by Bob Woodward
The clerk took the opinion back to Douglas and read it to him aloud.
"Yes, that's what I want," Douglas said.
In late October, Burger circulated the first assignment sheet of the term. At the minimum, the Chief usually gave each Justice at least one or two cases to write. Douglas got none. In each of the three cases where Douglas technically had the prerogative to assign the opinion, Brennan and Burger had consulted on the assignments. Brennan, White and Marshall would each take one. Brennan was pained to find himself conspiring with Burger on assignments. The others viewed it as the surest signal that Douglas was finished.
On Wednesday, October 28, the doctors at Walter Reed told Douglas his condition would not improve. He would always be paralyzed, unable to walk, and in nearly constant pain.
Douglas was back on the bench for oral arguments the next Wednesday, November 5. At about 10:45 a.m., he passed a note to a messenger—"Tell Datcher I need to return to my office."
As Douglas was taken from the bench, Burger passed a note of his own to a messenger, underlining the first word: "Discreetly find out when Justice Douglas is returning." Fifteen minutes later, the messenger reported back that Douglas was resting and would not return until the afternoon. Burger interrupted the attorney who was arguing the case before them and postponed argument until Douglas returned.
After lunch, Douglas was back on the bench. He asked a messenger to get the volume of the federal statutes that included a section on the retirement of federal judges. Then, as he began getting drowsy again, he asked for some tea and his pain pills. The Marshal of the Court signaled the police to carry Douglas out.
The next day, Douglas and Cathy went to the Rusk Institute in New York. Douglas wanted a second opinion.
The doctors at the Rusk Institute agreed with the Walter Reed doctors and added that with rest his condition might improve. Determined to continue, Douglas rushed back to Washington in time for the Friday conference. Again, the pain became unbearable and he had to be wheeled back to his chambers. The next Monday night, he told Cathy he was quitting.
On Tuesday, Douglas met with his friends Clark Clifford and Abe Fortas. They prepared a letter of resignation to send to President Ford. Douglas returned to the bench that afternoon with the letter folded in a coat pocket beneath his robe.
He informed Burger of his decision the next day before lunch. At noon, the Justices gathered in their private dining room to celebrate Blackmun's birthday. After they sang Happy Birthday, the Chief broke the news. "Bill wants me to tell you he's written a letter to the President."
Douglas sat quietly in his wheelchair next to the Chief. With tears in their eyes, each Justice shook Douglas's hand.
Gripping the resignation letter, Blackmun returned to his chambers still in tears. He sat and drafted a tribute to Douglas: "He was in a nice sense, a lone eagle but a strong and soaring one. . . . Decisional life was never dull when William O. Douglas was participating. His like probably will not appear again for a long, long while."
Douglas wrote a letter to the Justices in response to their tributes.
My dear Brethren, Your message . . . filled my heart with overflowing emotion ... I am reminded of many canoe trips I have taken in my lifetime. Those who start down a water course may be strangers at the beginning but almost invariably are close friends at the end . . . The greatest journey I've made has been with you, my Brethren, who were strangers at the start but warm and fast friends at the end . . . The value of our achievements will be for others to appraise. Other like journeys will be made by those who follow us, and we trust that they will leave these wilderness water courses as pure and unpolluted as we left those which we traversed.
Shortly after Douglas's resignation, the Chief invited Douglas's clerks to tea to discuss their future. As a retired Justice, Douglas would still have an office at the Court, and one clerk. His clerks wanted to play an active role, and Burger agreed to reassign them to other chambers—one to Stewart, another to Brennan, the third to White. One would remain available in case the retired Justice, who had flown to Portland, Oregon, and had entered a hospital there, returned to the Court.
On Monday, November 17, the seven Associate Justices changed their seats at the bench, in order of seniority. Brennan moved to Douglas's empty chair on Burger's right. Blackmun found himself near the press section for the first time. "God, now I can't sleep anymore," he joked.
Court was called to session, and Burger read the statement the Justices had written to Douglas. "Only when you made your decision known did we fully sense what that meant to us and to the Court," Burger read. "It goes without saying that we shall expect you to share our table as usual, for you remain our senior Justice emeritus."
That afternoon, the Justices met for conference. Ordinarily, they did not hold formal meetings on Monday, but because of Douglas's retirement there were administrative matters to clear up and cases left over from the previous week.
The Justices took their seats around the conference table. A chair had been placed at the opposite end of the table from the Chief where Douglas's wheelchair had been. As the senior Associate Justice, Brennan took it.
Everything was still a little tense.
Rehnquist, as junior Justice for four years and therefore technically the errand boy for the conference, would soon be messenger no longer.
The Justices had all read news reports that President Ford was being lobbied by his wife, Betty, to appoint a woman to the Court vacancy. Ford's Housing secretary, Carla Hills, was mentioned most frequently.
"Bill," one of the Justices now joked to Rehnquist, "when Carla comes you should be a gentleman and continue to answer the door."
"No way," Rehnquist shot back, adding a mild obscenity for emphasis. "Carla can answer the door for herself."
They all laughed. The tension eased.
They finally turned to the cases scheduled. One was a tax case that had been argued the morning Douglas retired (Foster Lumber Co. v. United States). After Burger spoke, one of the Justices told Brennan that, because he was now in Douglas's seat, Brennan would have to vote for the taxpayer as Douglas always had. Smiling, Brennan did exactly that.
Also pending was a challenge to the massive federal campaign law, which had been enacted in 1974 to reduce the influence of big money and large contributions in political campaigns (Buckley v. Vaieo). The law had four major provisions. It provided for the financing of presidential campaigns from federal tax revenue; imposed elaborate contribution and campaign-expenditure reporting in which contributors were publicly named; limited individual campaign contributions to $1,000; and set strict limits on campaign spending by candidates.
Senator James. L. Buckley, a conservative Republican from New York, and Eugene McCarthy, a liberal Democrat from Minnesota, had led the legal challenge, arguing that the limitations abridged free speech. The case presented more than twenty constitutional questions.
At conference, Burger accepted the challenger's arguments that the law, masquerading as a reform, really struck at the heart of First Amendment freedoms. To limit contributions and expenditures was to curtail political activity and speech. To force disclosure of contributors' names was a violation of their privacy and their right of political association. Public financing of presidential campaigns would open the door to governmental interference in the political process. Burger said he would vote to strike the entire law.
The other seven Justices seemed generally to favor major portions of the law, though each had a reservation about one or more of the provisions. But the majority upheld most of the law including the section on public financing of presidential campaigns.
The complexity of the case presented the Court with a major problem. The first disbursement of public money to the presidential candidates, about $6 million, was scheduled to take place January 2, only about six weeks away.
Several candidates, including Jimmy Carter, might have to drop out of the race if the Court did not act by then.
G
iven the urgency, Stewart suggested that a committee of Justices be formed to draft a per curiam opinion. At first hesitant, Burger finally agreed to let Stewart, Powell and White handle the case; they could assign sections to others as they saw fit.
Stewart liked the prospect of a management team controlling the opinion. In his view, that was already how the Court's business was, in fact, handled. It soon became clear, however, that White, a loner, was uncomfortable on the committee. Stewart and Powell wanted to strike the spending limits. White disagreed and withdrew from the committee. Brennan joined in his place.
Stewart, Powell and Brennan divided the work. Stewart took the two longest sections of the opinion, upholding the limits on individual contributions, but striking the limits on what candidates could spend. Powell took the section upholding the public-disclosure and reporting requirements. Brennan took the part upholding the public financing of presidential campaigns. Though he was writing his own opinion on the case, Rehnquist agreed to write a section on the commission created to enforce the law. Despite his stated desire to strike the entire law, Burger was given the preamble and statement of facts.
Douglas returned to Washington at the end of November. When he came to his chambers, he buzzed for one of his clerks. No one came. He pushed the buzzer again. Still no one. It was strange. They always came running. He pushed longer and harder on the buzzer.
Marty Bagby, Douglas's senior secretary, finally appeared at the door.
"Where are the clerks?" Douglas angrily demanded.
"There are no clerks," she stammered. The Chief Justice had reassigned his clerks while he was gone.
Douglas glared at her. No clerks? He was a Justice. He had work to do.
When he learned where one of the clerks had been assigned, Douglas summoned him to his office. He demanded that the clerk get to work for him right away.
Douglas began coming to work at the Court nearly every day. He circulated memorandums and tried to stay in the flow of Court business. He knew that there were provisions in the law for a retired Justice like himself to still work on lower court cases. Tom Clark, who had retired in 1967, had become a valuable Court utility man, pinch-hitting as a district court and appeals court judge.
Douglas had been a full member of the Court when oral argument was heard on the campaign finance law. He saw no reason not to participate in the decision, since his replacement would not be able to take part. He decided to write an opinion.
The other Justices were embarrassed by Douglas's attempt to remain a full member of the Court. Blackmun seemed to avert his eyes as he passed Douglas's open office door. When any of the others paid their rare visits, Douglas invariably inquired about the campaign finance case. What progress was being made?
Other times Douglas appeared disoriented. Once Datcher left him sitting in his wheelchair in the middle of the hallway. He sat alone, quiet, helpless. White passed by and said hello. There was no response. White moved closer to Douglas. "It's me, Bryon," White said, bringing his face close to Douglas's. Still Douglas gave no reply.
Burger suggested in a memo to Douglas that he would find Earl Warren's old chambers more "commodious" than his own. But in Douglas's view Warren's chambers were largely ceremonial. The two tiny rooms adjoining the main room were not large enough to house a full staff, much less a working Justice. Douglas replied in a memo to the Chief. The chambers he currently occupied were sufficiently "commodious," he said, repeating the word "commodious" several times. "This will let him know I'm still around," he told a clerk.
Douglas had the law on retired Justices researched. When Franklin Roosevelt tried to pack the Supreme Court in 1937, he proposed a law allowing the President to appoint a new member to the Supreme Court whenever a sitting Justice reached the age of seventy. The plan failed, but a law passed providing for the retirement of Justices. It specified that any Justice who had served ten years or more and had reached the age of seventy "may retain his office but retire from regular active service." A retired Justice could continue to receive his salary and, under the law, might be given judicial duties by the Chief Justice "when designated and assigned."
Douglas decided to designate and assign himself.
By the end of December, the committee per curiam opinion in the campaign finance case was almost ready to come down, but Burger had still not completed the preamble.
Powell was concerned about the delay. Both The New York Times and The Washington Post, which Powell followed closely, had pointed out editorially the need for a decision before the $6 million was due to be paid. Burger was just as unhappy. The committee per curiam was terrible. The Chief circulated a memo saying the Court would regret the decision to uphold three of the four major parts of the act. Eventually, he watered down the memo into a dissent. Nevertheless, the Chief had drafted a preamble for the committee, though his own negative conclusions about the law dominated his discussion.
When Brennan received the preamble, he had a clerk edit it extensively. There was little time, but Brennan realized he could not return the revised version to Burger with corrections and edits in the clerk's handwriting. So he reworked them in his own handwriting.
Although Douglas also continued work on the campaign finance case, he found that he was being ignored. In the past, the other Justices had treated his memos and drafts with respect, and had sent him their drafts and memos.
Now they were acting as if he weren't there. He wrote a memorandum to the Conference from "Mr. Justice Douglas." He began, "I discuss in this memorandum the merits of the Federal Election Campaign Act cases. I also discuss aspects of the status of a retired justice"
Douglas recounted the history of the law that provided for retired Justices, and branded the effort to exclude him "much more mischevious [sic] than the Roosevelt [Court packing] plan. It tends to denigrate Associate Justices who 'retire,' " Douglas said. "Beyond that is the mischief in selecting the occasion when a Justice will be allowed to hear and decide cases." Calling his exclusion "a practice in politics," Douglas said, "The Court is the last place for political maneuvering."
He contended that by trying to participate in the campaign finance case, he was just doing his job, proposing nothing new or radical. "The break with tradition would come if for some reason, best known to a conference, a justice who had participated in bringing a case here and had done all the work on the case, including hearing oral argument, could be eased out of a final and ultimate action on the case."
Turning to the case, Douglas argued that a campaign finance law that provided public money to candidates with large popular support helped to preserve the party in power. He had substantial doubts about both the spending and contribution limits.
History shows that financial power and political power eventually merge and unite to do their work together. . . . The federal bureaucracy at the present time is effectively under the control of the corporate and moneyed interests of the nation. A new party formed to oust the hold that the corporate and financial interests have is presently by the terms of this act unqualified to get a dime.
The memo ran thirteen pages. Douglas told his part-time clerk that he intended to publish it as a dissent when the campaign finance case was announced. The clerk alerted Stewart, White and Brennan. Finally Brennan agreed to speak with Douglas. Fortas also came to talk to him. Later Fortas told a clerk that if he were Chief Justice and Douglas tried to come back and sit on a case, he would send Douglas a memo saying: "Dear Bill, You're off the Court so forget about it."
But Douglas would not listen to anyone. He ordered his clerk to take the draft opinion to the printer and circulate it to the other Justices. The clerk stalled, but Douglas insisted and got it printed.
The clerk later took one copy around to each chamber.
Stewart read the memo. It was classic Douglas—blowing the whistle on the "mischief" of his colleagues and on the "corporate and moneyed interests." But it had none of the polish or punch of the old Douglas dissents, only the frenzy.
> "Bill is like an old firehouse dog," Burger told a clerk,
"too old to run along with the trucks, but his ears prick up just the same."
The conference finally set January 30 for the announcement of the decision. Learning of the date, Douglas summoned his clerk and told him to get the opinion out.
"I won't do it," the clerk replied.
Red-faced, Douglas stared at him. "You are a traitor," he said, his pale-blue eyes rendering an icy judgment. "I will get it down there myself."
The clerk left the room and sent a note to White: "The tenth member of the Court wants to release his opinion."
Reluctantly, the conference knew it must mobilize immediately. Court officials were told to ignore Douglas's requests for help.
Thwarted at every turn, Douglas finally gave up.
The Court opinion, with separate concurrences and dissents by everyone except Brennan, Stewart and Powell was a book-length 237 pages. Brennan could not recall a single opinion that had been longer or heavier, and he joked with Burger in the robing room about who should carry it out. The official summary reported the decision as the work of an eight-man court.