by Bob Woodward
Burger was not accustomed to defiance from Blackmun. But the abortion decision had proved that Blackmun could not be taken for granted. Now Burger waited.
The only way for Blackmun to influence the Chief was to withhold his vote.
Finally, reluctantly, the Chief agreed to permit the change. Blackmun became his fifth vote.
Brennan was more saddened than angered by the loss. He revised his draft as a dissent. He finally was willing to renounce all definitions of obscenity, as Douglas had been beseeching him to do for sixteen years.
There was a right, Brennan said, to receive information regardless of its social worth, regardless of its obscenity.
Douglas shrugged at Brennan's belated conversion. If Brennan had seen this four years earlier, when the liberals still had a clear majority, or even the year before, when there was still a chance, it would have meant something. In the meantime, Burger had cited all Brennan's old opinions to support his position. Now, they would have to wait and see what havoc the Chief had wrought.
Burger's 5-to-4 majority decisions in the obscenity cases were scheduled to come down on June 21. While they waited for the opinions, the Burger clerk who had worked on them sat with another Burger clerk, listing questions that the opinions left unanswered. By the time they were done, they had more than two dozen.
Unanswered questions or not, Burger's clerk was relieved to have completed this task. The case would come down in a few days. At least there would be no more absurd changes by the Chief. There would be no more negotiations, no more apologies to the other clerks and Justices, no more saving Burger from his own rhetoric. The clerk had reached the end of his rope, but he was free.
Then a memo arrived from the Chief. It said to hold the opinion; the Chief had some additional last-minute changes to make.
The clerk wobbled in his office chair. Then he heard the snickers. It was a joke by his fellow clerks. He didn't think it was very funny, tampering with a man's sanity.
The opinions came down on June 21. Burger was very proud of them. He had made another important pronouncement in a troublesome area of the law. For the first time in sixteen years, he noted from the bench, "A majority of this court has agreed on concrete guidelines to isolate 'hard core' pornography from expression protected by the First Amendment."
In Washington, the local prosecutors hailed the new rules. Some adult-bookstore owners quietly removed their more explicit ware from the shelves. A few weeks later, an Albemarle County, Virginia, prosecutor announced that he would prosecute anyone selling Playboy magazine on local newsstands. The magazine violated community standards in Charlottesville, home of the University of Virginia.
When the Chief read a news story on the prosecutor's action, he immediately jotted a memo to the conference. He had never intended to ban Playboy, he insisted. His opinion was clear on that point.
On January 17, the Court heard oral arguments in a sex-discrimination case (Frontiero v. Richardson). Many such cases had been building in the lower courts as women challenged laws that discriminated against them.
In this case, a female Air Force lieutenant, Sharron Frontiero, had asked the Air Force for larger quarters and allowances of several hundred dollars a month because she had married. Under federal law, these increases were automatically granted to married men. But for a woman to qualify, she had to prove that her husband was legally dependent and that he received more than half his support from her.
In previous cases, the Court had declined to treat sex discrimination as it did race discrimination—as virtually unconstitutional in all cases. The term before, the Court had unanimously struck down an Idaho law that gave automatic preference to men over women as administrators of estate (Reed v. Reed). But the decision, written by Burger, had held simply that states could not pass laws treating men and women differently unless some clear reason was given for doing so.
At conference, Burger proposed that they handle the Air Force law exactly the same way. The liberals wanted to go further, but the Chiefs proposal was acceptable. Only Rehnquist wanted to uphold the law.
Burger assigned the case to Brennan. He preferred not to give Brennan civil rights cases, but since they agreed on the reasoning this time, little harm seemed likely to come of it.
But as Brennan went to work on the Air Force case, his misgivings about the rationale grew. Maybe the time had come to treat sex discrimination cases the same way as race cases. The kind of discrimination that was practiced against women had many of the same characteristics of past treatment of blacks—denials of the right to vote, to hold office, to serve on juries.
Brennan became convinced that a clear statement was needed. Yet, he did not want to offend the conference. His mandate had been to write an opinion striking down a single law, not to make a broad constitutional rule.
Brennan circulated a draft opinion on the limited grounds, and then he sent around an alternative section that proposed a broad constitutional ban, declaring classification by sex virtually impermissible. He knew that his alternative would have the effect of enacting the Equal Rights Amendment, which had already passed Congress and was pending before the state legislatures. But Brennan was accustomed to having the Court out in front, leading any civil rights movement. There was no reason to wait several years for the states to ratify the amendment. This could be a landmark case if he could get four more votes. Douglas, Marshall and White rapidly joined his alternative. Now, he needed only one more vote.
Powell realized Brennan saw him as the possible fifth vote. But he didn't like Brennan's draft, which read at times like a Women's Liberation tract, calling sex discrimination in statutes "romantic paternalism" that put "women not on a pedestal but in a cage." More importantly, Powell was sensitive to the Equal Rights Amendment debate. With a proposed amendment before the state legislatures, the issue was clearly in the political arena. That was where it belonged. There was no need for a summary, unrestrained exercise of judicial power.
Powell circulated a short dissent to Brennan's sweeping version, trying to gather votes for the other side. Burger, Blackmun and Rehnquist joined him. That made it 4 to 4. Stewart would be the deciding vote.
Stewart felt caught between his two best friends on the Court, Powell and Brennan. Generally he didn't like equal protection decisions. They were often a kind of judicial legislation. While he disagreed with Powell's suggestion that the pending amendment precluded Court action, he did see it as a problem. This was not a matter that needed to be settled immediately. The Court should move slowly.
Stewart indicated that he favored striking individual laws as they came up and, perhaps after a number of years, doing what Brennan proposed. It would be better for the dynamics of the law—a slow evolution and then a clearly logical ultimate step. Besides, Stewart was certain the Equal Rights Amendment would be ratified. That would relieve the Court of the burden. The responsibility really should be assumed by legislatures.
With Brennan continuing to press him for his vote, Stewart proposed a compromise. If Brennan would go back to his first draft opinion and simply strike the one law, Stewart would probably go along with his broad constitutional rule on the next sex discrimination case. But it was important that Brennan not publish the alternative draft without his vote. If that happened, Stewart would be on record against him and it would be more difficult for Stewart to join a similar opinion in a year or two. He would look inconsistent. Outsiders might question his sudden conversion.
Brennan perceived Stewart's offer as a "deal." He rejected it and decided to publish the alternative draft, even though he had a plurality of only four. Stewart concurred simply in the part striking the one law.
Brennan felt certain that he had come within an inch of authoring a landmark ruling that would have made the Equal Rights Amendment unnecessary. If either Earl Warren or Abe Fortas had still been on the Court, he lamented to his clerks, he would have won.
When Powell first arrived on the Court the previous year and voted with Burger
in a particular case, Stewart asked why. "I thought I would follow the leadership of the Court," Powell had replied.
Stewart was dumbfounded. He decided he had better explain to his new colleague something about the realities of life at the Court. The leadership was not Burger. He was Chief Justice in name only. The leadership belonged to the Justices in the center, the swing votes, those who were neither doctrinaire liberals nor conservatives. It belonged to Stewart and White and Lewis Powell if he chose.
By his second term, Powell understood. The Chief provided no intellectual leadership. In fact, when it came to legal analysis, he was grossly inadequate.
Powell was writing a majority decision (In re Griffiths) in which the question arose as to whether states could prohibit resident aliens from becoming members of the bar. A Dutch citizen, living in Connecticut, had challenged that state's citizenship requirement as a denial of equal protection under the Fourteenth Amendment. Powell thought it was a simple question of fundamental fairness. Resident aliens paid taxes, served in the armed forces and contributed to the country in various other ways. The Supreme Court permitted resident aliens to argue cases. Powell could see no basis for Connecticut's rule barring a whole class of people from practicing law.
As work on the opinion progressed, Burger came by for one of his frequent, unscheduled visits. He plopped down in a chair in Powell's office. Powell was annoyed at the interruption. Now he was at the Chiefs mercy. There was no telling what he would want to discuss, or how long he would stay. Often the visits took two hours out of Powell's afternoon. Powell joked that the Chief was giving open-ended discussion a bad name. He had tried to stop these visits. He had told his secretary that if the Chief called to say he was corning, she was to say that Justice Powell requested that he be allowed to come see the Chief instead, since protocol demanded that a junior Justice visit the senior. That way Powell could visit Burger and leave after a few minutes, pleading an appointment or pressing work. It had seemed a good idea. But the Chief had simply stopped calling ahead.
On this visit, Burger said he had been thinking about the Connecticut lawyer's case. Maybe they should change their votes. The Fourteenth Amendment was being overworked. Wasn't this a state question, something states were empowered to regulate? Lawyers were officers of the courts. Perhaps the Court had an obligation to protect the profession.
Powell was a bit confused. Exactly how, he asked the Chief, would keeping aliens out of the bar association protect the profession? Lawyers were already subject to sanctions or disbarment or even prosecution if they did something wrong.
Well, lawyers were not held in the esteem they merited, the Chief complained. Recent disclosures in the growing Watergate scandals regularly exposed unethical and illegal behavior by lawyers. The most newsworthy lawyer of the day was White House counsel John Dean, accused of covering up the Watergate break-in.
Powell politely asked what that had to do with an alien who wanted to practice law.
Burger seemed to think that aliens might somehow contaminate the legal profession. The Chief kept referring to the image of lawyers and how this would harm that image.
Powell recoiled from Burger's conclusion. Here was the head of the American judiciary lobbying a fellow Justice, a former head of the American Bar Association, to prevent aliens from practicing law.
Powell was determined to stick to his opinion. He was ultimately joined by everyone but the Chief and Rehnquist.
It was not just the Chiefs intellectual inadequacies or his inability to write coherent opinions that bothered PowelL
There was something overbearing and offensive about the Chief's style. Once, after apparently spending a long time reviewing the voluminous record in one case, Burger brought the record to conference. When Powell expressed his opinion, the Chief rebuked him. "Lewis," Burger said, "you can't possibly say that. If you'd read the record, as I have, you would know that is simply not the case." He then reached back for the record. "Here, Lewis, take the record and read it," he said, handing Powell the huge file.
Powell returned to his chambers sheepishly, blaming himself and his clerk for not having been more thorough. Guiltily he read the record only to find that the Chief had either misunderstood or misrepresented it. He ultimately concluded that the Chief's heavy-handedness could not be viewed as merely a superficial trait. At the first conference in June, the Justices met to review the status of all outstanding majority opinions in order to make sure all were in circulation. Traditionally, all majority drafts were to be sent out by June i, so there would be at least some chance that the Court could adjourn by the middle of the month.
Each Justice except Blackmun said that his majorities were in circulation or at the printer. Blackmun said that there was one case that he just couldn't get out. He had been working on it day and night, but he had been unable to complete it.
Burger showed no sympathy. As the others sat in silence, Burger chastised Blackmun.
"I really caught it at conference," Blackmun told his clerks after he returned to his chambers. He resolved to work even harder.
Powell's clerks, however, discovered that Burger also had a majority opinion outstanding. Once again, they raged to Powell about Burger's hypocrisy. For the first time, Powell did not defend the Chief.
The Chief's stunts on delaying his votes and on the assignments also irritated Powell. He had been too tolerant his first year. Now he was less indulgent about Burger's manipulations. Whatever the Chief's motives, the result was inexcusably sloppy.
Powell had also been initially skeptical about stories of Marshall's laziness and inattention. His disbelief had deepened a few days after he had circulated a thirty-two-page majority draft opinion ruling out a challenge to the use of property taxes for financing public education (San Antonio v. Rodriguez).
It was a monumental case, billed as promising massive educational upgrading for poor children everywhere. Marshall, White, Brennan and Douglas felt that the property taxes had to be reallocated, to even out the expenditures in different areas. Otherwise, there would never be a way to ensure equal educational opportunities, a right they felt was guaranteed by the Constitution.
The other side argued that the Constitution did not require any such reallocation.
Powell's thin five-man majority depended on Stewart's crucial fifth vote. Stewart was unwilling to get the Court embroiled in another issue of such magnitude. If the Court were to get involved, it would precipitate hundreds of cases in the federal courts as their decisions had done in desegregating schools and requiring reapportionment to meet the "one man, one vote" standard.
Moreover, Stewart felt it struck at one of the foundations of a capitalist state. People accumulated wealth in order to spend it where they chose—on their children, in their own communities.
Marshall was unhappy with Stewart's position. He assigned one of his law clerks, among the best at the Court, to prepare a devastating legal analysis of the majority opinion. For months the clerk did nothing else. Marshall circulated the forty-page dissent, responding to each of Powell's arguments and to some not even offered. It was well-reasoned, even brilliant.
How, Powell asked his clerks, did Marshall turn out such a masterpiece so quickly?
The clerks were frank. Marshall's clerk was first rate, and Marshall had given him several months to write the opinion. Depending on whom you believed, Marshall himself had spent maybe fifteen minutes to an hour going over the draft.
Powell couldn't quite believe it. "Who is the Justice down there?" he asked rhetorically.
He finally decided to see for himself. Congratulating Marshall on his fine dissent, Powell asked him a question regarding one of the major issues. "Did I say that?" Marshall cracked, brushing the question aside. Powell was not sure Marshall even understood the question.
Powell also found White an enigma. Not a particularly likable man, not genial like Brennan, White was fiercely combative. He was especially intimidating when he was struggling to hold a majority. Powell
couldn't quite figure out what made White tick. His opinions, like his personality, were a constant puzzle.
Powell had a difficult time making up his mind on a Fourth Amendment search case that White was writing (Almeida-Sanchez v. U.S.). Powell had been counted as the tentative fifth vote in the conference majority of White, Burger, Blackmun and Rehnquist to uphold the search. Stewart, to whom Powell found himself growing closer, both personally and professionally, was dissenting with the liberals.
Federal immigration agents, acting as a roving border patrol, had stopped a car about twenty-five miles from the Mexican border in California to search for illegal aliens. The roving patrol was authorized by federal law to stop and search cars within 100 miles of the border. The agents searched the car and found no illegal aliens. But they did find 161 pounds of marijuana.
The driver of the car, convicted of illegally transporting drugs, appealed on the basis that his Fourth Amendment rights had been violated. The occupants of the car had given no consent for the search; the federal agents had no search warrant; and the agents acknowledged there was no probable cause to suspect that the particular car was carrying illegal aliens. The car, in fact, had been stopped on an east-west highway, not a north-south road that connected directly with the border.
White's draft argued that the case involved a border search: government agents were allowed to search people at the border without warrant, consent, or any probable cause. The roving patrol was an extension of the border search.