by Bob Woodward
Stewart knew who counted. Since the three liberals would be no problem, Stewart went first to see White. He asked White if he had seen the Chief’s draft yet.
"No," White said.
"Well, you better sit down before you do," Stewart said.
White agreed that the Chief’s draft was unacceptable. White had been the only Justice other than the Chief and Stewart to oppose the $38,500 damage award, and he distrusted psychiatry as much as the Chief did, but locking up a person like Donaldson without good reason was repugnant, and the Court should clearly say so.
Stewart told White he was going to try a dissent.
White was noncommittal, but he emphasized that he did not want to uphold the damage award.
As was his practice, Stewart sent a short memo to the other Justices letting them know he would soon circulate a dissent. Stewart considered the memo a courtesy, but it would also discourage the others from signing onto the Chief's opinion before they saw his dissent.
The Chief was surprised when he received the memo. He did not think his position had been uncompromising. Why didn't Stewart first try to offer some suggestions? Why was he leaping in with a dissent? It just didn't make sense.
Stewart told his clerks that he wanted his dissent kept short. The key was simplicity. Since he did not want to write any new rules, one possibility struck him almost immediately. The Chief referred only to the "right to treatment." But Donaldson's lawyers had argued that he had "a right to be restored to liberty by treatment or else by release." This suggested a simpler focus; the issue was not treatment, but something more fundamental: liberty.
A ruling could be narrowly confined to Donaldson and others like him, persons who were not dangerous to others or to themselves and who were capable of surviving in society by themselves or with the help of friends or family. Such a person had a right to one thing—not treatment, but liberty. Moreover, ensuring liberty was the Court's traditional business.
Stewart's clerks went to work gleefully, buttressing the opinion with everything they could find favorable to Donaldson. Much of this had been suggested by Donaldson's lawyers, Ennis and Heineman. The dissent was laced with references to the "narrow" issue before the Court. It focused on "release," the liberty question, and referred to treatment only in a footnote. "A finding of 'mental illness,' " it stated, "cannot justify the extinguishment of personal liberty."
Yet, with all their care, Stewart's clerks could not resist addressing the Chief's apparent concern with those who are guilty of "significant antisocial acts," whatever that might mean. Their final section read:
May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically handicapped or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty.
The opinion would not grant a right to treatment, but the language would show the Court's sensitivity to the interests of those confined in mental institutions. It could not help but have a positive psychological impact in the field of mental health. That left only the question of damages.
Stewart decided the best solution was to send the case back to the lower court and let it reconsider the award of damages. The clerks thought it likely that the lower court would again award damages, but at least there would be no sweeping precedent. This solution could also satisfy White and Stewart—who opposed damages—as well as those who favored damages.
As the Stewart clerks finished the draft, Klein reviewed it to be sure there was nothing offensive to Powell. The Stewart clerks had tried to give some general definition to mental illness. Klein was pretty sure that Powell would not buy an attempt to define such a complex term, so the definition was discarded.
When Stewart had edited the draft, a typed version was photocopied for Brennan, Marshall, Douglas and Blackmun. Sections of the tentative draft were shown to clerks in the chambers of White, Powell and Rehnquist. Since Stewart's opinion—only ten pages long, and seven of them devoted to a recitation of facts—broke so little legal' ground, it appeared likely to receive broad support.
Powell was troubled. He did not like the Chief's Donaldson draft. All term, however, it seemed that he had been challenging Burger. The Chief's response had taken an ugly turn. In February, Powell had circulated a significant labor opinion (Cornell Construction Company v. Plumbers & Steamfitters Local Union #100) for a five-man majority including the Chief. Powell's draft broadened the government's power to use federal antitrust restrictions against unions, and immediately drew joins from the other members of the majority except the Chief. Since Stewart's dissent had four votes, Powell was anxious to have the Chief's formal join memo, the crucial fifth vote. Burger was certain to join, Powell felt, because the opinion had an anti-union flavor. At a conference in April, Powell tried to get Burger to act. "All the votes in Connell are in except yours, Chief," Powell said.
The Chief stared at Powell and moved on to the next item of business.
Powell's clerk on the case then made some minor typographical changes in the draft and had it reprinted and re-circulated. That way a new draft would circulate and remind Burger that the case was awaiting only his vote.
The Chief sent back a memo requesting that something mentioned in a footnote be moved to the text.
Powell did it at once, sure that the Chief's vote could not be far behind. Another week passed. At the next conference, Powell mentioned the Connell case; only the Chief's vote remained to be counted.
Burger acted as if he hadn't heard.
Powell concluded sadly that the Chief was pressuring him. Burger knew that Powell held a key vote in a number of other cases, including Donaldson. It was just short of blackmail. But Powell decided that he might be overreacting. At the next conference, he again raised the Connell case.
"I'm thinking," Burger replied.
Powell had rarely been so stymied. Some things were clear. The Chiefs attitude toward unions was never in doubt. Powell's clerk jokingly suggested that they send another copy of the draft to the Chief with the postscript: "P.S. Chief, the unions lose." Powell was positive that Burger could have no real objections to his draft. But there had been about half a dozen conferences now.
In late May, the Chief finally sent his join. Powell was relieved, but the experience left a sour taste. Perhaps he had been wrong, but he could find no way to get over his suspicions.
Now, on the Donaldson case, Powell was relieved that it was Stewart who had taken on the Chief. He liked Stewart's draft a lot better; it was narrow, short and direct Still he wanted to see what the others did.
After the Chief's circulation and Stewart's dissent, Klein conducted a campaign against the Chief's approach, giving every phrase and sentence the worst possible interpretation, particularly the "antisocial acts" language. The debate turned not on what the Chief had said or intended, but on what Klein and some other clerks said it might mean. The isolation of the Chief and his clerks from the flow of Court gossip left the negative interpretation unrebutted, yet Klein was still unable to persuade Powell to vote for Stewart's draft.
Meanwhile, Burger was frustrated. His draft had been in circulation for two weeks, and he had not received a single join. The Chief tried to nudge Blackmun. "I think I'm going to get my Court on the case," the Chief told him. Blackmun knew differently. The Chief tried White and Powell, but got nowhere. He had expected at least Rehnquist to join right away. Maybe the join memo had been lost in the interoffice mail. A clerk checked. It hadn't. The Chief sounded out Rehnquist, who replied that he had a real problem with what had been done to Donaldson.
Now, the Chief found Stewart's dissent in his mail. And it was no ordinary dissent. Since seven of the ten pages were facts, it was clear that Stewart was trying to steal the opinion. It was a clever effort, avoiding the difficult issue of a right to treatment. Such a narrow opinion,
the Chief feared, would appeal to Blackmun and Powell.
The case had simply come to the Court in an unfortunate form, Burger reasoned. The lawyers for the doctors had done a terrible job. The Chief wanted to respond to Stewart's dissent, but he had to attend a judicial conference in Williamsburg, Virginia. He complained there about some of the attorneys who appeared before the Supreme Court. "The quality is far below what it could be," he told a discussion panel. Bazelon too was on the panel, and he praised the Chief Justice for speaking up about attorney incompetence. Bazelon agreed that it was "the most serious threat to the administration of justice." Privately, Bazelon thought the most serious threat to justice was probably Burger.
In Washington the next day, June 4, the Chief tried to figure out how to gather some votes for his draft. About all he could do was try to revive the debate and let everyone know that he was still waiting. In a short memo, he proposed a new footnote to his draft and stated his view of the conference's intention on right to treatment. "I believe a majority were of the view that no such right existed."
There was still no response the next day. Burger was angry now. The right-to-treatment issue could not be left up in the air. He decided to send a sharper memo. Any opinion without a firm assertion that no such right exists, he wrote, would be a serious mistake. Anything less "will bring us quite a volume of business as 'jackleg' lawyers begin to look for new fields to conquer. The Constitutional issue is fairly presented and ought to be met."
Stewart thought Burger's "jackleg lawyers" memo was a new low. He suspected that jackleg, an archaic word meaning "unscrupulous," was aimed at Heineman, his former clerk. Stewart decided, however, to respond indirectly. He circulated some revisions to his "dissent" along with a short memo saying that in the area of mental illness, "the Court should proceed cautiously and deliberately. . . . The Court of Appeals used the case as a vehicle for an expansive essay on the constitutional law on civil commitment. This was unnecessary, and perhaps we should say so. But surely we should not make the same mistake."
On Monday, June 9, Burger sent around a new, three-page memo. He wanted mainly to insure that the Fifth Circuit opinion was "washed out." "I am perfectly willing to consider alternatives so long as they make clear that the Court of Appeals' opinion is not to be considered precedent or the law of this case," Burger said.
Stewart heard a faint cry of desperation in the final sentence. The Chief was close to beaten. He had gone from insisting on a strong statement against a right to treatment to a willingness to accept "alternatives." It reminded Stewart of the Nixon tapes case. This time, however, the Chief was not going to expropriate his work. Stewart figured this was now his opinion.
Stewart was perfectly willing to state that the Fifth Circuit opinion was not to be considered the law. He drafted a short memo proposing an additional footnote to his opinion.
On June 10, White announced in a long memo his intention to vote with Stewart. First, he had a few kind words for the Chief's draft; the Chiefs concerns were not altogether unreasonable. He wished Stewart's draft had gone farther. "I would thus prefer to decide one of the questions Potter leaves open, namely, whether a State may confine a non-dangerous person solely for therapy. My vote at the Conference was that the state may not do so. Otherwise, I shall remain where Brother Stewart has left me. B.R.W."
With White's memo and sure joins from Brennan and Marshall, the clerks turned to the only remaining problem: how to enable Powell to join without being the fifth and deciding vote. Klein had finally concluded that Powell did not want to be the one to tip the balance. That would be, for this term, one slap too many at the Chief. The logistics received an extraordinary amount of attention, but in the end the solution proved easy. Join memos from White, Douglas and Blackman entered the interoffice mail system at about the same time as Powell's. So none of the Justices could be identified as the fifth and deciding vote. The dissent draft now had seven votes. Only Rehnquist had not yet voted.
In Powell's chambers the clerks broke out the liquor. The case had been snatched right out from under the Chief. Stewart's dissent would surely become a majority opinion for the Court.
Brennan, however, was still wary. Stewart had the votes, but there was no telling what the Chief might try. He might pull some stunt like reassigning the case to someone else. Conceivably, as a last-ditch effort, he could try to hold it over for re-argument. It would be prudent to move fast. As Douglas was now the senior Justice in the majority, Brennan decided, Douglas should make a reassignment. Brennan called him at the Rusk Institute in New York and Douglas quickly agreed to reassign to Stewart.
Douglas's clerks wanted to be sure that Douglas's action would not be questioned. At a lunch with Stewart a few days earlier, Stewart had started talking about the last year of Woodrow Wilson's presidency. Wilson was physically and mentally incapacitated, Stewart had said, and Wilson's wife had become a surrogate President. She would visit the President and emerge with a series of orders. "The President wants this, and the President wants that." No one could be certain whether the desires were the President's or Mrs. Wilson's.
Douglas's clerks pondered Stewart's message. Did he suspect them of usurping? Was he warning them to avoid the temptation? It had all been very friendly. They decided to act cautiously on the Donaldson reassignment memo.
They had the memo typed, signed by a clerk and sent around, but they followed immediately with a memo to Douglas securing his written authorization.
Meanwhile, the Chief retreated to his office. He had few options left. There was only one thing that would allow him a semblance of dignity. Burger picked up the phone and called Stewart. "Potter, it looks like you clearly have the votes," he said graciously. Of course, Stewart should go ahead and change his dissent to a majority opinion.
Burger immediately sent out a memo telling the conference that Stewart was writing for the majority. The reassignment memos from Douglas and Burger crossed in the mail. There was no dispute.
For the Chief, the battle was over and lost. He had maintained his poise, but when one of his clerks came in, he could hold it in no longer. What had happened? he asked, stalking about his office. Just what the hell was going on? A major defeat on a major case, and to Potter Stewart of all people?
The clerk agreed with the Chief that his opinion had been fine, had been excellent in every respect.
It made no sense. His colleagues were out to embarrass him, Burger raged. They wanted to hurt the office he held. The clerk had never seen the Chief so angry.
His opinion, the Chief said, had been an important piece of sound legal work. When he got right down to it, the movement against him had started right after he had circulated his first draft nearly a month before. His draft might have proved unpopular, but it said what needed saying. The others had neither the foresight nor the courage to join him. Stewart's draft was not all that bad. But it just did not do enough to put to rest forever the notion of the right to treatment. The question now was how to salvage the most from a bad situation. Was a reasoned dissent in order?
The Chief looked over his twenty-one-page draft. It represented so much work; if he could use it, he had a chance to get something into the law books on the right-to-treatment issue. The more the Chief examined Stewart's majority, the more he saw an opportunity. To win his majority, Stewart had said nothing. He had written bland and evasive nonsense.
A dissent would be quickly forgotten, but a strong concurrence, addressing the issue Stewart had dodged, could have a pronounced practical effect on the lower courts. The right-to-treatment concept needed to be choked off. If it were well done, a concurrence that took no issue with the majority opinion, would appear, but for technical reasons, to have commanded the others' votes.
So the Chief began. "Although I join the Court's opinion and judgment in this case, it seems to me that several factors merit more emphasis than it gives them." His twenty-one pages were easily juggled and trimmed, his attack on the Fifth Circuit opinion sharpened, and the
"significant antisocial acts" passage retained.
The Chief's final version was about half as long as the original. It was, in his view, an effective deterrent to those who might try to press new rights for mental patients. His clerk pointed out that the concurrence would look better if no one else joined. If Rehnquist signed on, it would look like a right-wing hatchet job. Standing alone, the concurrence seemed like an important message from the Chief Justice. The Chief got his wish. Rehnquist, still concerned about Donaldson's fate, decided that Stewart's approach was reasonable and gave Donaldson a fair chance to get his damage award. He was the last Justice to join the Stewart opinion.
The conference decided to announce the decision on Thursday, June 26, the next-to-last decision day before the Court was to adjourn for summer recess. Burger announced in court that Stewart would deliver the decision in O'Connor v. Donaldson. Stewart flicked on his reading light and turned his head toward the Chief. For a tense moment, the two men looked at each other sternly across Douglas's empty chair. Only the Justices and the clerks realized the significance. Stewart then turned to his papers. With his glasses on, in his familiar hunched pose, he read. The Chief gazed distractedly around the courtroom and toyed with his glasses.