by Bob Woodward
Burger felt that the judge had vastly exceeded his power in creating a new school district that cut across political boundaries. In the Charlotte case the order encompassed both city and suburbs, but at least that had been one school system.
The Chief figured that he had a much better chance of winning the Richmond case than the Denver case. Blackmun was willing to join Rehnquist and him on this one. Stewart might have problems with the judge's sweeping order. That would be four votes. But Powell, who had served nineteen years on the Richmond and Virginia state school boards, would likely disqualify himself. Burger saw at least a 4-to-4 deadlock upholding the Fourth Circuit Court of Appeals which had reversed the district judge. The problem was that a 4-to-4 deadlock would leave the lower courts with no law on the subject. They would have nothing to apply to city-suburb busing plans that had been ordered or were being considered in Detroit, Boston, Dayton, Hartford and elsewhere.
Both Denver and Richmond cases posed questions about the power of federal judges to order sweeping remedies in school desegregation cases. But from the Chief's point of view, the Detroit case, which was working its way up to the Court, was preferable to both the Denver and Richmond cases. It was the best example of a judge exceeding his power.
Burger calculated that he had a much better chance of pulling in Stewart and Blackmun's votes in Detroit. And unlike the Richmond case, Powell would be able to vote in the Detroit case. Burger drafted a memo to the conference suggesting that the Denver and Richmond cases be put over until the next term, when they could be considered with the upcoming Detroit case.
"That son of a bitch," Brennan said. The Chief’s memo was a blatant, last-ditch effort to stop the Denver decision, and it was a poorly disguised attempt to sabotage desegregation nationally, Brennan believed.
Blackmun was also cynical about Burger's suggestion. The Richmond and Denver cases were difficult enough, taken separately. Suggesting that the Court consider it all as one package was clearly inappropriate. Burger was trying to stall the Denver case. Blackmun circulated a memo opposing Burger's proposal, and then he sent a second memo saying that he was inclined to join the latest Brennan Denver opinion. He approved the idea of sending the case back for more fact finding, and giving the school authorities another chance.
Brennan was overjoyed. Burger had overplayed his hand.
That left the Richmond case. Powell, as expected, disqualified himself. Douglas, Brennan, Marshall and White were willing to uphold the city-suburb busing order, but on this case, Blackmun would not go along. He agreed with the Chief and Rehnquist. To extend desegregation within a city or a school district was one thing. Redesigning school districts and redrawing political boundaries was unacceptable.
It was up to Stewart. Stewart felt that no city-suburb busing could be ordered unless a violation were shown in both city and suburban school districts. Although it was a close call, he did not believe the violation in the suburban district had been proven. Stewart was also deeply affected by non-judicial considerations. Public opinion was at stake. Just as the Warren Court decisions outlawing prayer in the public schools had eroded confidence in the Court, the busing issue was costing the Court dearly. People chose to live in certain neighborhoods because of the schools. Forced city-suburb desegregation was an attack on that freedom of choice.
The mainstream of society opposed forced integration of the schools when it meant busing. Stewart wanted the Court to keep that mainstream in mind wherever possible. To back limited city-suburban busing in Richmond could mean massive new long-distance busing in every major city in America. Stewart told his clerks that he had ridden the bus on the Charlotte and Denver decisions, but that Richmond was different. "It is where I get off," he said.
The Richmond plan looked dead unless Blackmun changed his mind.
In May, the liberal half of the Richmond decision— Douglas, Brennan, White and Marshall—tried to break the 4-to-4 deadlock. White drafted a long memorandum for Blackmun's benefit, documenting the reasonableness of the city-suburban desegregation. The judge's order in Richmond was a logical extension of the Charlotte decision, he argued.
Blackmun would not budge.
Finally, conceding the deadlock, the Court allowed the case to be announced. The equally divided Court struck down the city-suburban busing in Richmond. But the decision would not be a precedent for other cases.
"Look at this, guys," Brennan called to his clerks when Blackmun finally sent around his formal join in the Denver case. It guaranteed him five votes. With Powell's technical concurrence in the remand, he had six votes.
Rehnquist was not taken in by any of Brennan's changes to get Blackmun's vote. In his dissent, Rehnquist accused the majority of taking "a long leap in this area of constitutional law." Under Brennan's opinion a single school board action in one part of town, Rehnquist said, could be the basis for a federal judge to order system-wide desegregation. In reality, he said, the Court was putting the school district in "federal receivership," to be run by a district judge.
That left the Chief.
Brennan expected him to write his own dissent or join Rehnquist's.
In early June, a short memo from Burger arrived in Brennan's chambers.
The Chief said he was going to concur in the result.
Brennan laughed. Frequently a refusal to join an opinion was an insult. But for such a vocal dissenter at conference to suddenly join the majority in any form could only be considered humorous. "Can you believe this?" Brennan asked his clerks, slapping the memo down on a desk.
They tried to figure out whether the Chief was engaged in some subtle ploy, but they couldn't find one. Burger provided the seventh vote.
The decision was announced formally on June 21. The newspapers reported it as a 7-to-1 majority for strong desegregation and busing orders in the Northern cities. The opinion was a primer for judges outside the South. It gave them the tools to order sweeping remedies. Substantial pockets of intentional segregation in any city made it a candidate for Southern-style desegregation orders and extensive busing.
Brennan found it hard to believe that he had actually won.
Rehnquist usually voted with Burger; they agreed on many things. But Rehnquist didn't share Burger's concern with appearances and formality. He was very casual. During the nice weather, he and his clerks sometimes ate lunch in one of the two enclosed courtyards. They brought their food in paper bags and simply enjoyed the sun and the outdoors. As they were picnicking in shirtsleeves one day, Burger's messenger, Alvin Wright, set up a small table with silver service and a white linen tablecloth. Moments later, Burger came out with his clerks. Burger, his jacket on, poured the wine.
Rehnquist and his clerks chuckled a bit. But as they gazed on the solemnity at the Burger table, Rehnquist's laughter grew almost uncontrollable. He and his clerks had to dash inside.
During his first term, Rehnquist worried some about what influence his clerks might have on his opinions. He had clerked at the Court after law school and had written a magazine article in 1957 alleging that most law clerks were generally "to the 'left' of either the nation or the Court." He described the bias as "extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any government regulation of business."
He mentioned the possibility of "unconscious slanting of material by clerks" when reviewing cert petitions. And though he had written that he didn't think clerks exercised too much influence in the actual drafting of opinions, he was careful when he got to the Court to write all the first drafts himself. Midway through his first full term, he realized that he had been wrong. The legal and moral interchanges that liberal clerks thrived on were good for the Justices and for the Court. Rehnquist grew to trust his clerks; they would not be so foolish as to try putting something over on him. And there was the question of efficiency. The clerks were helpful with first drafts. It saved him time, and helped focus his own thinking.
>
Rehnquist was known around the Court for his friendliness toward clerks. He learned their names, and found some of them as interesting as the Justices. He suggested letting the clerks into the Justices' dining room or setting up a lounge for both clerks and Justices. Those ideas got nowhere, but he did get a Ping-Pong table for the Court.
Rehnquist's clerks occasionally took a moment out to play basketball on the court in the upstairs gym, and since there was very little time, they often overlooked the rule against playing in street shoes. One day, at oral argument, Rehnquist's clerks noticed their boss whispering with some of the other Justices. He scribbled a note and summoned a messenger who carried it to where the clerks were sitting in the audience. They felt very important.
"We have just talked it over and from now on the rule against street shoes will be strictly enforced," the note read.
As the junior Justice, Rehnquist was in charge of the annual Christmas Party. It was a noisy party, and Rehnquist found it hard to get all personnel together for the carolling. Finally, he stood on a piano bench. "Achtung!" he shouted.
One clerk thought it was too good to be true. Rehnquist, the fascist. But most thought that it showed that Rehnquist had a sense of humor.
Stewart wasn't working too hard. The joke around the Court was that he and Marshall passed each other in the corridor most days just before noon—Stewart on his way to work, Marshall on his way home. But Stewart paid close attention to what was going on, and his clerks knew that if they could engage his interest, he would swing into action.
One of Stewart's clerks took up the cause of a federal prisoner serving twenty years for bank robbery (Fontaine v. U.S.). The man alleged that his guilty pleas had been coerced through physical abuse while he was in the hospital suffering from a gunshot wound, heroin addiction and mental illness. The record gave some support to his claim that these factors had caused him to waive his rights for a lawyer and plead guilty. The Court was going to deny cert, until Stewart circulated a long dissent from denial of cert that his clerk had prepared. The conference later voted 8 to 1 to direct the district judge to grant the man a hearing, shaming some of the clerks in the other chambers for their failure to discover the possibility that the allegation of coercion might be valid.
But certain issues drew only scorn and indifference from Stewart. In one case, Ohio and Kentucky, divided by the Ohio River, could not agree on their common boundary. An 1820 Supreme Court case put the river in Kentucky and therefore was precedent. But Stewart, who came from Ohio, told his clerks that he had another reason for voting against his home state. "My father always told me at the breakfast table that the Ohio River was in Kentucky."
Another time, Stewart was assigned to write a Fourth Amendment car search case (Schneckloth v. Bustamonte). He was happy with the assignment and wanted to write it in a way that would avoid raising potentially troublesome questions. He assigned one of his clerks to draft the Schneckloth opinion, and a long draft was duly returned to him. Weeks passed and there was no comment from Stewart, no instructions for rewriting, no word of approval or disapproval. It had not been sent to the printer. Where was Schneckloth?
Stewart's other clerks began to make jokes about the missing opinion. "Have you seen Schneckloth?" became a familiar remark around his chambers and then the Court. The clerk who had drafted it, a meticulous and devoted lawyer, was plagued by the missing Schneckloth.
He finally decided to ask Stewart. He went into his office. "Have you seen Schneckloth?"
"Yes," Stewart said, pulling open his top drawer. "I can see it any time I want."
The clerk was not sure he understood, but he concluded that Stewart was holding the case so he could circulate it late in the term. Caught in the spring crush, there would be little time for it to trigger yet another grueling debate over the Fourth Amendment.
Schneckloth, one of the first cases argued, was among the last to come down.
In spite of his victory in the Denver school case, Brennan was unhappy about his first full term with the four Nixon appointees. His clerks had the feeling that a sense of despair had overtaken him. Brennan had dissented forty-seven times during the term, more than he ever had dissented before.
It was not only that Brennan had values different from those of the Nixon justices, but now he was often not even a part of the real debate. Stewart and White had taken over the direction of the Court along with the Nixon appointees, Brennan concluded. They were the mainstream. Brennan was the outsider, and he was pained at the direction the Court was taking.
Brennan felt that his greatest achievements on the Court were the legislative reapportionment cases of the 1960s— the "one-man, one-vote" cases. Those decisions required that state legislative and United States congressional districts be drawn and redrawn to include the same number of voters, so that each person's vote would count equally. Even 3 percent deviations were not permitted. Under a 1969 decision, the states were required to make a "good faith effort to achieve precise mathematical equality." Half the states had achieved variations of less than 5 percent.
Earl Warren had often called those cases the most significant decisions of the Court during his tenure, despite the fact that Brennan had written many of the key opinions. Brennan was the father of reapportionment.
But this past term, in a case involving the state of Virginia (Mahan v. Howell), a new majority of Burger, Rehnquist, Blackmun, Stewart and White had allowed a reapportionment scheme that included a 16.4 percent variation in the size of the districts. After conference on the case, Brennan returned to his chambers near tears. "I'll talk to you boys later," he told his clerks, leaving at once for home.
Most irritating to Brennan was that the Court was adopting a secret internal rule of thumb to use as a guide for future cases, rules that they would not publish. The new apportionment rules for state legislatures would permit variations of less than 10 percent. Variations between 10 and 20 percent would be accepted if the lines were drawn with good reason, for example to conform with city or county boundaries. Only variations over 20 percent would not be permitted. Brennan was distressed that the Court was so willing to shed its idealism. He knew local politicians. They would do anything to redraw district boundaries to ensure their re-election.
Brennan's clerks thought he might be ready to resign. He had taken to calling Burger a "usurper," and he became wistful even at the mention of Earl Warren. When he talked about Burger, he would often say, "The Chief—and I want to draw the distinction with the Super Chief." At his regular 9 a.m. coffee session with his clerks and secretary, Brennan began to dwell increasingly on the past.
The Chief was intensifying his efforts to cut back on the Court's work load, Brennan complained. Under Warren, the Court had done more for social justice than the Congress. Burger cared more about efficiency. Almost from his first day, he had been complaining about the Court's case load. He had appointed a committee of professors and well-known lawyers to study the problem, and his committee had proposed a new "National Court of Appeals" to weed out nearly 90 percent of the petitions to the Supreme Court.
While the proposal was being debated in legal circles, Burger decided to attack the problem from within. Burger thought his clerks had to spend too much time reviewing the cert petitions and preparing summations for him. Since each chamber had to review roughly 4,500 petitions each year, Burger proposed that they pool their efforts. The cert petitions would be divided equally among the clerks of all chambers, and summary memos and recommendations would be circulated to each of the Justices. Each chamber would have only one ninth of the work.
Powell liked the idea. His law firm had been vastly better organized than the Court. A cert pool would improve efficiency. Rehnquist, Blackmun and White also agreed to join. With fewer certs to prepare, the clerks would do a better job on those they were assigned. Stewart decided to leave it up to his clerks. They were the supposed beneficiaries of the new pool. His clerks said no. They didn't want other clerks making recommendations to
their Justice.
Brennan was vehemently opposed. The Chief's proposal, he told his clerks, was "outright manipulation." Burger was trying to expand his empire. With control of the paper flow, he would gain control of the Court's work. And neither the Chief's clerks nor Rehnquist's could be trusted to make a neutral presentation of the facts or issues in a petition.
Brennan's appraisal was that the case load problem was a myth anyway. It had a lot to do with the Chiefs intellectual insecurity. Piles of cert petitions, even with summary memos from his clerks, intimidated him. Brennan rarely used his clerks on the petitions. He did them himself. It was like separating the weeds from the flowers in the garden.
Brennan was so irritated that he made one of his few public speeches since Fortas resigned. He described some cert petitions from the term. They posed questions such as:
"Are Negroes in fact Indians and therefore entitled to Indians' exemptions from federal income taxes?"
"Are the federal income tax laws unconstitutional insofar as they do not provide a deduction for depletion of the human body?"
"Does a ban on drivers' turning right on a red light constitute an unreasonable burden on interstate commerce?"