by Bob Woodward
Brennan thought he might push the Chief a bit further. He had already had his clerks prepare a draft opinion that partly renounced his old approach and, instead, extended the Stanley logic. But to send the draft around just now might be too provocative; clearly, it had been prepared beforehand. Worse, the Chief would see it as a blatant attempt to steal the majority opinion from him. So Brennan decided to alter his draft and try to persuade Burger that it was close enough to his own view to be incorporated into his opinion. The Chiefs work was a rough draft, almost conversational in tone. Certainly he would not object to a few suggestions.
However, the timing was important. There were six weeks before the term was to end. If something could be circulated in the second week of June, there would be no time for the Chief to rewrite his own opinion in response. Unless he adopted much of Brennan's memo as his own, he would take the chance that Brennan would get a majority.
In three weeks Brennan was ready with his memo. It began informally, but the 37-page document was structured as a majority opinion. Brennan admitted that he had been wrong in 1957, wrong in later attempts to define obscenity, wrong not to vote for Stanley, and wrong not to extend it
Brennan was willing, however, to retain a definition of obscenity for public places in order to protect children and unwilling viewers. State laws could prohibit any unsolicited example of pornography, or require that it be kept out of sight or in an area prominently labeled "adult materials." Flashy, explicit signs would have to come down. Still shots of sexual conduct from obscene movies would have to be taken off theater displays. Live sex shows in public could be banned.
Brennan had tailored his draft to capture at least the ground the Chief seemed willing to give. Books without pictures, and mere nudity, could not be banned.
Douglas was pleased to see Brennan's confession, but it was too little too late. He continued to hammer at him to go all the way: nothing could be banned. If Brennan retained a definition of obscenity—even to protect children and unwilling adults—the courts could some day use it to censor materials for consenting adults, Douglas argued.
Brennan, insisting that the Chief was approachable, circulated his draft on Tuesday, June 13.
The next day Burger circulated his response to Brennan's draft to the whole conference. This was record time for him. "I have your very interesting memo on the broad problem of the above case," Burger wrote. "In the short time you have had I marvel at how you have done this job. We need more exchanges of this kind to develop our thinking."
In view of "the lateness of the season," the Chief agreed, the Court had been unable to come up with a definition that will separate protected from non-protected "sex material."
I think I agree that people in the commercial world are uncertain of the standards. We are, and they merely reflect our uncertainty. I confess I do not see it as a threat to genuine First Amendment values to have commercial porno-peddlers feel some unease. For me the First Amendment was made to protect commerce in ideas, but even at that I would go a long way concerning ideas on the subject that has had a high place in the human animal's consciousness for several thousand years. In short, a little "chill" will do some of the "pornos" no great harm and it might be good for the country.
Extraordinary, thought Brennan. How could even the Chief feel that the Court could act on the basis of what an individual thought was "good for the country"?
Even accepting that the "Redrup technique" compounds uncertainty, I prefer it to a new, uncharted swamp.
So the Chief was willing to leave them in the business of reviewing, one by one, the hundreds of cases that came to them each year. But Brennan found other parts of the Chiefs memo to him somewhat more encouraging:
I strongly agree with you that there are some obscene materials not protected by the Constitution. [He also agreed that governments could] stop pandering and touting by mail or otherwise with brochures etc. that offend.
This had long been Brennan's primary concern.
I agree (if it is your view) that all public display that goes beyond mere nudity that depicts or suggests conduct can be barred. I think if it can be barred on 14th and Constitution Avenue [in public], it can be barred in a saloon and probably theatre.
In general I agree that traffic via words in print is in a different category from pictures, movies or live shows.
Burger also shared Brennan's concern about protecting children from pornography. "I consider the state free to make a serious felony out of any conduct that permits access of minors to non-protected material," he said. Most importantly, he would be willing to extend the Stanley logic to permit importing pornography for private use.
Brennan was still partially encouraged but wondered what the Chief had in mind. Surely his draft was not ready for publication. He went to see Burger to talk over the situation.
The next Monday, June 19, the Chief sent around a simple note. "In the present posture of the [obscenity] cases neither Justice Brennan nor I can make specific recommendations as to the disposition of the cases held for opinion. . . . We will discuss this at the June 22 Conference."
Brennan reassessed the situation. White, Blackmun and Powell seemed concerned with the need to give a publisher or seller fair warning that he could be prosecuted; he must be told what is obscene. If that hurdle could be overcome, they might follow the Chief's lead and permit the states to restrict obscene materials even from consenting adults.
To keep them from voting with the Chief, Brennan wanted them to take cases that did not involve unwilling viewers but rather cases in which consenting adults had sought out pornography.
One involved the sale of a pornographic novel without illustrations to an undercover police officer who asked to buy some pornography. The other two involved an adult movie theater and an adult bookstore, both plainly marked, both without offensive advertising outside, and both of which refused to admit juveniles. If those cases, involving only printed matter or consenting adults, could be argued early, Brennan might be able to show that his approach was preferable to the Chiefs redefinition of obscenity.
The conference on June 22 readily agreed with Brennan's suggestion to take the additional cases* and to argue them early in the next term. They also put over the three cases before them. They now had a package of eight cases that would present virtually every unanswered question in obscenity law.
Brennan could see that he had his work cut out for him in the coming year. He summoned one of Douglas's clerks and briefed him on what to pass along to Douglas in Goose Prairie: everything was fine; they had granted the new cases; Brennan was confident they would prevail in the fall.
On Powell's first day at the Court, Marshall had paid a courtesy call on his new colleague. He found Powell standing in his clerks' small office. The two men—Marshall carrying 250 pounds on a 6-foot-1 frame and Powell a skeletal 6-foot-3—stood uncomfortably for a moment.
"Do you have your capital punishment opinion written yet?" Marshall asked jovially, slapping Powell lightly on the back.
* Kaplan v. California; Paris Adult Theatre v. Slaton; Alexander V. Virginia.
Powell smiled tentatively. Was it possible that he was expected to have mastered such a difficult and consequential area of the law so rapidly? Had the others completed their opinions, even before the Court had considered the cases or heard oral argument?
"No, I haven't had time to consider that yet," he replied.
"Well, I wish you luck," Marshall said. "My wife Cissy is after me, and thinks we should string them all up. But," he added, patting a wad of papers in the inside pocket of his coat, "you'll see what I've written."
He slipped out the door with a chuckle.
Beneath the surface humor, Marshall was very concerned. The Court had ruled only on procedural questions in capital punishment cases. In just over a week, it was going to address the central question of whether the death penalty was among the "cruel and unusual punishments" prohibited by the Eighth Amendment. There were only five cases
to be argued* before the Court, but the decisions could determine the fate of about 700 prisoners across the country who were waiting on death row.
Marshall was opposed to the death penalty in any form. He considered it the most conspicuous example of the unfairness of the criminal justice system. It almost seemed a penalty designed for poor minorities and the undereducated. The rich and well-educated were rarely sentenced to death. They hired fancy lawyers. With his experience in the South, and a year spent during the Korean War investigating the cases of black GIs sentenced to death, Marshall knew very well how the system worked. The death penalty was the ultimate form of racial discrimination.
As he reviewed the situation, Marshall thought the prospects looked bleak. The only faintly positive sign was the Court's curious handling of death cases in the last several years, which reflected a deep ambivalence among his colleagues. The Justices had taken a series of preliminary conference votes on the death penalty, each retracted without having been made public.
In the 1968 term, the Justices had secretly voted 6 to 3 to strike down the Arkansas death penalty (Maxwell v. Bishop). State capital punishment laws, the conference had
* Aikens v. California, Furman v. Georgia, Branch v. Texas, Jackson v. Georgia, and Moore v. Illinois.
decided, must require, after a finding of guilty, a separate hearing on sentencing. This would allow a defendant to testify, and to present mitigating facts, without forcing him to take the witness stand during his trial.
Warren, Douglas, Harlan, Brennan, Fortas and Marshall had made up this 1968 majority. Black, Stewart and White had dissented. Warren had assigned the opinion to Douglas, who hurriedly drafted and circulated a sweeping opinion. Harlan had had difficulty with Douglas's opinion; it went too far, calling into question sentencing procedures, not only in death cases but in all criminal cases. Harlan had switched his vote and the comfortable 6-to-3 majority had become a very close 5-to-4. Before the opinion could be issued, Fortas had resigned, leaving the Court deadlocked, 4 to 4.
The next year, the tie vote on this case was broken when Warren's vote to strike down the law was replaced by Burger's to uphold it. But the new 5-to-3 decision was still too close for Harlan's comfort. He insisted that they put the case over again, to wait for a ninth justice.
Blackmun's vote to uphold the death penalty in the 1970 term (McGautha v. California) completed the shift. The 1968 secret vote of 6 to 3 to strike the law had become a 6-to-3 majority the other way.
Harlan wrote the opinion in McGautha that amounted to a limited procedural approval of existing death penalty laws. It held that juries did not have to be given definite standards to guide their sentencing decisions, and that the state did not have to provide the separate hearings—one for guilt and one for punishment—in capital cases.
After Harlan's opinion was announced, the conference met to determine which of the hundreds of persons on death row—whose appeals had been pending the outcome of this case—could now be executed.
Stewart balked. He pointed out they still had not decided whether the death penalty was cruel and unusual, and therefore forbidden by the Eighth Amendment. At his suggestion the conference agreed to take several cases to focus on that issue. The moratorium on executions would continue.
Douglas, however, objected. It was a phony issue. They had already decided the question by a secret vote in a 1967 case (Boykin v. Alabama), though the result had never been made public since the case was decided on other grounds. Only he and Marshall had voted to strike down the death penalty. Douglas had done so only because a man had been sentenced to die for armed robberies. Had it been a murder case, Douglas said, he would not have found the penalty cruel and unusual. That would be absurd. The death penalty had been around for centuries; it had been recently reaffirmed by several legislatures. It would be "frivolous" to grant a temporary reprieve while the Court pretended to consider an issue it had already settled.
Douglas circulated, and threatened to publish, a rare dissent from the granting of cert—as opposed to the more common practice of publishing dissents from a denial of cert. It would be cruel and unusual for the Court to raise the hopes of men on death row, only to execute them a year later. But Douglas failed to persuade his colleagues and withdrew his dissent.
Now, one year later, the Court was about to deal with the "cruel and unusual punishments" question. Marshall figured it was the final showdown. In his view, the odds that five justices would vote against the death penalty were not good; in fact, they were awful. His might be the only vote to abolish the penalty in all instances. Even if Douglas and Brennan came around, that would make only three votes. And capital punishment was now a hot political issue. Nixon had made the death penalty a foot soldier in his war on crime.
Still, Marshall thought that there was one factor working for him. Before his death, Black had predicted privately to his colleagues that the Court would eventually strike down the death penalty, not because of legal arguments, but because of the sheer numbers—700 men and women— awaiting execution on death row.
This argument had been part of the strategy of Marshall's old law firm, the Inc. Fund. The Fund had led the battle to block executions and had created an informal moratorium on the death penalty by litigating each case in the federal courts. There hadn't been an execution since 1967. Though Black believed the death penalty was constitutional, he predicted that the Inc. Fund strategy would ultimately prevail. In the end, a majority would not want that much blood on its hands.
Marshall had two clerks research the "cruel and unusual punishments" arguments. Though the death penalty was used at the time the Eighth Amendment was adopted in 1791, so were certain other punishments—branding, butchering ears and flogging. They had since been ruled "cruel and unusual." Earl Warren had written in a 1958 opinion (Trop v. Dulles) that the Eighth Amendment was not "static." It changed, guided by "the evolving standards of decency that mark the progress of a maturing society." It was time, Marshall reasoned, to demonstrate that maturity.
At oral argument on January 17, Anthony Amsterdam, a young law professor, presented the Court with what Marshall considered the best arguments for the abolition of the death penalty.
First, Amsterdam argued, the death penalty was imposed most frequently against minorities and the poor; statistics showed a clear pattern of discrimination. Second, the death penalty was imposed in an arbitrary and random fashion; there were no consistent criteria for determining who was executed and who was spared. Third, the death penalty could not be an effective deterrent, since it was so infrequently imposed. Fourth, the death penalty was unacceptable to contemporary society; eleven states had entirely abandoned it, and juries with an option to impose it more often than not declined to do so. This last was the evolving standards argument.
Charles Alan Wright; a professor of law at the University of Texas, argued in favor of the death penalty law. Wright said that the legislatures had purposefully given the death penalty option to the juries. The infrequency of imposition did not defeat its purpose. "I would think that it would be cause for rejoicing that we've become increasingly selective about imposing the ultimate and most severe penalty," he declared.
White interrupted Wright to ask whether he was not bothered by the arbitrarily infrequent way juries and judges seemed to be applying the penalty. Stewart pointed out that statistics showed that the juries' imposition of the penalty discriminated against blacks.
Wright agreed. He found both points troubling, but argued that neither rendered the penalty itself cruel and unusual. In his own view there might be some procedural defects in the administration of the laws. But the Court had really settled much of this in the McGautha case the previous year. "The Court having decided so recently and so decisively that jury sentencing is proper, that the jury does express the conscience of the community, I would think you'd need quite a powerful showing to change the Court's mind," Wright declared.
Though Marshall and Brennan agreed with all four of Amste
rdam's arguments, Douglas rejected the evolving standards argument. Individual rights and protections of the Bill of Rights were absolute. They did not change over time. Douglas had spent his career arguing that point. To give in on it would open up the Bill of Rights to judicial reinterpretation. The Court could as easily cut back on freedoms as extend them. But he was now convinced that so far as the death penalty was discriminatory it was cruel and unusual. He too would vote to strike it down.
Marshall now saw three solid votes to strike. On the other side, Burger and Rehnquist were solid votes to uphold. White, normally sympathetic to prosecutors and state legislators, was a likely third. Blackmun, Powell and Stewart would determine the future of the death penalty, Marshall believed.
Stewart's inclination was to vote to uphold the capital punishment laws. Amsterdam's arguments were seductive, but most did not bear up under close scrutiny. Were the death laws really discriminatory? More blacks received death sentences; but more blacks were convicted of capital offenses. Neither did Stewart buy the argument that capital punishment was ineffective as a deterrent. The statistics were not conclusive. The evolving-standards argument didn't wash either. A large majority of the states, at least thirty-eight, had death penalty laws. Some states, and the United States Congress, had recently enacted new capital punishment legislation.