The Brethren

by Bob Woodward

  Oblivious to the startled glances of his clerks, the Chief turned to the subject of women. Women should not be allowed to serve as judges in rape trials, he said. They are too emotional, and incapable of fair judgment. Women judges greatly increased an accused rapist's chances of conviction.

  Burger's draft in the Detroit case was finally completed in April, and circulated to the Court. Powell read it carefully. As much as Powell wanted to limit future busing, Burger had gone too far. The Chief's draft had totally foreclosed the possibility of any city-suburban school busing.

  Powell was distressed also at the inadequate research and drafting. "If an associate in my law firm had done this," Powell told a clerk, "I'd fire him."

  Stewart, too, was upset with the draft. He still wanted to stick to his basic opposition to city-suburban busing, but he found it difficult to desert the black parents who had struggled so long for equal educational opportunity for their children. Nor did he want to rule out totally any future possibility of city-suburb desegregation.

  Blackmun and Rehnquist were also unhappy with the Chief's draft; all four members of Burger's majority showed no inclination to join.

  Word of the universal unhappiness with the Chief's draft heartened Marshall. He had been sick about the conference vote. The decision would be the first major cutback in desegregation remedies by the Court since he had argued the Brown case nearly twenty years before. But Burger's draft was appalling. It was incredible, the lengths to which the Chief went to distort the facts of the case. Burger's draft claimed that the lower court had tried to use strict racial balancing of schools. In fact, the district court had done nothing more or less than Judge McMillan had done in the Charlotte case.

  The majority opinion implied that local school board action had not segregated the schools. Marshall knew that to be untrue. The majority indicated also that a city-suburb plan would result in massive busing. Marshall knew that that too was a misinterpretation. He saw little hope, however, that the liberals could pull this one out. So he decided it was time to let loose. He authorized his clerk to prepare a sharp dissent. The majority was no longer concerned about the education of black children in a segregated urban school system. Its concern now was the convenience of white suburban children.

  Stewart and Powell got together to discuss their problems with the Chief's draft. The problem, once again, would be to get the Chief to bow to the weight of the Court's center.

  Powell suggested drafting a "ghost" opinion that they would gradually try to force on the Chief, piece by piece. Stewart agreed. Burger was disturbed at the obvious attempt to manipulate him, but he finally capitulated on the main issue. His opinion would not foreclose the possibility of city-suburban school busing in future cases, if a direct constitutional violation could be proven in both the city and suburbs.

  Stewart then agreed to join. But he also prepared a concurring opinion, going further than the Chief. If state officials were involved in a discriminatory act, such as housing or zoning laws which had led to segregated school systems, he would support city-suburb busing.

  Stewart's obvious attempt—as the fifth and crucial vote —to set the limits of the opinion irritated Burger even more.

  Marshall continued to hold out. His dissents were not the kind to win votes, but they had their emotional impact

  Stewart had never publicly voted against school desegregation in a major case. Marshall hoped against hope that he could reach Stewart. Time and the Chief were his only allies. As Stewart struggled with the Chief throughout the term, Marshall looked for any sign that Stewart's frustration might make him reconsider his Detroit vote. If only he would agree at least to send the case back for further fact finding. Then, if the parents could show illegal acts on both sides of the city line, the revised Burger draft would permit city-suburban busing there. But Stewart would not budge. And Marshall would not pull a Hugo Black and keep the opinion from coming down altogether, no matter how strongly he felt. But he waited until the end of the year before letting it be announced.

  Near the end of the previous term, on Saturday, May 12, 1973, less than two weeks after Nixon's top aides, H. R. Haldeman and John Ehrlichman, resigned because of the Watergate scandal, the Chief went to his annual reunion with his former law clerks. More than forty of them were expected at the black-tie, stag dinner in the ornate East and West Conference rooms. The Chief was edgy and tired as usual at the end of a Court term. But he loved these gatherings and he loosened up with a glass of sherry followed by a glass of white wine. Each of the clerks had paid about forty dollars for the dinner and a gift for the Chief. Essentially it was an event to remind themselves and their friends and colleagues that they had been part of the secret workings of the Court, that they had served the Chief Justice of the United States.

  Some of the Chief's old Court of Appeals clerks knew him well and truly liked him. The recent clerks, who had seen Burger only in the somber and pressured atmosphere of the Supreme Court, were inclined to be less charitable toward him. Several took a few stiff drinks to get them through the evening. As the Chief circulated before dinner, he often forgot their names, much to everybody's embarrassment.

  The former clerks had banded together in a group calling itself the "WEB Fete Society" and had planned an elaborate menu.* Six different wines, one for each course, had been carefully chosen, all in consultation with the Chief, a lifelong member of an international wine tasting society. Shortly after 7 p.m. the group—all white, all male, well-scrubbed and ill at ease in dinner jackets—ambled into the West Conference Room for dinner. There was no head table. An empty seat was left at each table so the Chief could move from table to table with each course, talking about whatever popped into his head—the wine, the building, the case load, travel.

  After nearly three hours, the waiters cleared the tables and closed the doors behind them. A toast was proposed to the Chief Justice of the United States. As the highlight of the evening, the Chief had agreed to take questions and give his "family" his candid views.

  Burger didn't have to remind them that he was speaking off the record. They all knew he considered every word he uttered confidential. They also were aware they would get nowhere with hard questions. The city was ablaze with Watergate, but the clerks, rising from their seats to ask their questions, avoided the subject.

  The Chief sat as each question was asked. Then, standing, he wandered about each topic for as much as ten minutes in a blizzard of free association.

  At last someone asked a direct Watergate question: Would the upcoming Senate hearings and publicity prejudice a fair trial later?

  The Chief bristled and started to skirt the issue, but suddenly he changed his tone. It all had to be put in historical perspective, he said. Nixon had been elected to change some things. That was his mandate. Watergate was

  * The menu listed the following

  wines and brandy:

  Zeltinger Riesling 1970

  Sherry Dry Sack

  Muscadet 1970 Sevre et Maine Beau Soleil

  Chateauneuf-du-Pape1971

  B&G Margaux 1966

  B&G Courvoisier V.S.O.P.

  The food included:

  Hors d'Oeuvres

  Double Consomme au Sherry

  Striped Bass

  Champagne Sauce

  Parsleyed Potatoes

  Entrements

  Loin of Beef Sauce Bearnaise

  Asparagus au Beurre

  Assorted Cheese

  lle de France Bread

  Demitasse

  a political battle, a way for certain political elements to do what they had failed to accomplish in the 1972 election. The President was doing what he was elected to do. Now, the news media were on a witch-hunt trying to tie the actions of his aides to the President himself. The newspapers had become character assassins, the Chief declared. All the innuendo, distortion, hearsay and sensational headlines were vindictive.

  Burger's defense of Nixon, after so much evidence and so many resignation
s, startled some of the clerks. The Chief seemed to view Watergate in personal terms, as if the legitimacy of his own appointment, his own mandate, hinged on keeping Nixon free from the taint. "Apart from the morality," the Chief concluded, "I don't see what they did wrong."

  The damaging news from the Senate Watergate hearings blared forth day after day from a portable black-and-white television set perched on a table in Stewart's outer office. Clerks, messengers and secretaries clustered around the set. Occasionally, another Justice would stop by to savor or deplore the latest revelation. Marshall, a frequent visitor, became the informal master of ceremonies and provided a running commentary. When White House counsel John Dean charged that Nixon himself was involved, Marshall shouted gleefully, "Right on, brother Dean." Falling into his stylized Amos-and-Andy routine, Marshall made it clear that he felt "Brother Dean" was telling the truth. "Dat de way it wuz, sho' wuz," Marshall declared. Nixon's defenders, on the other hand, were greeted with calls of "You lie, you lie."

  Most of the Justices followed the news with fascination, concern and some detachment. They might well get a Watergate-related case; they might be required to rule on some legal question such as pre-trial publicity, or attorney-client privilege. But for now Watergate was a problem for politicians, not for Justices.

  The television in Stewart's outer office was on as usual on Monday, July 16, when the Senate committee announced a surprise witness. The clerks bunched around the set had never heard of Alexander Butterfield. His testimony was shocking. Nixon had secretly taped his White House meetings and telephone conversations.

  Archibald Cox, the special prosecutor whom Nixon had been forced to appoint to investigate Watergate, immediately subpoenaed the tape recordings of nine Nixon-Dean meetings. The White House asked U.S. District Court Judge John J. Sirica to quash the subpoena on the grounds of executive privilege. Though it was often claimed by Presidents, the Court had never defined the scope of such privilege or even stated explicitly that it existed.

  Sirica refused to quash the subpoena, and Nixon appealed the ruling. Anticipating that the case would soon be in the Supreme Court, White House spokesman Ron Ziegler said only that the President would obey a "definitive" decision by the Court

  At a pre-term briefing and cocktail party for new clerks in September, the Watergate tapes case was the principal topic of conversation: what did Nixon mean by "definitive"?

  The Chief began with a routine welcoming speech, but quickly moved to Watergate. He said it was likely that the Court would get the tapes case. That would pose extraordinary problems, and the foremost among them would be security. Historically, outsiders had treated the Court's deliberations as sacrosanct. This time, however, reporters would be desperate for stories; they would use every trick. Burn bags, clean desks, and locked files would be necessary. The Chief then introduced Justice Stewart, to describe the perils of dealing with reporters. Stiff and awkward, Stewart gave a mercifully short talk. The clerks should not talk to reporters, he said, and they should be careful in dealing with them at all.

  Marshall missed the session, but later got a full report from his clerks. The Chief had made an ass of himself again, Marshall concluded. The clerks told him that the Chief had put an absolute gag on all conversation with anyone. "But if I don't tell Cissy what's going on in this one, she'll kill me," Marshall said. He told his clerks it was up to each to decide whether to discuss the case with his wife.

  On October 12, just into the second week of the Supreme Court term, the Court of Appeals upheld Judge Sirica 5 to 2. Midnight,

  Friday, October 19, was the deadline for the President to file an appeal to the Supreme Court. Reporters and TV camera crews were massed outside the Court anticipating the arrival of the President's lawyers. A lawyer getting out of his car was engulfed by reporters who thought, incorrectly, that he was there on behalf of the President.

  Shortly before midnight, the White House issued a statement declaring that the President was not going to appeal to the Supreme Court. Instead, Nixon proposed a compromise that would give the Special Prosecutor summaries verified by Senator John Stennis of Mississippi, an aging, nearly deaf Nixon supporter. The President also issued a direct order to Special Prosecutor Cox, "as an employee of the executive branch," not to seek any more tapes through the judicial process.

  The next night, Saturday, October 20, Marshall had his clerks over for dinner at his suburban Falls Church, Virginia, home. As usual, television sets were on upstairs and downstairs while Marshall shot pool with the clerks. Shortly before 8:30, the regular programs were interrupted. Special Prosecutor Archibald Cox had been fired. Attorney General Elliot Richardson and his deputy had resigned rather than fire the Special Prosecutor. Solicitor General Robert Bork, the next in line, was Acting Attorney General. He had agreed to comply with the President's order to fire Cox. Soon all the networks were running special broadcasts. F.B.I, agents were shown sealing off and guarding the Special Prosecutor's office to prevent removal of files.

  Marshall watched in disbelief. As a civil rights lawyer, he had often seen such raw displays of police power in the South, but never before in Washington. President Nixon had ordered the prosecutor to stay out of court, fired him, and was now probably seizing his evidence. Where would the man stop? Adding to the drama for Marshall was the fact that all the President's actions seemed designed to keep the tapes case out of the Supreme Court.

  Within the week, Nixon, reeling from the hostile public reaction to what had become known as the Saturday Night Massacre, capitulated and turned over the tapes to Sirica. The case was closed.

  Brennan wondered what the Court would have done. The most prolific source and consumer of grapevine information, Brennan sifted through the intelligence his clerks brought back from their peers in the other chambers. Over lunch, or dropping by a colleague's chambers,

  Brennan probed. The results of his unofficial poll indicated that the vote might have been anything but "definitive." The four Nixon appointees seemed to favor the President's claim of executive privilege. Douglas, Stewart, Marshall and he were against it. Four-to-four with an inscrutable Byron White in the balance. White, as always, kept his own counsel. He seemed to enjoy keeping the others in doubt.

  But if Watergate was not before the Court, it was much discussed at Brennan's morning coffee with his clerks and secretary. Was the new special prosecutor, Leon Jaworski, a Texas millionaire and former A.B.A. president, a shill for the White House? Brennan was not sure. Was the House of Representatives serious about its impeachment investigation?

  On March 1, the Watergate cover-up indictment charged seven of Nixon's former aides including Haldeman, Ehrlichman, and former Attorney General John Mitchell.The tapes question would not go away. Both Jaworski and John Doar, Chief Counsel to the House Judiciary Committee, wanted more tapes for their separate investigations. Jaworski subpoenaed sixty-four more tapes, and again Sirica ordered the President to surrender the tapes to the prosecutor. The Court was back at the center.

  Sirica set 4 p.m. Friday, May 24, as the deadline for the President to appeal to the Court of Appeals for the District of Columbia. Nixon filed on time.

  Two hours later at the Supreme Court a group of clerks were on the basketball court for their regular game, when someone raced in to say that Philip Lacovara of the Special Prosecutor's office was downstairs at the court clerk's office. The basketball players jogged down in their gym clothes —at some peril should the Chief see them—to get copies of the filing.

  It was a cert petition asking for an expedited hearing. Jaworski was taking the extraordinary step of asking the Supreme Court to hear the tapes case before the Court of Appeals decision. In cases "of imperative public importance," requests to leapfrog the lower appellate courts were permissible, but had been granted only half a dozen times. The most recent had occurred when President Harry S. Truman seized the steel mills during the Korean War twenty-two years before.

  It was a risky strategy. If the Supreme Court refused to
grant expedited review it would be a stinging psychological defeat for Jaworski. Brennan felt strongly that cert should be granted. The President was saying that he, not the courts, should decide what, if anything, he was to turn over.

  Jaworski said he wanted an expedited hearing to ensure there was no delay of the trial of the former top Nixon aides. For Brennan much more was at stake. The House Judiciary Committee's impeachment inquiry was in full swing. Without the crucial evidence, the wounds of Watergate would not heal. It was time for the truth of Watergate to surface, Brennan felt.

  Five votes, rather than the normal four, were required to hear the case on an expedited basis, and Brennan knew that he could count on Douglas and Marshall. Douglas was eager to come to grips with his long-time antagonist. He regarded Richard Nixon as morally, intellectually and in every other way unfit to be President. Marshall was no less hostile. They might well be joined by Stewart. His skepticism about a President run amok had grown steadily. But this was the same Potter Stewart who once had been a possible Nixon choice for Chief Justice. Stewart toyed with progressive ideas, Brennan thought, but more often than not he fell back on the Ohio Republican principles of his past. White could be within reach. Burger was beyond hope. It was probably no accident that the White House had released, among the barrage of tape transcripts made public the previous April, a single transcript of no particular import that included a reference to the Chief's conversation with then Attorney General Richard Kleindienst. It disclosed that the Chief had forwarded his own list of candidates for the first Watergate Special Prosecutor through Kleindienst. Brennan was curious about what other references to the Chief might be on those tapes.