The Brethren

by Bob Woodward

  For Stewart, it was bittersweet. It was a victory, but not the kind he had imagined when he came to the Court seventeen years ago. He had merely put out a small brush fire.

  Stewart realized the risk he had run taking this case from the Chief. A few days earlier, the Chief had done something that revealed the depth of his anger.

  In a case called U.S. v. American Building Maintenance Industries, Stewart had circulated a pro-business majority draft that would limit application of the federal antitrust laws. He had received five votes at conference, including the Chiefs, and Burger had assigned the case to him. Stewart had gotten joins from all in the majority except the Chief.

  White had circulated a one-sentence statement saying that, although he agreed with the result and joined part of Stewart's opinion, he was dissenting from the last part of it. Then, right after it became clear that Stewart was going to win on Donaldson, Burger circulated a memo saying he had rethought his position in American Building Maintenance and was going to join White. It was incredible to the other Justices. White had written one sentence; there was really nothing to join. And White and the Chief rarely agreed on antitrust cases.

  White howled with laughter at the Chief’s memo. Stewart and he both concluded that it was revenge for the Donaldson case. The Chief was switching from a basic position. But hilarious as it might be, White figured he had better expand his one-sentence statement. If the Chief was serious, it might be a chance to get him on record for stiffer antitrust enforcement. White added three more sentences.

  Stewart was finally rescued by Rehnquist, who went to Burger and urged him to stick with the Stewart majority. Burger sent a memo saying he had once again reconsidered, and was joining Stewart's majority.

  As the end of the term drew near, the last of the outstanding majority opinions began circulating. Powell had written three out of a series of four cases involving border searches. Although Rehnquist did not fully subscribe to Powell's approach, he provided a fifth vote so that Powell would have a majority.

  The Chief had assigned the fourth border search case (U.S. v. Peltier) to Rehnquist. The conference had treated it as simply a question of whether to apply the Court's two-year-old decision (Almeida-Sanchez v. U.S.) retroactively.

  That decision had prohibited roving border patrol searches for illegal aliens without a warrant.

  The conference had voted 5 to 4 that border patrol agents should not be held responsible for a standard that was not in force at the time of search. The majority felt it would be silly to exclude as evidence the 270 pounds of marijuana the agents had found, just because the search was later declared technically illegal.

  When Rehnquist's draft came around there was virtually no comment or reaction to the routine retroactivity question. Then a Douglas clerk noticed an unusual twist of logic and several seemingly inappropriate citations. After reading these other cases, he came to an astounding realization. Rehnquist was drastically changing the entire exclusionary rule without explicitly saying so. Rehnquist held that evidence could only be excluded from prosecutions when the police used methods they knew to be illegal.

  Since Douglas was in the hospital, the clerk took his finding to Brennan. Brennan was incredulous. The clear consensus of the conference had been to decide only the question of retroactivity. Here was an underhanded attempt to slip through a major policy shift. And Brennan was even more aggravated when he heard through the clerk grapevine that White had also been an accomplice.

  Incensed at the subterfuge, Brennan instructed one of his clerks to prepare a no-holds-barred dissent pointing out the duplicity. -

  Powell and Blackmun immediately held up their join memos. In an effort to get things back on track, Burger sent a series of notes to them urging them to join.

  Rehnquist finally agreed to drop several of the citations, but retained other references that tended to undermine the exclusionary rule.

  In return Brennan dropped several of his own specific sections accusing Rehnquist of duplicity. But he retained others. "... if the vague contours outlined today are filled in as I fear they will be, [the Rehnquist opinion] forecasts the complete demise of the exclusionary rule . . . ," Brennan's dissent said. "This business of slow strangulation of the rule, with no opportunity afforded parties most concerned to be heard, would be indefensible in any circumstances. But to attempt covertly the erosion of an important principle over 61 years in the making . . . clearly demeans the adjudicatory function, and the institutional integrity of this Court."

  Brennan told his own clerks and those from Douglas and Marshall's chambers to recheck the last few Rehnquist opinions for similarly disguised tricks. They found none. Brennan solemnly resolved to be more vigilant.

  The Court adjourned June 30 with the announcement of the last cases.

  The most important piece of unsettled business was William O. Douglas, who was still at the Rusk Institute. Despite four hours of vigorous daily exercise to strengthen his left side, after two months Douglas was able to take only a few steps with assistance. His left arm remained in bad shape.

  The doctors asked Douglas not to leave the rehabilitation center. It was to no avail. He went shopping at Abercrombie and Fitch, dined at the Drake, Sardi's, and the Algonquin Hotel. He attended the fiftieth reunion of his Columbia Law School class, received visiting dignitaries and reporters, and completed the first volume of his memoirs. He decorated his room with "Save the Whale" posters

  sent him by an environmental group. Accepting an award from the Sierra Club, Douglas gave a halting fifteen-minute speech and then led the way to the hotel bar. Douglas supplemented his diet with homemade bread and peach jam sent to Him by the Chief. Burger had attached a label to the jam reading "fortified," meaning he had added brandy.

  It didn't take long for the doctors to realize that there was no way the rambunctious Justice would sit long without work. He was cantankerous with the hospital personnel. He borrowed the office of a medical school professor and at other times worked at the Foley Square Court House. Though he arranged to have his secretaries fly to New York on a rotating basis so he could keep up with Court business, Douglas worked only a few hours each day, because the rigorous therapy tired him out Still on medication, he would get drowsy.

  On July 11, Douglas had a visitor, the writer Sidney Zion, who asked him how his leg was progressing.

  "I've been kicking forty-yard field goals with it in the exercise room," Douglas said. "Dr. Rusk wants me to call George Allen and sign up with the Redskins. They could use a field-goal kicker, and hell, if George Blanda can play, why not me?"

  The visitor feigned astonishment. Although the oldest professional football player in the league, Blanda was nearly thirty years Douglas's junior.

  "Yes, but you ought to see how I'm arching them," Douglas said, laughing.

  The conversation turned serious. What about the future?

  "There's no chance I'll retire," Douglas promised. "I'll be there in October positively."

  1975 Term

  on Thursday, July 24, the Chief went to New York to visit Douglas at the Rusk Institute. In a statement released through a hospital spokesman, Burger said he was "extremely pleased about the progress Justice Douglas has made."

  Burger had actually reached a quite different conclusion: Douglas had to quit. The Chief told friends in Washington and at an A.B.A. gathering that the Court was "limping along" with a terrible backlog of cases because of Douglas's illness. There were already too many cases held over from the previous term.

  On August 7, against the advice of friends, Douglas and Cathy left for Goose Prairie. They stayed there through August and early September. A radio telephone was installed in the house. In early September, Douglas decided to hear oral argument at the old Yakima Courthouse on an emergency request to prevent disclosure of grand-jury records. On his instructions, Douglas's son phoned a local newspaper to say that the Justice would be coming down the next morning. It was a showcase appearance to prove he could still funct
ion.

  When he arrived in Yakima on Thursday morning, September ix, Douglas appeared tired and frail. Once he was lifted to the bench, the lawyers argued for about an hour. Douglas then announced that the Court would recess for lunch at 12:30. It was already 1 p.m.

  After lunch, the lawyers finished their arguments. Douglas seemed to have understood, but he said nothing. The audience waited, puzzled, shifting in their seats. Occasionally Douglas shuffled papers, picked up his water glass, stared at the ceiling. Five minutes went by and then ten. After thirteen minutes, he broke the silence. He thanked the lawyers for their "spirited" and "helpful" argument

  The spectators and the attorneys, relieved that Douglas had snapped back, awaited his decision. But Douglas began to talk about federalism. He rambled on, comparing the governments of the United States and Australia. Tension again began to rise in the courtroom. Finally, he paused and said he would issue the emergency stay. He turned to the winning attorney who had driven him to the court that morning. "I hope you will again come to Goose Prairie to visit us," Douglas said. "It is a lovely place with a salubrious climate. There are some who would like to change that, but most of us are pretty opposed."

  Douglas then recessed the hearing. His public appearance had backfired. The news stories described a Justice who was clearly incapacitated.

  Cathy Douglas finally decided to call Charles Reich, a former Yale professor, a former law clerk for Hugo Black, and the author of the best-selling book The Greening of America. She hoped that Reich, an outspoken libertarian and an old friend of Douglas, could convince him to resign. Reich said he would not dare come to Goose Prairie until Douglas invited him.

  Later that day, Reich received a call from Douglas. "Charlie, can you get up here this afternoon?" he asked.

  Reich said he would be there as quickly as possible. It was shortly after eight when he arrived at Douglas's cabin. Cathy greeted him. "Bill's lying down in the bedroom," she said.

  Reich hesitated. The Douglas he knew would never receive a visitor in his bedroom. But Reich was told to go ahead. He entered the darkened room. He was shocked at Douglas's appearance. His face was drawn and gaunt. His son, Bill Jr., raised Douglas to a sitting position. Douglas's voice, always low, was so soft that Reich could barely hear him. They began to talk. One moment, Douglas was lucid, his old caustic, witty self. Then without warning, he broke off in midsentence, his eyes glazing. He reminisced, then suddenly returned to the present. His hands shook uncontrollably.

  Several times an hour, Cathy or Bill Jr. took him out of the room because he was incontinent. Douglas summoned them like servants, with eye or hand signals. And every half-hour or so he needed to be transferred from the bed to a chair and then back.

  "Bill, you must resign," Reich told him.

  No, Douglas replied. "There will "be no one on the Court who cares for blacks, Chicanos, defendants, and the environment." Even half functioning, he said, he would be better than no one. If he were to resign, Ford would name his replacement. That person would obviously be on the wrong side. Better to hang on, he said. "Even if I'm half dead, maybe it will make a difference about someone getting an education."

  Reich responded softly. "Why do you want to be there with all those people you despise?" he asked. Staying on would eventually bring out many of the "jackals." "There are so many of your enemies lying in wait just to see you fold," Reich said. "Why spoil a perfect record? Isn't thirty-six years enough?"

  Douglas did not answer.

  Reich asked him whether he was going to try to hold on until a Democratic President could appoint his successor.

  It didn't matter who was President, or from what party, Douglas said. Whoever it was would be someone who would not care. Powell, Black's replacement, was a Democrat. It was a dismal choice, a country-club lawyer to replace a populist. Douglas was sure that Burger wanted to get him off the Court. But he wouldn't leave. If he did, there would be no one on the Court to blow the whistle.

  They went back and forth. Douglas skillfully parried each argument, though he slipped away at times, wondering aloud what he would do if he retired, whether he could do environmental work.

  Reich paused. He became more explicit. Black had hung in stubbornly, but he knew when it was finally time to go. "You can't even sit on the bench," he said. What would he do if he were in pain during oral argument?

  "I could leave the bench. I'll try it and see," Douglas responded. "The Court is my life. What will I do if I leave?" He paused. "I will be committing suicide."

  Exasperated, Reich got tougher. "You can't even read. How are you going to decide cases?"

  "I'll listen and see how the Chief votes and vote the other way," Douglas snapped.

  It was nearly midnight when Reich left. He returned the following day to renew his plea. Cathy joined in. There were mail sacks of cert petitions in the cabin. "You haven't even read them," she said. Douglas said he had. "They aren't even opened," she rejoined. Douglas waved her off. Reich could see it was useless.

  On Saturday, September 27, Douglas said he would go back to Washington to see if he could handle it. They could not expect him to decide now. "I'm not quite ready to commit suicide," he told Reich.

  Douglas's new clerks had no hint about what to expect when he returned. Reports from Yakima had not been encouraging.

  Douglas arrived at the Court very late the morning of Monday, September 29, minutes before the week long cert conference to deal with the hundreds of petitions that had come in during the summer recess was scheduled to begin. He was unprepared, and he demanded that the files on every case, even those which were not going to be discussed, be brought with him to conference. His clerks loaded up ten carts and off they went, Douglas leading the procession in his wheelchair, his secretary pushing and spraying Lysol on the wheels to mask the odor from the bag for his incontinence.

  The other Justices had been waiting in the conference room for some time. Blackmun's jaw dropped when he saw the train of carts being pushed behind Douglas. The unpleasant odor filled the room. Douglas was wheeled to his place at the end of the conference table. His clerk opened one of his notebooks to the memo on the first case on the discuss list.

  "We're not starting there," Brennan said, indicating the first case.

  It took several moments for the clerks to locate the right notebook.

  White seethed with impatience. He had expected Douglas to retire. Douglas's clerks shouldn't even be in the conference room. Finally, they located the case and left.

  Burger was polite and helpful. Brennan sat beside Douglas, assisting him with the files and papers. The conference ended at 3145, earlier than usual.

  The rest of the week was torture for the other Justices. Douglas was in constant pain and barely had the energy to make his voice audible. He was wheeled in and out of conference, never staying the entire session, leaving his votes with Brennan to cast. Powell counted the number of times Douglas fell asleep. Brennan woke him gently when it came time to vote.

  As always, Douglas demanded that the Court grant cert in about three times the number of cases there was time to hear. The tension grew. "Get him out of here," White once told Datcher, who had been summoned to wheel the sleeping Douglas from the conference room. Datcher was now more nurse than messenger.

  On Monday, October 6, the first day of argument of the new term, everyone wondered how Douglas would cope. As the lawyers who were arguing the first case proceeded, Douglas's head sank to his chest. Because of his paralyzed hand, he had trouble ripping paper from his pad. He flapped the pad about with his good hand. Finally a messenger held the pad so that Douglas could tear the paper off.

  After the- lunch break, Douglas was more animated, chatting with Stewart, gesturing with his right arm, keeping the messengers busy with notes and requests for books. The next day he was back to dozing. A pattern was evident. Douglas had moments of lucidity and energy followed by near incoherence and sleep. His absences increased. He could barely function on the bench. H
e needed help to get his glasses from his coat pocket under his robe. His pills made him drowsy. Often he left the bench midway through oral arguments because of the unbearable pain.

  Douglas's entrances and exits were virtually ignored by the other Justices. Marshall watched, however, and when Douglas fell asleep, he signaled a messenger to wake him.

  A worried messenger once asked Burger what to do. "The best thing," Burger said, "is to do nothing."

  In his chambers, Douglas lay down after the morning arguments to ease the pain, and he sometimes slept for hours. Eventually a small bed was brought down from storage. Some days Douglas was in so much pain that Cathy kept him home. Other times, he came in disheveled and unkempt. The clerks asked Cathy what was going on. "He's doing fine," was all she said. Douglas still spoke only of his "little fall." He became angry reading a draft dissent prepared by one of his clerks (Matthews v. Eldridge). Who did the clerk think he was, "insulting the Court"?

  Douglas asked. The clerk was dumbfounded. He went to Brennan, who assured him there was nothing wrong with the draft. Finally, the clerk realized what had happened. The stroke had also affected Douglas's vision. He tended to skip lines while reading. Douglas had skipped several lines.