by Bob Woodward
But that kind of strategy dilutes the integrity of the Court and makes the decisions here depend on the manipulative skills of a Chief Justice.
The Abortion Cases are symptomatic. This is an election year. Both political parties have made abortion an issue. What the parties say or do is none of our business. We sit here not to make the path of any candidate easier or more difficult. We decide questions only on their constitutional merits. To prolong these Abortion Cases into the next election would in the eyes of many be a political gesture unworthy of the Court.
Each of us is sovereign in his own right. Each arrived on his own. Each is beholden to no one.
Borrowing a line from a speech he had given in September in Portland, Douglas then made it clear that, despite what he had said earlier, he did in fact view the Chief and Blackmun as Nixon's Minnesota Twins. "Russia once gave its Chief Justice two votes; but that was too strong even for the Russians....
"I dissent with the deepest regret that we are allowing the consensus of the Court to be frustrated."
Douglas refined his draft three times, circulated it, and left for Goose Prairie.
The Court erupted in debate over whether Douglas was bluffing or was really willing to publish the document. Though sympathetic to his views, Brennan, Marshall and Stewart could not believe that Douglas would go through with it. No one in the history of the Court had published such a dissent. The Chief might be a scoundrel, but making public the Court's inner machinations was a form of treason. And the reference to the Russian Chief Justice with two votes was particularly rough. They pleaded with Douglas to reconsider. His dissent would undermine the Court's credibility, the principal source of its power. Its strength derived from the public belief that the Court was trustworthy, a non-political deliberative body. Did he intend to undermine all that?
Douglas insisted. He would publish what he felt like publishing. And he would publish this if the request to put over the abortion decision was not withdrawn.
But, the others argued, what good would it do to drag their internal problems into public view?
It would have a sobering influence on Blackmun, Douglas retorted. It would make it harder for him to change his mind over the summer.
Brennan's impatience with Douglas turned to anger. Douglas had become an intellectually lazy, petulant, prodigal child. He was not providing leadership. Douglas was never around when he was needed. His departure for Goose Prairie was typical. He was not even, for that matter pulling his share of the load, though he certainly contributed more than his share to the tension. The ultimate source of conflict was the Chief. But Douglas too was at fault.
Finally, Brennan gave up arguing.
Blackmun then took it up, pleading with Douglas to reconsider. He insisted that he was committed to his opinion. He would bring it down the same way the next term; more research would perhaps pick up another vote.
Douglas was unconvinced. He needed time to think it over. His clerks would remain instructed to publish the opinion if the cases were put over for re-argument.
But Blackmun had made his point. Douglas finally decided that he couldn't publish. It would endanger next term's vote on the abortion cases.
No longer speaking to his own clerks, whom he blamed for slow mail delivery to Goose Prairie, Douglas called Brennan and told him to have his dissent held. A memo came around to the Justices from Douglas's chamber asking for all the copies back.
The conference agreed to put over the abortion cases, but they would not announce their decision until the final day of the term.
Earlier at the March 24 conference, Stewart had found himself the senior member of a majority for the first time in his career. The case (Flood v. Kuhn) concerned Curt Flood, a former star outfielder for the St. Louis Cardinals, who had refused to be traded to the Philadelphia Phillies. He had filed an antitrust suit against professional baseball. Flood wanted to break the reserve clause that allowed teams to trade baseball players without their consent.
Oral argument had failed to clarify the issues. Former Justice Arthur Goldberg, in his first appearance before the Court since resigning in 1965 to become Ambassador to the United Nations, had offered such a poor presentation of Flood's case that his former colleagues were embarrassed.
Powell withdrew from the case, because he held stock in Anheuser-Busch, Inc., whose principal owner, August Busch, Jr., also owned the St. Louis Cardinals. The Chief, Douglas and Brennan voted for Flood, leaving Stewart to assign the opinion for a five-member majority.
Stewart thought that the opinion would be easy to write.
The Court had twice before decided that baseball was exempt from the antitrust laws. It was, Stewart said, "a case of 'stare decisis' double dipped." There seemed little chance of losing the majority as long as the two earlier precedents were followed. He assigned the opinion to Blackmun.
Blackmun was delighted. Apart from the abortion assignment, he felt that he had suffered under the Chief, receiving poor opinions to write, including more than his share of tax and Indian cases. He thought that if the antitrust laws were applied to baseball, its unique position as the national pastime would be undermined. A devoted fan first of the Chicago Cubs and later the Minnesota Twins, he welcomed this chance to be one of the boys.
With his usual devotion to detail, Blackmun turned to the Baseball Encyclopedia, which he kept on the shelf behind his desk. He set down minimum lifetime performance standards—numbers of games played, lifetime batting averages or earned-run averages. He picked out representative stars from each of the teams, positions, and decades of organized baseball. Then, closeted away in the Justices' library, Blackmun wrote an opening section that was an ode to baseball. In three extended paragraphs, he traced the history of professional baseball. He continued with a list of "the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided timber for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in season and off season: Ty Cobb, Babe Ruth .. There were more than seventy names. "The list seems endless," Blackmun wrote. He paid homage to the verse "Casey at the Bat," and other baseball literature. When he had finished, Blackmun circulated his draft
Brennan was surprised. He thought Blackmun had been in the library researching the abortion cases, not playing with baseball cards.
One of Rehnquist's clerks called Blackmun's chambers and joked that Camillo Pascual, a former Washington Senators pitcher, should have been included in the list of greats.
Blackmun's clerk phoned back the next day. "The Justice recalls seeing Pascual pitch and remembers his fantastic curve ball. But he pulled out his Encyclopedia and looked up his record. He decided Pascual's 174 wins were not enough. It is difficult to make these judgments of who to include but Justice Blackmun felt that Pascual is just not in the same category with Christy Matthewson's 373 wins. I hope you will understand."
Calling Blackmun's chambers to request that some favorite player be included became a new game for the clerks.
Stewart was embarrassed that he had assigned the opinion to Blackmun. He tried to nudge him into recognizing the inappropriateness of the opening section, jokingly telling him that he would go along with the opinion if Blackmun would add a member of Stewart's home-town team, the Cincinnati Reds.
Blackmun added a Red.
Marshall registered his protest. The list included no black baseball players. Blackmun explained that most of the players on his list antedated World War H. Blacks had been excluded from the major leagues until 1947.
That was the point exactly, Marshall replied.
Three black players were added—Jackie Robinson, Roy Campanella, and Satchel Paige.
Marshall decided to switch anyhow and write his own opinion in Flood's favor. The Court was now split 4 to 4, and word circulated that White was considering following Marshall. That would give him a majority.
White owed a great deal to professional sports. His career in football
had paid for a first-rate law school education. He remembered the years he had spent touring the country playing football. In those days, teams were real teams, brotherhoods of young men. It was different now. There were too many prima donnas, concerned only with their own statistics. White had difficulty feeling sorry for Curt Flood, who had turned down a $100,000 annual salary.
The antitrust issues were not easy in the case. White thought that if the federal laws did not apply, state antitrust laws might. His clerks used his hesitation to negotiate small changes in the Marshall opinion. White would probably join if the changes were made, one clerk offered.
When Marshall balked at a change that seemed trivial, his clerk protested that it was necessary to get White's vote.
"Says who?" Marshall asked. A White clerk, he was told.
"He'll never join," Marshall responded.
Finally, White indicated he would stay with Blackmun's opinion against Flood. But he flatly refused to join the section listing the baseball greats.
Blackmun ignored the insult. He still had only four votes. If the tie stood, no opinion would be published.
At the end of May, Powell's clerks made a last-ditch effort to get him back in the case. They knew that he favored Flood's position. Since he would be voting against the major leagues, he could not be accused of a conflict of interest, his clerks argued. He would only be hurting his own interests. It was in fact possible that he could be accused of conflict if he did not vote.
No, Powell told them. He was out and he would stay out.
The Court was still deadlocked in the last half of May. After all his work, it seemed that Blackmun was to be deprived of his opinion.
The Chief's Saturday visit to Blackmun, and Blackmun's subsequent withdrawal of the abortion opinion, had spawned vicious rumors among the clerks of vote trading. Then, as the term drew to a close, Burger announced that he would switch to the Blackmun opinion in the Flood case, giving him the fifth vote. He too, however, initially declined to join the first section.
After the opinion had come down, a clerk asked Blackmun why he hadn't included Mel Ott, the famous New York Giants right fielder on his list of baseball greats.
Blackmun insisted that he had included Ott.
The clerk said that the name was not in the printed opinion.
Blackmun said he would never forgive himself.
Earlier in the term, White's clerks had quickly fallen into the routine of Court life. Metal library carts full of cert petitions rolled into the chambers each week, and, as the term progressed, the time needed for processing each petition dropped from hours to minutes. But the improved pace did little to reduce the boredom of sifting through endless formalized pleas. Only the obscenity cases provided a break in the monotony. Many of these petitions were accompanied by the exhibits from the original trials—full-length motion pictures, tiny reels of peep-show film, boxes of magazines, books, an occasional set of glossy photos or playing cards. The exhibits circulated among the chambers for perusal by clerks and Justices.
As one of White's clerks went through the exhibits in two cases (Hartstein v. Missouri and Wiener v. California) , his interest went beyond mere titillation.
In 1967, the Court had given up a decade-long effort to define obscenity, and acknowledged the subjectivity of the task. It had declared (Redrup v. New York) that any material held not to be obscene by a majority of the Justices, regardless of their personal definitions of obscenity, was protected by the First Amendment. The Court had since reversed more than two dozen obscenity convictions under the Redrup decision.
In the pending cases, White's clerk checked to see whether the material violated his boss's personal definition of hard-core pornography. It was a definition that White had never written into an opinion—no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity. His clerk noted also that there was no evidence that the materials had been shown to minors or adults who had not willingly sought out the material. So he typed out his recommendation: "Reverse on Redrup." The lower court decision holding the materials obscene would be reversed without an opinion er oral argument. The Court would not further confuse the lower courts by expressing the Justices' lack of agreement. The clerk noted that White need not view the exhibits. They were clearly not obscene.
White sat at his oversized, glass-topped partners' desk reviewing his clerk's recommendations. When he came to the obscenity cases—and the recommendation that he skip viewing the exhibits—White bellowed, "Are you kidding?" He got up and went into the clerk's office, standing next to the chair reserved for him there, his feet apart as if he were ready for a physical challenge. Above the chair there were, two Daumier prints of a famous Paris obscenity trial; White had bought them in Europe. One portrayed a woman flashing her breasts at a panel of judges, who reeled back in horror. White had given a third print to Brennan, who had put it in a closet.
White's clerks often urged him to adopt the absolutist First Amendment position of Black and Douglas. They would hold that any exceptions to the First Amendment put the Court on a "slippery slope," where one exception justified another, and then another, until there would be little, if anything, left of the First Amendment.
As often as they brought it up, White insisted he would have none of it. "Don't give me that 'slippery slope' argument again," he would say. One step did not necessarily lead to another, reasonable lines could be drawn. "The important thing is to know when and how to stop the real censorship of ideas."
"Send in the exhibits," White now commanded the clerk. He felt obliged to view them before voting to reverse the lower courts.
The exhibits were no worse than the usual collection of pornography that found its way to the Court week after week. White flipped through the material. He quickly saw enough. White did not loathe pornography, as Blackmun and Burger did. It was simply that these were things for his son's eyes, perhaps, but never for his wife's or daughter's. He was bothered less by the material than by its ready availability in every major city across the country.
White also wanted an end to the waste of time spent in reviewing and "Redrupping" individual cases. He decided for the first time not to give Brennan, Stewart, Marshall and Douglas a fifth vote for reversing the obscenity convictions in these two pending cases. He was going to join the Chief and Blackmun in a dissent. He wanted to handle the obscenity cases differently, though he wasn't sure how.
White's move irked Brennan. Of course White was exasperated by the endless obscenity cases. So were all the Justices. "I'm sick and tired of seeing this goddamn shit," Brennan complained. But what choice did they have?
Brennan realized that the Redrup approach forced the lower courts to go back each time to the original exhibits to try to deduce what the Court had most recently ruled. Most of them had gotten the point. The Court was not inclined to allow the lower courts to deem obscene anything but the most explicit hard-core pornography.
Brennan was not ready to buy Douglas's absolutist position that nothing could be banned. But neither did he feel that the Court could sit back and let local bluenoses censor whatever they thought would stain the soul. The Redrup procedure was better than nothing—as long as he had the votes.
Brennan, like White, had his own private definition of obscenity: no erections. He was willing to accept penetration as long as the pictures passed what his clerks referred to as the "limp dick" standard. Oral sex was tolerable if there was no erection. In these two cases, the material passed Brennan's test.
Stewart was another vote to Redrup. Years before (Jacobellis v. Ohio, 1964), Stewart had written that only "hard-core" pornography could be banned, but conceded the subjective nature of any definition: "I shall not today attempt to further define the kind of materials I understand to be embraced within that shorthand definition; and perhaps I could never succeed in doing so," Stewart had said. "But I know it when I see it."
He had seen it during World War II, when he served as
a Navy lieutenant. In Casablanca, as watch officer for his ship, he had seen his men bring back locally produced pornography. He knew the difference between that hardest of hard core and much of what came to the Court He called it his "Casablanca Test."
Marshall, as usual more amused than shocked by the exhibits in the pending obscenity cases, was also a vote to Redrup. And Douglas, of course, was a fourth vote.
Since Black's departure, Douglas was the only First Amendment absolutist on the Court. He and Black had been certain that it was impossible to define obscenity. Any laws banning it, therefore, were doomed to be vague and unconstitutional. There could never be an obscenity law clear enough to meet the constitutional requirement that a person must know beforehand whether he is acting illegally.
The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place. And the original sinner, the father of obscenity law, the author of the first Court opinion that had attempted a definition, was Bill Brennan. In a 1957 case (Roth v. United States), Brennan had written an opinion holding that there was one category of expression, obscenity, that was not speech, and thus was not protected by the First Amendment and could properly be banned.