the Chief violated his solitude. Working at a long mahogany table lined on the opposite edge with a double row of books, Blackmun took meticulous notes. He spent most of his time sorting facts and fitting them to the law in a desperate attempt to discover inevitable conclusions. He tried to reduce his risks by mastering every detail, as if the case were some huge math problem. Blackmun felt that if all the steps were taken, there could be only one answer.

  These abortion cases were his greatest challenge since he came to the Court. Beyond the normal desire to produce an opinion that would win the respect of his peers in the legal community, Blackmun also wanted an opinion that the medical community would accept, one that would free physicians to exercise then professional judgment.

  As general counsel at the Mayo Clinic, Blackmun had advised the staff on the legality of abortions the hospital had performed. Many of them would not' have qualified under the Texas and Georgia laws now in question.

  Blackmun plowed through both common law and the history of English and American law on the subject. He was surprised to find that abortion had been commonly accepted for thousands of years, and that only in the nineteenth century had it become a crime in the United States. At that time, abortion had been a very risky operation, often fatal. The criminal laws had been enacted largely to protect pregnant women.

  The use of antiseptics and the availability of antibiotics now made abortion relatively safe, particularly in the first few months of pregnancy. The mortality rates for women undergoing early abortions were presently lower than the mortality rates for women with normal childbirths. That medical reality was central for Blackmun. It was itself a strong medical justification for permitting early abortions.

  A decision to abort was one that Blackmun hoped he would never face in his own family. He presumed that his three daughters felt that early abortions should be allowed. He claimed to be unsure of his wife Dottie's position. But she told one of his clerks, who favored lifting the restrictions, that she was doing everything she could to encourage her husband in that direction. "You and I are working on the same thing," she said. "Me at home and you at work."

  By mid-May, after five months of work, Blackmun was still laboring over his memorandum. Finally, he let one of his clerks look over a draft. As usual, he made it clear that he did not want any editing. The clerk was astonished. It was crudely written and poorly organized. It did not settle on any analytical framework, nor did it explain on what basis Blackmun had arrived at the apparent conclusion that women had a right to privacy, and thus a right to abortion. Blackmun had avoided extending the right of privacy, or stating that the right to abortion stemmed from that right. He seemed to be saying that a woman could get an abortion in the early period of pregnancy. The reason, however, was lost in a convoluted discussion of the "viability of the fetus," the point at which the fetus could live outside the womb. Blackmun had added the general notion that as the length of the pregnancy increased, the states' interest in regulating or prohibiting abortions also increased. But there was no real guidance from which conclusions could be drawn. Blackmun had simply asserted that the Texas law was vague and thus unconstitutional.

  The clerk realized that the opinion could not settle any constitutional question. It did not assert, or even imply, that abortion restrictions in the early months of pregnancy were unconstitutional. The result of this opinion would be that restrictive laws, if properly defined by the states, could be constitutional.

  The draft seemed to fly in the face of Blackmun's statements to his clerks. "We want to definitely solve this," he had told them. But he seemed to be avoiding a solution.

  In the Georgia case, he had found that the law infringed on a doctor's professional judgment, his right to give advice to his patients. Blackmun proceeded from the doctor's point of view; a woman's right to seek and receive medical advice did not seem an issue.

  Blackmun's clerk, who favored an opinion that would establish a woman's constitutional right to abortion, began the laborious task of trying to rehabilitate the draft. But Blackmun resisted any modification of his basic reasoning or his conclusions. He circulated the memo to all chambers with few changes.

  Stewart was disturbed by the draft. Aside from its inelegant construction and language, it seemed to create a new affirmative constitutional right to abortion that was not rooted in any part of the Constitution. Stewart had been expecting a majority opinion. Blackmun's memo did not even have the tone of an opinion, merely of a tentative discussion.

  Stewart decided to write his own concurrence, specifying that family-planning decisions, including early abortions, were among the rights encompassed by the Ninth Amendment, which says that the people ret
ain other, unspecified rights beyond those enumerated in the Constitution. Rather than identify the rights that women or doctors have, Stewart preferred to say that states could not properly interfere in individuals' decisions to have early abortions. He circulated his memo two weeks after Blackmun's but immediately joined Blackmun's original.

  Douglas saw no shortage of problems with the Blackmun draft, but Blackmun had come a long way. At least it was a step in the right direction. Though Douglas was still holding on to his concurrence, he did not circulate it. Instead, he joined Blackmun.

  At the time, the Court was considering an antitrust case against a utility company, the Otter Tail Power Company, which operated in Minnesota. Douglas saw an opportunity to flatter Blackmun. "Harry, you're not a Minnesota Twin with the Chief," he told him. "I am the real Minnesota Twin. . . . We were both born in Minnesota and you were not" (Otter Tail Power Co. v. U.S.).

  Blackmun appreciated the point.

  "Furthermore, Harry, I belong to the Otter Tail County regulars. You can't belong, because you weren't born there."

  Douglas regaled Blackmun with stories of his father's life as an itinerant preacher in Otter Tail County, and he praised Blackmun's abortion draft. It was one of the finest presentations of an issue he had ever seen, he said.

  Blackmun was ecstatic. Douglas, the greatest living jurist, had freed him of the stigma of being Burger's double. Soon, Blackmun had five votes—his own and those of Douglas, Brennan, Marshall and Stewart. It was one more than he needed; it would have been a majority even if Powell and Rehnquist had participated.

  For White the term had its ups and downs like any other year at the Court. He had been a fierce competitor all his life. He loved to take control of a case, pick out the weaknesses in the other Justices' positions, and then watch them react to his own twists and turns as he pushed his own point of view. When he could not, which was often, he took his frustrations to the third-floor gym to play in the clerks' regular full-court basketball game.

  Muscling out men thirty years his junior under the boards, White delighted in playing a more competitive game than they did. He dominated the games by alternating savage and effective drives to the basket with accurate two-hand push shots from twenty feet. White consistently pushed off the clerk trying to cover him, calling every conceivable foul against the hapless clerk, while bitching about every foul called against himself. He regularly took the impermissible third step before shooting. The game was serious business for White. Each man was on his own. Teamwork was valuable in order to win, not for its own sake.

  One Friday afternoon White was out of position for a rebound, but he went up throwing a hip. A clerk pulled in the ball and White came crashing down off balance and injured his ankle.

  The Justice came to the office on crutches the next Monday: he would be off the basketball court for the rest of the season. He asked the clerks to keep the reason for his injury secret. The clerks bought him a Fussball game, a modern version of the ancient game of skittles. It was competition, so White enjoyed it, but it lacked for him the thrill of a contact sport like basketball—or law.

  On Friday, May 26, Byron White read a draft dissent to Blackmun's abortion decision that one of his clerks had prepared. He then remolded it to his liking. The structure of Blackmun's opinion was juvenile; striking the Texas law for vagueness was simply stupid. The law might have several defects, but vagueness was not among them. The law could not be more specific in delineating the circumstance when abortion was available—it was only to protect the life of the mother.

  Blackmun was disturbed by White's attack, but whether it made sense or not, it showed him that he had more work to do. The more he studied and agonized over his own memo, the less pleased he was. He needed more information, more facts, more insight. What was the history of the proscription in the Hippocratic oath which forbade doctors from performing abortions? What was the medical state of the art of sustaining a fetus outside the womb? When did life really begin? When was a fetus fully viable? What were the positions of the American Medical Association, the American Psychiatric Association, the American Public Health Association?

  These and dozens of other questions plagued Blackmun. His opinion needed to be stronger. It needed more votes, which could mean wider public acceptance. A nine-man court was essential to bring down such a controversial opinion. "I think we can get Powell," he told his clerks.

  One Saturday toward the end of May, the Chief paid Blackmun a visit, leaving his armed chauffeur-bodyguard in the outer office. Blackmun's clerks waited anxiously for hours to find out what case the Chief was lobbying. The Chief finally left, but Blackmun also departed without a word to his clerks. The next week, the Chief shifted sides to provide the crucial fifth vote for Blackmun's majority in an antitrust case against professional baseball (Flood v. Kuhn).

  The following Saturday, June 3, Blackmun drafted a memorandum withdrawing his abortion opinion. It was already late in the term, he wrote. Such a sensitive case required more research, more consideration. It would take him some time both to accommodate the suggestions of those in the majority, and to respond to the dissenters. Perhaps it would be best if the cases were reargued in the fall. He asked that all copies of his draft memo be returned.

  Douglas was once again enraged. The end of the year always involved a crunch. Of course, there was tremendous pressure to put out major opinions without the time to fully refine them. That was the nature of their work. The pressure affected them all. It was typical that Blackmun could not make up his mind and let his opinion go. Douglas had heard that the Chief had been lobbying Blackmun. This time, Burger had gone too far. The opinion had five firm votes. It ought to come down. It was not like cases with only four votes that might change when Powell's and Rehnquist's votes were added. Douglas also did not want to give the Chief the summer to sway Blackmun.

  Burger was taking the position that there were now five votes to put the case over to the next term—Blackmun, White, Powell, Rehnquist, and himself. Douglas couldn't believe it. Burger and White were in the minority; they should have no say in what the majority did. And Powell and Rehnquist had not taken part; obviously they could not vote on whether the case should be put over.

  The looming confrontation worried Blackmun. There were no written rules on such questions, and Douglas's apparent willingness to push to a showdown would further inflame the issue. Finally, Blackmun turned to Brennan, who was sympathetic. Obviously the opinion could not come down if its author did not want it to come down. But Brennan also wanted it out as soon as possible.

  Blackmun said he understood that Douglas did not trust him, but insisted that he was firm for striking down the abortion law. The vote would go the same way the next year. They might even pick up Powell. That would make the result more acceptable to the public. He would be able to draft a better opinion over the summer.

  Brennan was not so certain of Blackmun's firmness. At the same time, he did not want to alienate him. He agreed to tell Douglas that he too was going to vote to put the case over for re-argument. He was fairly certain Marshall and Stewart would join. That would leave Douglas protesting alone.

  Douglas was not pleased by the news of Brennan's defection. But the battle was not yet over. He dashed off a memo, rushed it to the secretaries for typing and to the printers for a first draft. This time, Douglas threatened to play his ace. If the conference insisted on putting the cases over for re-argument, he would dissent from such an order, and he would publish the full text of his dissent. Douglas reiterated the protest he had made in December about the Chief's assigning the case to Blackmun, Burger's response and his subsequent intransigence. The senior member of the majority should have assigned the case, Douglas said, and continued:

  When, however, the minority seeks to control the assignment, there is a destructive force at work in the Court. When a Chief Justice tries to bend the Court to his will by manipulating assignments, the integrity of the institution is imperilled.

  His
torically, this institution has been composed of fiercely independent men with fiercely opposed views. There have been—and will always be— clashes of views. But up to now the Conference, though deeply disagreeing on legal and constitutional issues, has been a group marked by good-will. Up until now a majority view, no matter how unacceptable to the minority, has been honored as such. And up until now the incumbents have honored and revered the institution more than their own view of the public good.

  Perhaps the purpose of THE CHIEF JUSTICE, a member of the minority in the Abortion Cases, in assigning the opinions was to try to keep control of the merits. If that was the aim, he was unsuccessful. Opinions in these two cases have been circulated and each commands the votes of five members of the Court. Those votes are firm, the Justices having spent many, many hours since last October mulling over every detail of the cases. The cases should therefore be announced.

  The plea that the cases be reargued is merely strategy by a minority somehow to suppress the majority view with the hope that exigencies of time will change the result. That might be achieved of course by death or conceivably retirement.

  Douglas knew a fifth Nixon appointment was a real possibility on a Court with a seventy-four-year-old man with a pacemaker; with Marshall, who was chronically ill; and with Brennan, who occasionally threatened to quit.