The Brethren

by Bob Woodward

  As the beginning of the term approached, the Chief scheduled the regular start-of-the-term cocktail party and get-acquainted session for the new clerks. There were more women clerks at the Court this term than ever before— Brennan, Blackmun and Powell had each chosen one for the first time. All three of Bazelon's clerks from the previous year were at the Court; eleven of the twenty-nine clerks had clerked at the U.S. Court of Appeals for the District of Columbia; and an overwhelming majority of the new clerks were liberals, products of the antiwar Watergate period. Many were already friends and all were busy forming their own version of an old-boy network. Cynical as they might wish to seem, however, many of them were taken aback by the irreverence of the clerks of the previous year toward the Justices and the Court.

  The party provided the first glimpse of Douglas, already a legend White still looked like a football halfback. Rehnquist was young and jolly, flaunting his informality. Soon the Chief took the floor, welcoming everyone and expounding on the history and traditions of the Court. He was, several clerks reluctantly admitted, impressive.

  Burger turned the floor over to Brennan, a true hero to many of the clerks. A gentle man, smiling ear to ear, the great civil libertarian began slowly. There is one responsibility that all of them—Justices and clerks—shared, Brennan said. That was to preserve, at all cost, the confidential nature of the internal workings of the Court. The Justices, Brennan said, trust that the confidences shared with the clerks will be respected. A hush fell over the room.

  Never, Brennan said, has any news story that leaked from the Court been traced to a clerk. Should anything ever leak, that bond of trust would be broken. Justices would never again be able to enjoy the same confidence with clerks. Remember, he lectured, reporters use the same public cafeteria as the clerks would be using this term, and they had been known to follow clerks through the line to eavesdrop. He had already informed his own clerks not to talk to reporters under any circumstances; even a "no comment" could be misconstrued by a reporter. "I do not talk to reporters at any time, at any place, on any subject," said Brennan. Finally, he stepped aside and the party continued, subdued, for another half hour.

  Some clerks were stunned. Was the author of so many important First Amendment opinions so paranoid and contemptuous of the press? The clerks could believe that Brennan was sincere about the need for confidentiality. But why turn a simple ground rule into a rebuke?

  Brennan later told his clerks that the conference had insisted that he, as senior Justice, give the briefing since the Chief had delivered a diatribe on security during the previous term which had been too severe. Brennan said that he had felt obliged to overstate his case; but his clerks knew that Brennan was paranoid about the press.

  The term got off to a relatively good start for Douglas. Relations were better with two of the perennial irritants in his life—his clerks and the Chief.

  In an early immigration case (Saxbe v. Bustos), the conference was deadlocked 4 to 4, with the Chief reserving his vote. Douglas drafted an opinion that allowed an increase in immigration of day workers from Canada and Mexico. Despite a disinclination to beg for votes, he walked over to Burger's chambers and left not long after with the Chief's join memo in hand.

  Douglas's three clerks were working day and night to answer his queries as fast as humanly possible. At least once they brought sleeping bags to the office and spent the night to meet a deadline.

  No clerk was fired in the first months, though early in the fall one of them had committed the faux pas of substantially reorganizing one of Douglas's drafts. When he had seen the changes, Douglas leaned on his buzzer summoning the clerk. Sitting quietly at his desk, Douglas said only: "I can see you've done a lot of work, but you are off base here. If and when you get appointed to the Supreme Court you can write opinions as you choose."

  The clerk was surprised by the lack of severity.

  On Tuesday, December 31, Douglas came to his chambers wearing a tweed hat with a wide brim. He was off that afternoon to Nassau for a New Year's vacation break. Though he loved to travel, Douglas didn't really want to go south at this time. He preferred cooler climates, and because he had a bronchial infection his doctor had recommended that he not travel at all. But his wife, Cathy, had wanted the trip.

  Douglas called in his clerks. The next few days would be a slack period, he said. They could take some time off if they wanted.

  The clerks were flabbergasted. The clerk selection committee had warned that Douglas granted no vacations whatsoever. But Douglas was clearly in a holiday mood. He packed his briefcase, put aside a popular novel, James Michener's The Drifters, and after wishing his secretaries a Happy New Year, went to meet his driver for the ride to National Airport.

  They arrived in balmy Nassau in the early evening. Once they had settled in their hotel room, Cathy went to the lobby to buy something and returned a few minutes later. She found her seventy-six-year-old husband collapsed on the floor. Dazed but still conscious, Douglas was having trouble moving his left arm and leg. He was taken to a hospital, and American diplomatic officials in Nassau were informed.

  The Chief was at a New Year's Eve party when he received word that Douglas had been stricken. He could learn only two details. It looked like a stroke, and Douglas was in serious condition. The Chief reached President Ford by phone about 10:30 p.m. in Vail, Colorado, where the President was on his annual skiing vacation with his family. Within an hour, at the President's direction, a jet transporting Douglas's personal physician, Dr. Thomas Connally, was on its way to Nassau. The doctor quickly decided that it would be best to get Douglas back to the United States, where he could receive better care.

  As they prepared Douglas for the flight to Washington, Cathy told him that President Ford had sent the plane for his trip back. "My God," Douglas said groggily, "you know they'll drop us in Havana."

  When Douglas finally arrived at Walter Reed Army Hospital, he was immediately put into intensive care. Douglas's staff at the Court received scant information. Abe Fortas, the former Justice and one of Douglas's closest friends, visited Douglas at the hospital and stopped by his chambers on Thursday. Fortas told Douglas's clerks that their boss might be back in three to four weeks.

  The following Monday, Cathy called Marty Bagby, Douglas's senior secretary. The Justice, she said, was "hollering for Mrs. Bagby." Traffic was snarled because of a snowstorm, and it took Bagby some time to reach Walter Reed. When she entered Douglas's room, he was sitting up in a wheelchair, wearing a checked shirt he had packed for the Nassau trip. "What took you so long?" he asked.

  That Monday, January 6, the eight other Justices gathered for a special conference. What action, if any, should they take in Douglas's absence?

  There were no formal rules on the participation of a disabled Justice. Technically, he could vote on all cases. A Justice did not have to attend oral argument or listen to a tape of it. He did not even have to attend conference. He could send his conference vote by memo, or through another Justice. But a sick Justice was a handicap. The really tough cases, cases on which the Court was closely divided, could not be decided if one Justice was unable to vote, or if there was a chance that he might die or retire before the decision came down. Brennan had once said that a disabled Justice was almost as bad as one you disagreed with.

  The Justices approached the situation carefully. There was nothing more delicate. Each man was implicitly threatened by the very notion of the others determining the fate or power of one of them. Worst of all was the uncertainty. Douglas might recover quickly and be back soon. They agreed to delay arguments in five cases in which Douglas was likely to be the swing fifth vote, rescheduling them for later in the term.

  On January 27, Douglas was removed from the seriously ill list at Walter Reed and his condition was listed as satisfactory. One of his clerks and a secretary spent most of each day at the hospital with him. At least superficially, Douglas kept his hand in the affairs of the Court.

  But when Brennan visite
d his friend at Walter Reed in late January, he saw that the fire and passion and energy were gone. Douglas's speech was impaired; he had difficulty enunciating certain words. Cooped up, he was confused about the time; waking in the middle of the day, he often thought it was morning. It was clear to Brennan that Douglas's return was not imminent.

  On Thursday, January 30, the Court released its February argument calendar. Some of the cases postponed from January were now to be rescheduled. Brennan was nervous; the conference could wait no longer. Then, on February 11, six weeks after Douglas's stroke, Marshall fell ill with pneumonia and was sent to Bethesda Hospital for treatment. With his two liberal colleagues now hospitalized, Brennan had serious cause for worry.

  Douglas's prospects were not good, and who could tell about Marshall—a sixty-six-year-old man who was overweight, smoked heavily, at times drank too much, and had soured on his work. But Brennan was determined to appear upbeat He gathered the law clerks of both Douglas and Marshall in his office with his own clerks. He was nurturing, confident and open. They would keep things going, he told them. The nine clerks, working together, would help him keep on top of any developments at the Court. His own clerks knew that Brennan was less than confident. Each time the Chief passed at conference, each time he changed his vote, each time he circulated a stupid memo, Brennan's irritation grew. His clerks thought that every time he looked at Burger, Brennan was reminded of how much he missed Warren.

  One day, Brennan was giving a detailed conference briefing to his clerks. He began a review of the vote in a particular case. He explained how White voted, holding up his thumb. Then, with his index finger, he indicated Powell's vote. Skipping his middle finger, he continued to count. He saved the Chief for last. "And the Chief . . ." Brennan smiled wryly and raised his middle finger in an obscene gesture.

  Brennan felt that he got terrible assignments from the Chief. One decision he was assigned to write (Antoine v. Washington) addressed the question of whether Indians in Washington state could hunt and fish in the off season. The answer turned on an interpretation of an executive order issued by President Ulysses S. Grant 102 years before. Brennan seethed at having to write this "chickenshit case." He had a solid majority of six, including the Chief, but typically, the Chief had not sent in his join memo, even though Brennan's draft had been in circulation for several weeks.

  Late one afternoon at about four o'clock, just before Brennan planned to leave for home to see his ailing wife, the phone rang. The Chief wanted to see Brennan on the Indian case. Brennan went down and waited. The Chief was tied up with other business, his secretary said. Brennan returned to his office, only to receive another call an hour later. "Dummy wants me," Brennan told his clerks in disgust as he walked out the door.

  At Burger's chambers, Burger showed Brennan several words he wanted added to a long paragraph in the draft. Brennan said he would consider the addition. Then he stomped back to his chambers and summoned his clerks. They had never seen him so angry. "Here is his change," Brennan said. "What the fuck does it mean?"

  The clerks and Brennan examined the paragraph. It made no sense. Brennan concluded that it was just another of the Chiefs niggling and arbitrary changes, made perhaps only to prove that he had read the draft. He was also suspicious of the Chiefs timing. Burger knew Brennan left at 4:30. Brennan resented the Chief's apparent insensitivity to his wife's illness, but he was determined not to be provoked into matching the Chief's pettiness. Swallowing his resentment, he told the Chief that he would be happy to make the addition. Then he left the Court wondering: Why did he still care?

  At the hospital, Douglas was impatient. Each day, he spent hours in arduous physical therapy for his arm and leg. The paralysis in the leg showed some signs of improvement; that in the arm did not. Once, he took several steps with a leg brace. But he could not, or would not, walk outside the therapy room. For Douglas, who had always overcome his problems through sheer determination, the frustration was excruciating. As a child, he had conquered polio after the doctors had-said he would never walk again. He had missed most of the 1949 term when a horse fell on him and cracked twenty-three of his ribs and punctured a lung. But, as he later joked, the horse died and he lived.

  Douglas's secretaries and clerks visited daily, and he dictated to them. But with his left arm immobilized, the difficulty he had turning pages slowed him immensely. As he realized that his body no longer responded to his mind, he became increasingly confused and depressed. His doctors feared that he had lost his drive to walk again. He would drift off, shifting from one subject to the next. Now he concluded that it was the hospital and not his illness that was the barrier. He had to get out.

  Blackmun stopped by. Douglas pleaded, only half joking, asking Blackmun to become his guardian: "Will you be my best friend* and swear out a writ to get me out of the place?" Finally, he announced to one of his secretaries and his messenger, Datcher, that he was going to escape. The doctors got wind of the plan and stopped it. But Douglas persisted. The doctors at last agreed to let him spend one night at home. An overnight pass was granted for Wednesday, March 19.

  Once out of the hospital, Douglas ordered Datcher to drive him to the Court. He arrived about 5:30 p.m. and was wheeled to his desk. He had been away seventy-eight

  * A variant of the usual term next friend, meaning guardian.

  days. Working there for several hours was taxing. His wife, Cathy, called, upset. The overnight pass was so he could come home, not work, she said. He was in a good mood, and said he would be there shortly.

  The following day, Douglas refused to check back into the hospital. It was not unexpected. The doctors got him to agree to come in at least three times a week for physical therapy.

  Reporters saw Douglas around the Court and asked Barrett McGurn about the sling on his left arm. Douglas wanted the press office to say that his arm had been injured in his "fall," as Douglas referred to his stroke.

  McGurn consulted with the Chief. Burger didn't want to dispute Douglas; he told McGurn to issue the misstatement about the "fall" in Douglas's name, rather than as a statement from the Court. No more information about Douglas was to be given out, the Chief ordered. To make Douglas's return easier, Burger had the Court carpenter build a ramp so his wheelchair could be rolled up to the back of the elevated bench.

  On Monday, March 24, Douglas, drawn and pale, was wheeled in for oral argument. His eyes had a haunted, wild look. At the afternoon session, he had to leave in the middle because of intense pain in his left side. The next morning, Douglas called reporters to his office shortly before the 10 a.m. oral argument began. Sitting at his cluttered desk, he tried to appear casual.

  A reporter asked what he was going to do.

  Douglas said he was going to listen to the tapes of all the January and February cases. He would be able to cast his vote in each one.

  Had he considered resigning?

  "Never entered my mind," Douglas said.

  Was he staying on, waiting for a Democratic President to replace Gerald Ford, so that Ford would not name his successor?

  "That is not a factor in any of my calculations," he stuttered.

  When he was asked how he felt, Douglas was more frank; "I have been through a considerable ordeal; there is not the same energy I had beforehand."

  Slurring his words, he conceded that he was walking only in therapy sessions at the hospital, but added: "Walking has very little to do with the work of the Court." He maintained that he would walk soon, however, and invited the reporters to go hiking with him the next month.

  Had he left Walter Reed the week before without his doctor's permission? one reporter asked. Douglas just sat with his pale, glassy-blue eyes staring at his desk. Someone mercifully cut short the embarrassing silence with another question.

  When the Chief got word of Douglas's pathetic performance, he was upset. Far from settling anything, Douglas's press conference only raised more questions about his health.

  Burger believed Douglas was d
eveloping the paranoid qualities of many stroke victims. Douglas complained that there were plots to kill him and to remove him from the bench. Once he was wheeled into the Chiefs chambers and maintained it was his. Rumors circulated among the staff that Douglas thought he was the Chief Justice. Douglas could sit in one position comfortably for only a short period, and he often fell asleep at oral arguments. When Court sessions were gaveled to a close, the other Justices disappeared quickly behind the red curtains. The audience was left standing, their eyes naturally on Douglas, who sat alone waiting to be helped out.

  After working part-time at the Court for about three weeks, Douglas acknowledged that he had not been ready to return. On April 10, he checked back into Walter Reed with a bad cold. The Court still had the problem of a disabled Justice, and there was no clue to the future, only the certainty of more uncertainty.

  Brennan was at his desk one afternoon when Blackmun called with a question about a sticky legal technicality. Did Brennan have any ideas?

  "Harry, I'll be right over," Brennan said. Dropping his own work, he hurried down the hall to Blackmun's chambers.

  A clerk passing by Blackmun's office observed the two Justices a short time later. Blackmun was at his desk and Brennan stood behind him, one arm on Blackmun's shoulder, the other extended to some memo or law book. It was part of Brennan's "cultivation of Harry project," as one clerk called it.