The Brethren

by Bob Woodward

  The parallel with Harlan was unmistakable when Powell became the swing vote in two cases that had been held over from the previous term (Apodaca v. Oregon and Johnson v. Louisiana). Both cases involved the question of whether juries must be unanimous in their verdicts in criminal cases. The year before, Douglas, Brennan, Stewart and Marshall had said yes. Burger, Black, White and Blackmun had said no. Harlan had staked out a unique position; he had held that juries must be unanimous in federal trials but not in state trials. Undecided, the case had been put over.

  After it was reargued, and with Black and Harlan gone, Rehnquist voted as Black had. The Court was again split 4 to 4. Powell did not vote, but after studying the long draft that Harlan had had his clerks prepare the year before, Powell adopted Harlan's position, splitting his vote by voting one way for federal trials and the other on state trials.

  Burger tried to get Powell to switch. White ordered one of his clerks to write a "hatchet job" on Powell's opinion that would highlight the inconsistency. Powell would not budge. Brennan was unhappy with the outcome, but he took consolation in the fact that Powell had at least chosen to follow Harlan rather than Burger. Brennan liked to tell his clerks that Harlan had been the "only real judge" on the Court in the years of Brennan's service, the only Justice who weighed the legal issues with sufficient dispassion.

  Powell was to be the swing vote in three important First Amendment cases (Branzburg v. Hayes, U.S. v. Caldwell, In re Pappas) that dealt with the question of whether news reporters had to reveal to grand juries the identities of confidential sources. After much hesitation, Powell finally decided to give White a fifth vote for an opinion declaring that reporters, like all other citizens, had to give information to grand juries. But Powell's vote came with a separate concurrence, with qualifications that suggested that the issue might have to be reconsidered if reporters were harassed by grand juries. Again, it was reminiscent of Harlan. He had used his crucial swing vote to limit the effect of a majority opinion.

  In dissent, Stewart called attention to Powell's important qualifications, which, Stewart said, "leaves room for the hope that in some future case the Court may take a less absolute position in this area."

  Brennan found additional comfort during Powell's initial months as a Justice. Before coming to the Court, Powell had publicly supported the Nixon administration's claims that domestic radicals could be wiretapped without the customary warrants from a judge. But in a case that raised that very issue (U.S. v. U.S. District Court) Powell reassessed his views and wrote a strong majority opinion rejecting each of the administration's arguments. Burger had tried to assign the case to White, who, along with himself, wanted to duck the central constitutional question of whether the warrantless wiretap violated the Fourth Amendment.

  White rejected the assignment, noting that he and the Chief were alone in their view. Douglas immediately reassigned the case to Powell, who held firm in the face of Burger's continuous pressure not to write a broad constitutional ruling.

  From Brennan's perspective, the initial impact of Nixon's new appointees was not as bad as he had feared. Rehnquist was a rigid ideologue willing, even anxious, to overturn the work of the Warren Court. Yet no major Warren Court precedent had been overruled that term, and Powell was the main reason.* He seemed determined to be his own man, and he remained as flexible and reachable as Rehnquist was inflexible, unreachable. Powell had positioned himself in the center, along with Stewart and White.

  * In Kirby v. Illinois, Powell was again a swing vote and he took a middle course. He refused to extend a Warren Court precedent and require that the state provide lawyers at all lineups. At the same time, he refused to join an effort to overrule the Warren precedent itself.

  And since Stewart and White went in opposite directions on so many key issues, Powell was becoming the true swing vote. There was now someone else in the center who might provide a fourth or fifth vote for the liberals.

  And another vote was softening up on the right. Blackmun seemed to be trying to push away from the Chief.

  The four main death penalty cases had not resolved a fifth one (Moore v. Illinois). Lyman A. "Slick" Moore had been sentenced to death for a shotgun murder, but his appeal raised issues other than the "cruel and unusual" nature of the death penalty. With the death penalty now struck down, the Court had to decide these other issues— or Moore was doomed to life in prison.

  Moore argued that he had been unfairly convicted. The prosecution had withheld from the defense the fact that the three principal witnesses who claimed to have heard a "Slick" brag of the murder had all told police that they didn't think this Moore was the same "Slick." A judge had also permitted prosecutors to wave a sawed-off shotgun in front of the jury, though the prosecution admitted at trial that it was not the murder weapon.

  At conference, the vote was 7 to 2 to uphold Moore's conviction, with Marshall and Douglas the only dissenters. Moore would not get a new trial, but the death penalty decision in the other four cases would keep him from being executed.

  The Chief assigned the case to Blackmun. As usual, Blackmun was late with his circulation. Douglas expressed his exasperation over the delay at conference. "Circulations from Harry are like returns in an election from rural counties—late," Stewart once said.

  When the opinion finally came around, it said the information, if withheld, did not prove Moore's innocence, but only tended to show that he was not the same man who had bragged about the murder. Waving the shotgun before the jury, Blackmun stated, was not a sufficiently significant error to justify a new trial.

  Marshall was upset. During his days of criminal-law practice, he had seen many men convicted by distorted presentations of the facts. He had a clerk prepare a detailed analysis of the evidence, challenging Blackmun's reading.

  The identification by eyewitnesses had been crucial to obtaining the conviction and Blackmun was ignoring many of the facts damaging to their testimony. This was a miscarriage of justice. Marshall's analysis was circulated as a dissent. Blackmun responded in a set of footnotes arguing his own version of the facts.

  Powell and Stewart quickly switched their votes, and Marshall needed only one more to take away Blackmun's majority. His friend Brennan would surely provide the fifth vote. Brennan, after all, had been a moving force behind a whole series of cases that required prosecutors to turn over all exculpatory evidence to the defense.

  One of Brennan's clerks thought that if Brennan had seen the facts as Marshall presented them, he would not have voted the other way. He went to talk to Brennan and, thirty minutes later, returned shaken. Brennan understood that Marshall's position was correct, but he was not going to switch sides now, the clerk said. This was not just a run-of-the-mill case for Blackmun. Blackmun had spent a lot of time on it, giving the trial record a close reading. He prided himself on his objectivity. If Brennan switched, Blackmun would be personally offended. That would be unfortunate, because Blackmun had lately seemed more assertive, more independent of the Chief. Brennan felt that if he voted against Blackmun now, it might make it more difficult to reach him in the abortion cases or even the obscenity cases.

  Sure, "Slick" Moore deserved a new trial. But more likely than not, it would result in his being convicted again. After all, Moore had a long record. He was not exactly an angel. Anyway, the Court could not concern itself with correcting every injustice. They should never have taken such a case, Brennan said. He felt he had to consider the big picture.

  "He won't leave Harry on this," Brennan's clerk reported to Marshall's clerk.

  The clerks were shocked that such considerations would keep a man in prison. They wondered whether Brennan still would have refused to switch if the death penalty had not been struck.

  Marshall's clerk asked his boss to talk to Brennan. Marshall refused. It was not his style. He resented pressure from the Chief and he was not about to imitate his methods.

  Marshall's clerk made a final appeal through Brennan's clerks.

  Brenna
n had his priorities. His priority in this case was Harry Blackmun. There would be no new trial for "Slick" Moore.

  1972 Term

  Earl Warren and Warren E. Burger.

  An informal photo of the Burger Court in 1977. Left to right: John Paul Stevens, Lewis F. Powell, Jr., Harry A. Blackmun, William H. Rehnquist, Thurgood Marshall, William J. Brennan, Jr., Warren E. Burger, Potter Stewart, Byron R. White.

  Harry A. Blackmun in chambers.

  y o

  William H. Rehnquist in chambers.

  Thurgood Marshall with his clerks in chambers.

  The Burger Court, 1976. Left to right, front row: Byron R. White, William J. Brennan, Jr., Warren E. Burger, Potter Stewart, Thurgood Marshall: second row: William H. Rehnquist, Harry A. Blackmun, Lewis F. Powell, John Paul Stevens.

  Harry Blackmun returned to Rochester, Minnesota, for the summer of 1972 and immersed himself in research at the huge Mayo Clinic medical library. Rochester and the clinic were home to Blackmun, a safe harbor after a stormy term. He worked in a corner of the assistant librarian's office for two weeks without saying a word to anyone on the Mayo staff about the nature of his inquiry.

  In his summer office in a Rochester high-rise, Blackmun began to organize the research that would bolster his abortion opinion. He talked by phone nearly every day with one of his clerks who had agreed to stay in Washington for the summer.

  Blackmun pondered the relevance of the Hippocratic oath, which prohibits doctors from performing abortions. He also wanted to understand the positions of the medical organizations and to learn more about the advances in sustaining the life of a fetus outside the womb.

  One by one, new elements found their way into his draft. His clerk worked each change into the text back in Washington. The language remained Blackmun's; the more rigorous analysis was the work of the clerk. For the first time, the right to privacy emerged explicitly. It was not absolute. It was limited by the state's interest in protecting the pregnant woman's health and the potential life of the fetus.

  As they developed their analytic basis, Blackmun and his clerk tried to answer the crucial question: when did the state's interest in protecting the life of the fetus become overriding and outweigh the woman's right to privacy? Clearly there was such a point. The state's interest increased with time. But no definite answer could be derived from the Constitution.

  Blackmun turned to medicine. Doctors often divided pregnancies into three equal stages, or trimesters, each of roughly three months. Abortions were generally safe in the first trimester and, under proper medical conditions, could be performed safely in the second. It was at about this time, at the end of the second trimester, that the fetus became viable, or capable of living outside the womb. That was at about twenty-four to twenty-eight weeks, six months for all practical purposes. Therefore, the two medical interests—protecting both the health of the mother and the potential life of the fetus—seemed to converge and become overriding at about this six-month point. Abortions during the first two trimesters could and should be permitted. The draft gradually emerged as a strong, liberal prescription. It would prohibit states from interfering until the third trimester.

  The clerk who was working on the opinion began to worry that one of the other clerks, strongly opposed to abortions, might try to change their boss's mind. He took no chances. Each night he carefully locked up the work he had been doing for Blackmun. At the end of the summer, he carefully sealed the latest draft in an envelope, put his initials across the tape, and had it locked in Blackmun's desk. Only Blackmun's personal secretary knew where it was.

  Powell also made abortion his summer research project As a young lawyer in Richmond in the 1930s, Powell had heard tales of girls who would "go away" to Switzerland and New York, where safe abortions were available. If someone were willing to pay for it, it was possible to have an abortion.

  Powell understood how doctors viewed abortion. His father-in-law had been a leading obstetrician in Richmond, and his two brothers-in-law were obstetricians. Powell had heard all the honifying stories of unsanitary butchers and coat-hanger abortions.

  Nevertheless, Powell came quickly to the conclusion that the Constitution did not provide meaningful guidance. The right to privacy was tenuous; at best it was implied. If there was no way to find an answer in the Constitution, Powell felt he would just have to vote his "gut." He had been critical of Justices for doing exactly that; but in abortion, there seemed no choice.

  When he returned to Washington, he took one of his law clerks to lunch at the Monocle Restaurant on Capitol Hill. The abortion laws, Powell confided, were "atrocious." His would be a strong and unshakable vote to strike them. He needed only a rationale for his vote.

  In a recent lower court case, a federal judge had struck down the Connecticut abortion law.* This opinion impressed Powell. The judge had said that moral positions on abortion about which each side was so sure "must remain a personal judgment, one that [people] may follow in their personal lives and seek to persuade others to follow, but a judgment they may not impose upon others by force of law." That was all the rationale Powell needed.

  Brennan and Douglas worried that votes might have shifted since the previous spring. Blackmun remained a question mark, Stewart might defect, and they were not sure what Powell would do.

  At conference on October 12, Blackmun made a long, eloquent and strongly emotional case for striking down the laws. Stewart too seemed ready to join. But the big surprise was Powell. He made it 6 to 3.

  Immediately after conference, Douglas called Blackmun to tell him that his presentation had been the finest, he had heard at conference in more than thirty years. He hoped the call would sustain Blackmun for the duration.

  Before the end of October, Blackmun's new draft in the abortion case was circulated to the various chambers.

  Brennan read it carefully. He waded through the positions of the medical professional organizations, the expanded historical section, the long-winded digest of the medical state of the art. Despite all this, Blackmun's bottom line was acceptable. The states would be prohibited from regulating abortions until "viability." That meant state regulation only during the third trimester. But Brennan spotted a weakness in the argument. Connecting the state's interest in the fetus to the point of viability was risky. Blackmun himself had noted that medical advances made fetuses viable increasingly early. Scientists might one day be capable of sustaining a two-week-old fetus outside the womb.

  *Abele v. Markle.

  Advances in medicine could undermine the thrust of the opinion.

  Brennan had other concerns. Blackmun had focused on the rights of the doctor and the rights of the state. The most important party, the woman, had been largely neglected. Her rights were the ones that needed to be upheld.

  Brennan found yet another analytical fault in the draft Blackmun had discussed at length the state's dual interests in protecting the pregnant woman's health and the potential life of the fetus. Both interests were closely intertwined in Blackmun's draft. Brennan thought they were quite distinct He handed Blackmun's draft to one of his clerks. "It doesn't do it," he said.

  Brennan's clerks worked up a long memorandum. The delicate question, however, was how to communicate Brennan's thoughts to Blackmun. If Brennan phoned and said, "Harry, here are my ideas," Blackmun might be intimidated or fumble for months and still not change the draft adequately. On the other hand, if Brennan sent a x printed opinion to the conference, Blackmun might think he was trying to steal the majority. The last thing Brennan wanted was to author the Court's abortion decision. He could imagine too vividly what the Catholic bishops would say.

  In mid-November, Brennan took his clerks' memo and recast it as a series of casual thoughts and suggestions. It was important that it not appear to be an alternative draft. Brennan addressed a cover memo to Blackmun saying he fully agreed with his draft but wanted to pass along some ideas. Brennan's thoughts ran forty-eight pages. Copies were sent to all the Justices.


  Blackmun liked some of Brennan's suggestions. He quickly sent a memo to the Justices saying that he was incorporating them. Before he revised his draft, however, he decided that there was another set of views to be taken into account

  The Chief had made it clear to Blackmun that he would "never" join the draft as it stood, permitting unrestricted abortions up to viability, or the end of the second trimester. Blackmun wanted the Chiefs vote, and he thought he saw a way to get it while still taking into account Brennan's suggestions. Instead of the one demarcation line, viability, Blackmun would create two. This would also be more medically sophisticated; it would show that the two state interests—protecting the pregnant woman's health and protecting potential life of the fetus—arose at different times. He settled on a formula.

  1.First 12 weeks (first trimester); no state interest

  at all; abortions unrestricted and left up to the

  medical judgment of the doctor.

  2. 12 to 24 weeks (second trimester); state interest

  arises and abortions can be regulated only to protect the woman's health.