The Brethren

by Bob Woodward

  The letters continued to pour in. Every time a clergyman mentioned the decision in his sermon, the letters trickled in for a month from members of the congregation. The attack gradually wore Blackmun down. At breakfast with his clerks, when the discussion turned to the decision, Blackmun picked up his water glass reflectively, turning it slightly on edge and staring into it in silence.

  The criticism also drew Blackmun and Brennan closer. Blackmun wrote Brennan a warm thank-you note: "I know it is tough for you, and I thank you for the manner in which you made your suggestions."

  Brennan tried to cheer up Blackmun. Doing the right thing was not often easy, he said. The one thing in the world Brennan did not want known was his role in molding the opinion.*

  Blackmun did not cheer up easily. The hysteria on each side of the issue convinced him that any decision would have been unpopular. However, the deepest cut came when the state of Texas filed a petition for rehearing that compared Blackmun's conclusion which held that a fetus was not a person, to the Court's infamous 1857 decision that said that Dred Scott, a slave, was not a citizen or person under the Constitution. Blackmun thought that comparing his opinion with the Court's darkest day of racism was terribly unfair. And, after all, it had been Stewart who had insisted on that part of the opinion.

  Months later, Blackmun gave a speech at Emory Law School in Atlanta. He was chatting with students and faculty when a petite young woman with black curly hair ran up the steps to the stage. She squeezed through the group, threw her arms around Blackmun and burst into tears. "I'll never be able to thank you for what you have done. I'll say no more. Thank you."

  The woman turned and ran from the room.

  Blackmun was shaken. He suspected that the woman was probably someone who had been able to obtain an abortion after the Court's decision. He did not know that "Mary Doe," the woman who had filed one of the original suits in Texas under a pseudonym, had just embraced him.

  The Chief had begun an ambitious remodeling program during the summer of 1972 to give the Justices bigger offices to accommodate the increasing number of law clerks.

  Douglas thought that giving each Justice an extra office was a waste of the taxpayers' money. He had his office moved to a smaller chamber, wedged between two marble staircases, and decided to cut back from three clerks to

  * When the clerks later put together bound volumes of the opinions Brennan had written that term, they included the abortion opinions, and on page 156 they wrote, "These cases are included with Justice Brennan's opinions for the October term 1972 because the opinions for the Court were substantially revised in response to suggestions made by Justice Brennan."

  two. Even then he figured that two clerks would probably spend half their time talking to each other, so he would get the work of only one.

  His clerk-selection committee had picked two women for the 1972-1973 term: Janet Meik, a pleasant, soft-spoken graduate from University of Southern California Law School, and Carol Bruch, an outspoken honors graduate from the University of California School of Law at Berkeley.

  The previous term's clerks, who had laboriously developed a somewhat successful relationship with Douglas, were worried when Bruch announced that she planned to delay her arrival in Washington by several weeks in order to take the California bar exam. They tried to convince her that she would need the extra time to keep up with the mass of cert petitions and requests from Douglas, who called in frequently from Goose Prairie.

  Bruch was stubborn. She intended to set limits on her work day. She had two children to care for in the evenings. There was only so much Douglas could ask of her. The clerks tried to warn her there was no limit to what Douglas could and would demand.

  Douglas's abuses of his clerks were legend. He "fired" his clerk in the 1968 term one day before the clerk's wedding. The clerk had planned to hold his wedding reception at the Court the next day, and he went ahead, fearing that Douglas would appear and evict everyone from the building. Douglas arrived and, for the first time in an entire term, was gracious. The "firing" was never mentioned again.

  The following term, Douglas told one of his two clerks that he would be fired except for the fact that he was a nice boy and that he was so incompetent that he would not be able to get another job. "I can get better legal advice from drunks in the gutter," Douglas said.

  The two women clerks got quick confirmation of the Douglas legend. In an early phone conversation from Goose Prairie, Douglas said he was sending them something they would need.

  It did not come.

  Bruch finally called Douglas.

  Douglas had no phone at Goose Prairie and was angry at the inconvenience of having to go miles to a neighboring ranch. "If this goes wrong, it's because I have a goddam incompetent law clerk," he shouted.

  "I'm sure it will work out," Bruch said.

  "If you're in over your head, you can leave and I'll get someone else," he said, hanging up in a fury.

  Douglas complained about his new clerks to Chuck Ayres, the head of his clerk-selection committee, the dean of the University of Arizona law school, and a former Douglas clerk himself. Ayres called Bruch and Meik to see what was wrong.

  Both Meik and Bruch were upset. Bruch, determined not to let Douglas intimidate her, decided to drop him a note. "When you are displeased, I would be grateful if in the future you would let me know directly," she wrote.

  Both clerks kept grinding out the cert memos. The night of Wednesday, September 6, with many hours of work left, they took a break at 8 p.m. to watch an hour-long interview Douglas had given to CBS reporter Eric Sevareid. It had been filmed in Goose Prairie.

  When Sevareid asked him about the increased number of law clerks, Douglas replied, "We don't need clerks."

  "Why don't you need clerks?" Sevareid asked.

  "Because these are highly individual decisions. Nobody in my office can tell me or should tell me how I should vote.... We don't need the law clerks."

  "You mean," Sevareid asked, "you'd be prepared to do all the looking up of all the precedents yourself?"

  "Oh sure," Douglas said.

  Meik and Bruch laughed. They went back to their office and stayed until i a.m. getting the next batch of cert memos ready to send to Goose Prairie.

  Blackmun, whose chambers were nearby, dropped by and told the clerks not to worry. Bill Douglas was tough on him, too.

  When Rehnquist heard how Douglas was treating the two women, he told his own clerks that Douglas had been the same when Rehnquist had clerked twenty years before. In those days, Douglas had only one clerk, and Rehnquist remembered that Douglas had once reduced the clerk to tears during a confrontation.

  Douglas arrived back at the Court in mid-September. He seemed friendly enough on first meeting, Bruch and Meik concluded. On one case, however, Bruch was confused by a cryptic note Douglas had scrawled giving his instructions. The note appeared to ask her to apply an area of the law that had nothing to do with that case. She went to other clerks and even to the Clerk of the Court, but no one could figure it out. Finally, she went to Douglas's senior secretary, who suggested that Bruch ask Douglas because he was in a good mood.

  Bruch went into his office. "Excuse me, Mr. Justice," she said. "I've been looking at this note and I'm afraid I don't understand it."

  "I'm not ranning a damn law school," he barked.

  "It seemed to me that this problem can be handled, but I wondered what you mean by this note," she tried again.

  "You can read my opinions on the subject," Douglas said.

  Bruch left and decided to write another note.

  "I'm very sorry I made a mistake on this case. I'm sure there will be other times this year when I will make other mistakes. However, I've found that civility in professional relationships is most conducive to improved relationships. You can afford to be basically polite to me."

  She left the note on Douglas's desk when he was out of the office and warned the secretaries that he would probably blow up.

  Later
in the day, Douglas came steaming out of his office shouting at the two secretaries because they hadn't reached someone he wanted to talk to on the phone. He said nothing to Bruch.

  One morning later that week, Douglas went to the clerks' office. "I gather that you think I'm not civil," he addressed Bruch. "Nothing that I ever say is personal. This is the rough-and-tumble of the law as practiced in courtrooms daily. If my law clerks can't take it, I don't want them."

  Tinning on his heel, he walked out.

  Stunned, Bruch took a second to recover. "I don't need unnecessary sarcasm, Mr. Justice," she blurted after him.

  He did not turn.

  Bruch realized her mistake immediately. Douglas had come as close to an apology as he could.

  Douglas was negative about all of Bruch's work. When there was a petition that both Meik and she wanted Douglas to grant, Meik signed the recommendation alone. They both feared that Bruch's name would doom it.

  Former clerks were called regularly for clues to the meaning of Douglas's notes, requests, and his frequently incomplete references to old cases. The published volume of the Douglas impeachment investigation, which contained a list of all his opinions, was an excellent source. Often Bruch and Meik asked his secretaries to decipher Douglas's statements. His sentences were almost a private code, their meanings evident only to him.

  "I'm going to write," he announced one day, referring to a case by docket number.

  A few days later, Douglas asked Bruch for her research.

  She had done nothing. Evidently, his remark was meant to be interpreted as an order to begin work on the case.

  Bruch was exasperated. She told Douglas that he had not made clear what he wanted them to do.

  "Get out," Douglas yelled.

  "We can't read your mind," she said leaving.

  From then on, Douglas ignored Bruch. He continued to rely on Meik, but telephoned David Ginsburg, his first clerk in 1939, and asked him to find him a third clerk. A male Harvard law school graduate got the job and was able to get along with Douglas. Bruch stayed on but had little contact with Douglas.

  As the term wore on, Janet Meik got to know the Court's night staff of cleaning women, maintenance men and janitors. Where most clerks had treated them as invisible, she took an interest in their problems. The picture was bleak. Employees in the lower-echelon jobs were virtually all staffed with blacks, the upper-echelon jobs were nearly all white.* Laborers and messengers were commonly asked to perform personal work for the Justices, particularly for Douglas, who insisted on using Court personnel to chauffeur him, serve at parties in his home, do grocery shopping, run personal errands, and transport his oriental rugs to storage at the Court each summer—all on their own time. Cleaning women lived in fear of being summarily dismissed for breaking something. They had to pay for all china and crystal broken while cleaning up for private dinners hosted at the Court by the Justices.

  * For a detailed discussion of labor problems at the Court, see Nina Totenberg, "The Supreme Court: The Last Plantation," New Times, July 26, 1974.

  Meik was particularly concerned about work hazards at the Court. Several workers had been seriously injured falling from rickety scaffolding used to clean the marble edifice. Hydrochloric acid, outlawed as a cleansing agent in most places, was still used to clean the massive bronze entrance doors. Discipline was severe and loyalty presumed. Slight deviations were dealt with by transfer or firing. There was no appeal, since the Court was exempt from the civil service laws. As the clerk pressed the laborers' claims, she found no sympathetic ears in the Court staff hierarchy. Nor did any of the Justices seem interested.

  Meik became increasingly friendly with one of the most articulate members of the all-black labor force, John Wright, the son of the Chief Justice's messenger and valet, Alvin Wright. The two began dating and then decided to live together. Wright's superior at the Court warned him that he was not to be seen with Meik at the Court. Co-workers heard supervisors criticize their "interracial" relationship. The laborers were ordered not to speak to clerks. Wright continued both to push militantly for reforms in the work-crew assignments and to date Meik.* Finally he was fired. There was no appeal. No one spoke up for him except Meik.

  Shortly afterward, several black members of the Supreme Court police force began organizing a union. Told by the Court staff that no union would be recognized, the organizer went to talk with Marshall.

  Not my domain, Marshall said.

  When Meik advised the organizers to hire outside counsel and go to court, they explained they were intimidated. The Court was a plantation. They could do nothing.

  Retired Chief Justice Earl Warren joined all the clerks for lunch late in the year. He was asked about segregation in jobs at the Court.

  Warren explained that in his first term on the Court when he was ready to announce the decision in the school desegregation cases, he had looked around the Court and realized there was not one black secretary. Quickly he had ordered several hired.

  Unfortunately, he said, there had not been much progress since then.

  * * *

  * John Wright and Janet Meik were later married.

  Two weeks into the term, the Court heard the first of the obscenity cases. These were three cases that Brennan wanted considered first. They posed the question of whether states could ban consenting adults from walking into a theater or store and buying or seeing what they wanted and expected to see. There was no exposure of books or movies to unwilling viewers or children.

  The first case involved the Paris Adult Theater in Atlanta, whose owner had been convicted of showing the X-rated movies Magic Mirror and It All Comes Out in the End. At oral argument on October 19, the attorney for the theater noted the Chiefs frequent public complaints about the Court's heavy case load. One way to reduce it, he suggested, was to permit the "controlled" sale and showing of sex-oriented films. The courtroom erupted in laughter. The Chief did not smile.

  A second case involved the Peek-A-Boo Bookstore in Los Angeles. Murray Kaplan, the proprietor, had been fined $1,000 for selling a paperback, Suite 69, to an undercover detective seeking "any good sexy books." The third case also presented the adult-bookstore issues.

  At conference, Burger and Brennan continued their maneuvering. They were still struggling for the uncertain votes—White, Powell and Blackmun. Burger indicated he would again try his hand at an opinion encompassing a grand solution to the whole problem and would wait a few weeks until the cases that had been held over from the previous term were reargued. Brennan said that he too would be circulating something.

  The Chief went back to chambers to begin work. He decided to start with the Peek-A-Boo Bookstore case. It looked like the easiest, and he might be willing to pacify the liberal wing by declaring that books consisting entirely of text are protected fully by the First Amendment

  The clerk working on the case offered Burger the book Suite 69. Though it was a repetitive and explicit description of a series of orgies, it seemed to be comparatively well written for its genre—more trivial than obscene, Burger's clerks concluded. The Chief took the book home for the weekend. He returned to the Court on Monday morning appalled and disgusted. "Trash," he declared, tossing the paperback on his clerk's desk.

  Burger's position was hardening. He hated pornography and smut peddlers. Something had to be done to suppress them. Care had to be taken, of course, to preserve legitimate First Amendment rights, but Douglas's concerns were overstated. For Burger, the issue was more than anything else a question of taste. Obscenity was vulgar; citizens had a right to be protected from it. But all this was difficult to express. The Chief needed someone who could translate his gut reaction into a tightly woven argument.

  The clerk working on these cases with the Chief was uniquely compatible with him. He had studied at Oxford for three years after college and had married the former secretary to Burger's friend from England, Lord Chief Justice John Widgery. Only twenty-seven, the clerk looked years older with the balding, s
oftened appearance of a middle-aged attorney. More importantly, this clerk was a talented translator of the Chiefs visceral reactions into reasoned legal positions.

  Starting with the Chief's memo from the previous year, the clerk sifted through the available literature, looking for legally sound and intellectually sophisticated reasoning to support Burger's views on censorship and obscenity. Burger recommended that he read an article that his chief clerk had found the previous year, written by conservative Yale Law professor Alexander Bickel.*