The Brethren

by Bob Woodward

  So with the four Nixon appointees presumably ready, Stevens, the new Justice, would be the key.

  At the Friday, March 5, conference, the Chief turned to the National League of Cities case. For the time being, he said, he would pass. Brennan stuck by his vote of the previous term. They were clearly bound by the Wirtz precedent, which dealt with the same issue.

  Stewart announced that he, too, would stay with his vote of the previous term upholding Wirtz. He didn't like it any more now than he did when he dissented in 1968, he said. "But if I'm the fifth vote, I have to go the other way. . . ." If Stevens voted to overrule Wirtz, Stewart was prepared to be the sixth vote. White and Marshall agreed that the Wirtz precedent controlled this case. That made four votes. Blackmun wondered if there was some way to distinguish this ease from Wirtz so that they could avoid the precedent. Powell and Rehnquist took up where Blackmun left off. If they could get around Wirtz without explicitly overruling it, so as not to offend Stewart's strict sense of precedent, they could strike down this particular law.

  Stevens, however, stated that he felt compelled to uphold the Wirtz precedent. The only distinction between the two cases was that Wirtz involved minimum wages for hospital and school employees whereas National League of Cities concerned policemen and firemen. He could see no constitutional difference between hospital workers and firemen. Since Stevens would not be the fifth vote to strike, Stewart would not strike either. That was five votes to uphold.

  Burger told Brennan, as the senior Justice in the majority, to go ahead and assign the case. Suddenly, White interrupted. He was on the winning side, but he was not satisfied! He said he counted five votes—including Stewart's—for striking the statute.

  "I understand why you're voting that way, Potter," White began in the softest of whispers, addressing Stewart, "but I think it is kind of a chickenshit position. It keeps the jurisprudence of the Court tied up for reasons that are not on the public record."

  Flustered and irritated, Stewart considered White's challenge. "I think you are right, I'll vote the other way," he said. But he was not going to vote for some underhanded formula that overruled Wirtz without really saying so. It would have to be done explicitly.

  That was fine with Rehnquist. Powell and the Chief agreed. Blackmun was hesitant, but he said he might vote to overrule Wirtz if the opinion was carefully written.

  With the vote now 5 to 4 the other way, Burger took back the assignment from Brennan and assigned the case to Rehnquist.

  Brennan was beside himself. Before his eyes, the clash of two legal machismos. White's and Stewart's, had produced a major reversal of the thirty-five years of law. What was White trying to do? Brennan wondered. How could Stewart be so susceptible to that kind of challenge? Brennan left the conference in a rage. "White should have kept his mouth shut!" he fumed to his clerks.

  Rehnquist circulated his first draft by the end of March. He had found a footnote in the majority opinion on the Fry decision, the case in which he had been the lone dissenter the year before, that said "Congress may not exercise power in a fashion that impairs the states' integrity or their ability to function effectively. . . ."

  Citing this footnote, Rehnquist wrote that the increased burden of paying the minimum wage to the 3.4 million additional state employees might threaten the survival or sovereignty of the states. Rehnquist's home state of Arizona, for example, estimated that the added cost would be $2.5 million. Other states, claiming that they would be hard pressed to meet the added financial burden, said they would have to curtail affirmative action programs and summer employment for teen-agers.

  When Stevens received his copy of Rehnquist's draft, he took it home and went over it carefully. Rarely, in five years on the appeals court, had he seen such a misuse of precedents. Rehnquist "can't do this," he told a clerk the next morning.

  Stevens liked Rehnquist, but he saw it as his job to challenge Rehnquist's disingenuous scholarship. He drafted a long "Dear Bill" memo at his desk. Unsure whether the memo ought to be a dissent or just a personal note, Stevens finally decided to circulate it to the conference. He had not consulted Brennan, the senior dissenter, and he was a little apprehensive that his memo was premature. But when Brennan received it, he was elated. The memo proved conclusively that Stevens was no slouch. He had raised more questions about Rehnquist's draft than even Brennan's most suspicious clerk had. Nevertheless, Brennan decided to write a dissent of his own. Each of his three clerks was so anxious to prepare the first draft that they held a lottery to see who would write it.

  * * *

  Stewart's clerks were crestfallen at his 180-degree flip, which seemed to be the result of White's dare at conference. When they received Steven's memo, all four went into Stewart's office. If the federal-state conflict was to be confronted, they argued, this surely was not the case. This sort of states' rights argument had been discarded years before.

  Stewart disagreed.

  The clerks returned to their office and took the Rehnquist draft apart line by line. They returned to their boss. He appreciated their work, Stewart told them. Their arguments were powerful and well presented. But he was not going to change his mind. "I'm still going to vote with Rehnquist," he said.

  Rehnquist feared, however, that Stevens's memo was having an impact in other chambers. His draft had not yet been joined by a single other Justice. Most ominously, it seemed that Blackmun was still very much up in the air. Rehnquist circulated another, slightly altered draft. Although he refused to back down on a single major point, he revised his citations of precedents.

  Brennan saw the case as an important test of Rehnquist's influence in the Court. If the Court was to begin diminishing federal power, it would be a blow to liberalism. State power was almost invariably conservative.

  Brennan focused on the two weakest votes, Blackmun and Stewart. He talked to Stewart's clerks, who made another run at their boss. Once more, Stewart's clerks told him, his long-standing reluctance to be the fifth vote in overruling precedent was sound. This important tenet should not be sacrificed; it was part of his strength on the Court. Stewart, however, seemed no longer worried about being the fifth vote. In fact, he contended, this actually worked to his advantage. Rehnquist could extend states' rights only as far as Stewart would let him. The clerks gave up. Stewart was behaving as if he were a one-man Congress, they felt.

  Brennan had not given up. He had his most acerbic clerk retouch his dissent, charging that Rehnquist's draft was a "patent usurpation" of congressional power. The author had manufactured an "abstraction" with a "pernicious" consequence. The legal reasoning and scholarship were "awkward" and "out of context." The opinion was "devoid of meaningful content," "alarming," "startling," "cavalier," "ominous," "mischievous," and a "catastrophic judicial body blow at Congress's power." And he added: "I cannot recall another instance in the Court's history when the reasoning of so many decisions covering so long a span of time had been discarded roughshod."

  Brennan gave the dissent a final perusal and circulated it to the other chambers. On Blackmun's copy, he wrote a personal note asking if there was anything that he could do to get his vote.

  Stevens was amazed at the strident tone of Brennan's dissent. It was both a legal and personal assault, and it was altogether too much for Stevens. There was no way he could join, particularly as a Justice so new to the Court. Stevens wanted to build relationships with all factions, not impair them permanently. Further, Brennan was drawing more attention to the case than it might naturally receive. Rehnquist wasn't claiming an earthshaking victory. Why announce one for him?

  Stevens wrote Brennan a personal note, explaining in a congratulatory tone that while his dissent was "powerful" —underlining the word—he just wasn't going to be able to join. He did not state his reasons. He thought Brennan would understand.

  Marshall and White joined the Brennan dissent.

  By June, Rehnquist had four votes including his own, and Blackmun remained the question mark. Blackmun had read
both Rehnquist's and Brennan's efforts. Overwritten sarcasm seldom appealed to him and, in his view, Brennan was once again crying wolf. Blackmun did not think this opinion was a "body blow" to the power of Congress. But he was still unhappy at the idea of overruling the Wirtz case. One June ro, at a case status conference, Blackmun announced that he was "terribly troubled" by the case. He was going to attend his daughter's graduation and would not think about the case until he got back. A week later, on June 17, he told his clerk that he had still not made a decision. "It is impossible for me to look at it in depth, with all the other things I have to do," he said.

  After ruminating on it, Blackmun toyed with concurring in the result only, thus denying Rehnquist his fifth vote to make it a binding precedent. He finally decided to join

  Rehnquist's opinion, but to limit its effect by publishing his own separate opinion. It turned out to be a single paragraph: "Although I am not untroubled by certain possible implications of the Court's opinion—some of them suggested by the dissents—I do not read the opinion so despairingly as does my Brother Brennan." Although Rehnquist's opinion flatly forbade any federal intervention, Blackmun said, in future cases, such as environmental law, where the federal government had a greater interest, federal intervention would be constitutional. But since Blackmun's one-paragraph clarification gave the Rehnquist opinion full precedental value, it was extremely disappointing to each of the dissenters. Stevens, in part, blamed Brennan, whose shrill dissent, he felt, had pushed Blackmun into the majority. Brennan and Marshall blamed White for the whole fiasco, since it was his challenge to Stewart that had triggered the switch.

  As the term progressed, Rehnquist and Stewart continued to grow closer, both personally and professionally. Their relationship affected the alignment of the Court. "Excellent," was the way Stewart frequently described Rehnquist. Stewart believed in meritocracy, and Rehnquist clearly had proved that he belonged on the Court.

  During the term, Rehnquist finally seemed to have reached cruising speed. At fifty-one he was still the youngest member of the Court; his energy level was at its peak. As in previous years, Rehnquist assumed more than his share of routine work and research for the conference, volunteering to take on extra tasks, doing nearly a dozen unsigned per curiams. But more significantly, Rehnquist seemed, in the view of several clerks, to have made a conscious decision to become a more effective Justice. No longer a loner, he frequently appeared able to influence Powell, White and Stewart.

  Stewart viewed Rehnquist as a "team player," a part of the group in the center of the Court, even though he usually wound up with the conservative bloc. The Justices in the center looked to Rehnquist for his analyses more than for his votes. His analyses were at times important, well-reasoned and sophisticated. His dissents sometimes forced the majority to address new issues or to narrow its focus.

  Stewart knew that Rehnquist was a clever tactician. He often drafted extreme overstatements and then gladly cut out a lot in negotiation, winding up with the core of his position intact. Rehnquist could leave the others with a sense that they had won more than they had lost. In an employment discrimination case (Fitzpatrick v. Bitzer), Rehnquist had the assignment for a nearly unanimous Court. His first draft spelled out his most extreme view of the Fourteenth Amendment. It was, he said, meant only as a solution to the problems of slavery, not as a license to the Court to right every wrong.

  One of Stewart's clerks remarked that Rehnquist was "going for the home run."

  Stewart went to Rehnquist. Nice try, Stewart told him, but the breadth of the Fourteenth Amendment had been settled more than fifty years before.

  Rehnquist took the offending section out and won every vote.

  Stewart's clerks were not entirely happy about the way their boss seemed to have fallen under Rehnquist's spell. In one case upholding a ban on political campaigning on a military base (Greer v. Spock), Stewart obliterated his own 1972 precedent (Flower v. U.S.) with the words: "Flower ... looks in precisely the opposite direction."

  Such a declaration that two very similar cases were different was a typical Rehnquist maneuver. Afterward, when some of Rehnquist's more inexplicable decisions came down, Stewart's clerks would snipe: "Flower looks the other way."

  Rehnquist was in turn contemptuous of Brennan's opinions. "Brennan's done another pretzel job," he once remarked after reading what he considered to be a standard Brennan opinion, bending the facts or law to suit his purposes. Brennan was not, in his view, a significant force on the Court, and Marshall was even less so. In a prison case (Kerr v. United States District Court for the Northern District of California), Burger asked Rehnquist and Marshall to work out a mutual position. Technically, Marshall had the assignment, but Rehnquist spoke with Burger's authority in negotiating a draft. When Marshall resisted Rehnquist's suggestions, Rehnquist bluntly spelled out the realities of the situation to one of Marshall's clerks. "Tell Thurgood that this is my opinion and not his, but just coming out under his name," he said.

  Rehnquist realized the importance of his relationship with Burger. Though they agreed on basic principles, Rehnquist took extra steps to ensure that he stayed on the Chief's good side. He joined all but one of Burger's majority opinions during the term, even though he disagreed with several.

  Rehnquist was aware of Burger's faults, his technical carelessness and his frequent mistakes. In the important cases, Rehnquist tried to straighten him out. It was a delicate undertaking. Phoning Burger, or approaching him personally, he made it a point to couch his correction as a new footnote, or a specific addition or deletion—something that would improve Burger's work. "Hey, Chief, don't you think this makes more sense if . . . ?" Rehnquist would ask, implying that the original was cogent even when it was not That was as confrontational as Rehnquist wanted to get.

  Once, one of Rehnquist's clerks brought him a particularly unworkmanlike Burger opinion. "Look what he's done," the clerk remarked sarcastically. Rehnquist read it, shook his head, frowned, sighed and fretted. Careful to pick his shots, he was reluctant to call Burger on another opinion.

  Rehnquist was remarkably unstuffy. He thought it funny that there was a Rehnquist Club at Harvard Law School in which the leader was called the "Grand Rehnquisitor," and a weekly discussion called the "Rehnquisition." As the junior Justice during the first half of the term, he was in charge of the Court's annual Christmas Party. He approved a skit his clerks had prepared for the party; it was entitled, The Making of a Justice 1976. It was supposed to deal with President Ford's dilemma in choosing a successor to Douglas. A clerk wearing a football helmet played Ford listening to the lobbying of various political interest groups. A chorus of five clerks sang the parts of the interest groups.

  Politicians. Pack the Court with hacks and cronies

  Conservatives. Weed out all the liberal phonies

  Liberals. Save Miranda, save Miranda, save Miranda from the Nixon Four!

  Burger did not share the others' laughter.

  The next day, December 16, Burger sent Rehnquist a note: "The performance of The Supreme Court Choral Group' at our Christmas Party was excellent and on behalf of the justices, I thank you. Happy New Year."

  The skit was not mentioned. But in January, when the next assignment sheet came around, Rehnquist got only one case from Burger—an insignificant Indian tax dispute in Montana (Moe v. Tribes of the Flathead Reservation).

  Rehnquist had nothing but contempt for Indian cases. Traditionally, Douglas had done more than his share. He had been the Court's expert. With his own Arizona background, Rehnquist was the logical replacement, but, he suspected that the assignment was Burger's way of telling him what he really thought of the Christmas party. Never one to let an opportunity pass, Rehnquist turned an opinion that was in favor of the Indians into an opinion that indicated that in most cases they would lose. It wiped away decades of Douglas's opinions.

  Stewart appreciated Rehnquist's sense of humor. At one particularly dull moment at conference, after Burger and Blackmun h
ad performed predictably, Stewart passed a note to Rehnquist on which he had drawn two tombstones. On Burger's tombstone, Stewart had inscribed: "I'll Pass for The Moment." On Blackmun's, he had written: "I Hope The Opinion Can Be Narrowly Written." Rehnquist laughed out loud.

  Ignoring tradition, Rehnquist attended one conference in a Court softball team T-shirt. He also did little to dispel the impression that he was drinking straight Scotch or bourbon at his desk, even though the amber liquid in the glass was really his favorite beverage, apple juice.

  Rehnquist's affability did not stop with his colleagues. He paid attention to all the Court personnel, addressing even the humblest by name. When the police at the Court had their chairs taken away from their duty stations as punishment for letting a tourist wander into a restricted area, a delegation came to Rehnquist for help. The chairs were soon returned to the posts.

  He had an equally easy relationship with his clerks. By the end of the term, Rehnquist's clerks felt comfortable speaking openly about Burger's faults. Rehnquist listened and occasionally defended the Chief. He called the bad mouthing a "sport for law clerks," but it was clear that the subject was not off limits. He once asked a group of clerks what surprised them the most about the Court.