The Brethren

by Bob Woodward

  "The Chief's asinine memos," one clerk answered,

  Rehnquist laughed heartily.

  The Right to Life movement had developed tremendous momentum since Blackmun's 1973 abortion decision. Anti-abortion demonstrators gathered periodically at the Court, and some sent Blackmun roses on the anniversary of the decision. Blackmun, puzzled, nervous and grim, stood by his office window and watched the demonstrations. He felt that so much of the opposition reflected a misunderstanding of the Court's opinion and purpose.

  Blackmun publicly defended the abortion decision, telling one audience that people "forget that the Court functions only on constitutional principles. All we were deciding was a constitutional issue, not a philosophical one . . .

  "A lot of people have personalized this, thinking it's the work of the devil, to wit, me—forgetting there were seven votes for that opinion."

  Yet, Blackmun knew there was considerable unhappiness with the abortion decision within the Court. The original dissenters, Rehnquist and White, kept up a steady drumbeat. In one memo for the cert pool prepared by one of White's clerks, the doctor in an abortion case was called a "fetus killer." Blackmun was furious. Rehnquist told college audiences that the Court might some day overturn the decision.

  Since the 1973 decision, Burger had gone back to his original anti-abortion position, and Powell seemed shaky. While Douglas was on the Court, Blackmun was virtually certain in new abortion cases to have five solid votes to follow the 1973 decision. Douglas's resignation left the abortion issue in doubt. Blackmun did not believe that the decision would be overruled. But the 1973 decision had left some major questions open. Many states had enacted new laws that had the practical effect of restricting abortions.

  A 1974 Missouri law put a number of limitations on abortions including requirements that:

  · an unmarried woman under the age of eighteen obtain her parents' consent before an abortion.

  a married woman obtain her husband's written consent.

  saline amniocentesis, the most common abortion method, not be used after twelve weeks of pregnancy.*

  In the previous term, the Court had considered a case (Planned Parenthood v. Danforth) that challenged these provisions of the Missouri law. At first, Blackmun had insisted that the Court summarily—without oral argument—reverse the lower-court opinion upholding the Missouri law. A summary reversal would be the fastest and most conclusive way to tell the lower court that its decision was wrong, and that prior decisions clearly predetermined the opposite result. Summary reversal was to tell the lower court that it had clearly misread a Supreme Court opinion. A summary opinion merely called the lower court's attention to the previous, controlling opinion.

  Blackmun had written a thirty-page per curiam summary reversal that said that the states could do little to regulate abortions. But when it circulated, Burger, Powell, Rehnquist and White refused to join. With Douglas's illness, and the informal agreement nullifying his vote when it was the fifth, Blackmun had only four votes. That meant the case would have to be heard during the 1975-76 term. But if the Court announced that it was going to hear oral argument, the anti-abortion forces would mobilize. Blackmun and Brennan, in particular, did not want to give those forces the summer to mount an attack. They devised a plan. The Court would not announce that it would hear the case until the beginning of the next term. The announcement that the case would be heard had been made on October 6, 1975.

  Later in the year, at conference on the case, Blackmun got five votes to strike each of the controversial provisions of the Missouri law.** Stewart was unhappy about going

  * The method involves inserting a needle into the womb and injecting a saline solution, which induces labor and a miscarriage.

  ** Powell voted with Blackmun, Brennan, Marshall and Stewart to strike the requirement of parental consent and the ban on the saline abortion method. Stevens joined Rehnquist, White and Burger in dissent on those issues. But Stevens joined the liberals as a sixth vote on striking the provision requiring the husband's consent.

  along with what he felt were further analytical errors, but since he had voted for the original 1973 decision, he saw no alternative on this one. "This is one of those cases where I'll have to hold my nose and jump," he told his clerks.

  The conference also considered another abortion case (Singleton v. Wulff) that raised the question of whether doctors had standing to bring suit challenging a Missouri state law that prevented poor women from obtaining federally funded abortions. The first vote at conference was 5 to 4 to grant doctors standing for such lawsuits. The majority was an unusual combination of Brennan, Marshall, White, Stevens and, to nearly everyone's surprise, Burger. But again to everyone's surprise, Blackmun voted to deny standing. He told others that he was bothered by law journal articles criticizing his 1973 decision for conferring more rights on doctors performing abortions than on women receiving them. Burger then decided to switch his vote, making it 5 to 4 to deny standing to doctors.

  Stewart, who had voted to deny standing at first, said he now wanted to change his vote to grant standing. That made it 5 to 4 again in favor of standing. At that point Burger said he was not sure of his position. However, he told Brennan, the senior member of the latest majority, to assign the opinion. Brennan also was to assign a third abortion case (Bellotti v. Baird), which involved a remand to a lower court. It gave him three abortion cases, his most important assignment opportunity of the term. His clerks urged him to give all three cases to Marshall. Brennan balked. Important bridges had been built to Blackmun, and they were based more on the abortion issue than on any other. Blackmun would surely want the two cases in which he was in the majority. The problem remained that Blackmun was in the minority on the third dealing with doctors' standing. Clearly he could not write the majority opinion on that one. Brennan telephoned Blackmun to explain that he would have wanted to give him all three abortion cases, but that his minority position on doctors' standing made it impossible.

  "I can write it that way," Blackmun replied.

  Brennan was startled, but he was not about to question Blackmun's decision to switch his vote. Without hesitation,

  Brennan assigned him all three cases, hoping that he would remain a solid vote in future abortion fights.

  Blackmun took months before circulating his first drafts in the three cases. Brennan went through the drafts thoroughly and had his clerks list dozens of suggested changes. But, before he proposed them, he joined Blackmun's drafts.

  White thought the Blackmun drafts were dreadful. Blackmun's 1973 abortion opinion had subjected the Court to a great deal of ridicule. It was as if Blackmun had developed a special constitutional rule for handling medical questions. White dubbed it Blackmun's "medical question doctrine." It seemed to hold that, under the Constitution, doctors, rather than the Court, had the final authority on certain medical-legal questions. White found that notion ludicrous. Blackmun had created another "political questions" doctrine. The notion that the Court couldn't meddle in the internal affairs of the other branches of government had been broadened to include the medical profession.

  White was particularly incensed about the section of the Blackmun draft on saline abortions. Blackmun had written that there was no "evidence" that the method was unsafe. What Blackmun meant, White felt, was that he had found no "medical evidence," based on his own independent research of medical texts and journals. However, "evidence" had been introduced in the lower court showing that saline abortions were less safe than other methods of abortion. That, White felt, was the "evidence" on which the Supreme Court should make its decision. Blackmun appeared to have appointed himself—and, in turn, the Court—an unofficial medical board. To White, it was ridiculous. The normal rules of law and procedure had been abandoned. The Court could not go around making determinations on medical "facts," and substituting those facts for the ones that had been properly developed in the trial court. White wrote a strong dissent. For his part, Blackmun was edgy about the abortion c
ases. He dropped a load of books on a desk one day and blurted out: "Fetuses!" Though he finally got five votes for each major part of his opinions, only Brennan and Marshall joined him in all the cases.

  Blackmun's confidence was growing, however, in other ways. In a civil rights suit against the Philadelphia police department alleging police brutality (Rizzo v. Goode), Rehnquist held together a five-man majority including Stewart, White, Powell and Burger. His majority opinion said that the lower federal court had improperly intervened to control the handling of citizen complaints against police. But Blackmun, normally a states' rights regular, was struck by how well the alleged pattern of police abuse had been documented in the suit and voted with Brennan and Marshall. Brennan was pleased, and assigned Blackmun to write a dissent for all three of them. When Blackmun sent his draft to Brennan, Brennan pronounced it "splendid."

  Shortly thereafter, Blackmun found himself on an airplane flight with William Kunstler, a leading radical activist lawyer. Kunstler threw his arms around the Justice, welcoming him to the company of the "liberals and the enlightened." Though it was only a vote with the minority in Rizzo, Kunstler congratulated him, expressing the hope that Blackmun would free himself from Burger's influence more regularly. Blackmun replied that he hoped to join Brennan and Marshall even more often in the future. Blackmun later told his clerks of Kunstler's big "bear hug," and recalled that a conservative woman judge was with them at the time. "I don't know what she thought," he mused. The clerks were struck by Blackmun's delight at praise from the radical left. As far as Brennan was concerned, the term had begun on a bad note and had gone down hill. At the first regular Friday conference, Burger presented a relatively insignificant case (Thermtron Products Inc. v. Hermansdorfer), in which a federal judge with a crowded docket of cases had sent this particular case back to state courts because he had no time to hear it. Burger agreed with the judge's action but only Stewart and Rehnquist were on his side. As senior Justice in the majority, Brennan decided to assign the case to White, who had shown a particular interest in it. "Bryon, why don't you take this one," he said. "No," Burger interrupted, "I haven't voted. I said, 'I would vote to affirm.'" White challenged him. Burger had voted. But that was not his official, final vote, Burger said. He noted that the formal conference procedure was to speak in order from senior to junior, but then to vote in the opposite order, junior to senior. The vote sheets proved his point, he said, since the Justices were listed from junior to senior. He was listed last and would vote last.

  Brennan realized that the Chief was technically correct. That had been the tradition. But the formality had been discarded years before. Each Justice stated his argument and position, saying "I would vote ..." as he finished to avoid the necessity of a separate voting round.

  The other Justices agreed. The formality had long been abandoned. Burger had voted in this case. Okay, the Chief said. But he could still change his vote after discussion.

  No one disagreed with that. Tradition held that votes could change right up to the moment a decision was announced. So Burger changed his vote and assigned the case to White anyhow. Eventually, he changed again and joined Rehnquist's dissent.

  Brennan had always resented Burger's maneuvering. Now, as the senior Associate Justice, Brennan was the most directly affected by the Chief's abuses of assignment power. He estimated that Burger tried to manipulate an assignment once in each conference. The Chief would pass, which he called "reserving" his vote, or he would switch his vote after the other Justices had cast theirs. Brennan called these "phony votes." Sometimes Burger just withheld his vote and then later assigned the case. Brennan told his clerks that when Earl Warren was Chief, on the few occasions he passed on a case he usually asked the senior Justice in the majority to assign it Warren, Brennan said, played fair.

  As Brennan became more upset about Burger and the general direction of the Court's decisions, his clerks became a force of their own. Brennan infected them with suspicion, and they, in turn, fed Brennan's distrust of the Chief. The clerks also began waging a private, rear-guard war against the Chief. With Douglas gone, they understood that Brennan would have to be the whistle blower. They became a pocket of underground resistance with strong ties to the clerks in most of the other chambers. They constantly ridiculed Burger, even at morning coffee in Brennan's presence. Burger was "His Eminence," or "the donut," a name that grew out of a joke the previous term: What is white on top and empty in the center? Brennan's clerks worked in blue jeans, knowing Burger preferred coats and ties, and filled the halls with cigar smoke, hoping it would filter into Burger's chambers. They made fun of his memoranda, mocked his style, and placed cardboard signs on their desks with outrageous quotes from his memos and opinions in hopes that the Chief would notice them when he visited Brennan's chambers.

  A Burger draft opinion once mistakenly referred to the Chiefs old foe, United States Court of Appeals Chief Judge David Bazelon, as "Chief Justice." A memo quickly came around from Burger's chambers blaming the mistake on a printer's error. Subsequently, whenever a Burger opinion arrived which Brennan's clerks found particularly egregious they would call a Burger clerk to ask whether it was a printer's error.

  For Brennan's clerks, each lost case was the falling of the citadel, a catastrophe. One Brennan clerk was frequently directed to use what Brennan called his "acid pen." As a result, Brennan's dissents were often written in scathing and petulant prose. Many of the Justices and clerks believed that Brennan was overplaying his hand. Increasingly, his opinions seemed designed not to persuade others but to irritate Burger. Brennan appeared to have given up trying to do a careful, scholarly job. Near the end of the term, the Court heard a case (Sa-kraida v. Ag Pro, Inc.) involving a patent dispute over a water flush system designed to remove cow manure from the floor of dairy barns. Referred to around the Court as the "cow shit case," it was of no significance, not even posing interesting questions in the arcane field of patent law. The conference was unanimous that there was no patent violation. The case would ordinarily go to the most junior Justice, Stevens. Instead, Burger assigned the "cow shit case" to Brennan.

  Brennan was insulted, but he refused to pass along the humiliation to his clerks. He did all the work on the five-page opinion himself.

  Later, when an insignificant Court of Claims case (United States v. Hopkins) was argued, Brennan decided to vote whichever way would leave him in the minority, "so that bastard can't give me cases like this."

  At conference on Friday, March 5, Burger summed up the facts in a case (Chandler v. Roudebush) involving Jewell Chandler, a seventeen-year-old black woman employed by the Veterans Administration, who alleged that she had been denied a promotion because of racial and sexual discrimination. After exhausting standard complaint procedures in the Veterans Administration and the Civil Service Commission with no success, Chandler had filed suit in federal court. The district court dismissed her suit, relying exclusively on the evidence developed at the agency hearings. Chandler appealed, claiming that she should be able to introduce new evidence at a federal trial.

  Burger noted that four appeals courts had ruled that federal employees in such suits were entitled to a full trial while three others had said they were not. Unsure of his position, the Chief passed.

  Brennan sided with Chandler. Federal employees were entitled by the same recourse as those from private industry. He was joined by three others.

  Powell wasn't sure that Congress had ever intended to allow a completely new federal court trial. He and three other Justices voted against Chandler, creating a 4-to-4 standoff.

  The Chief finally decided to cast his vote with Powell, tipping the balance 5 to 4 against Chandler. The next morning, the clerk in Powell's chambers who was working on the case examined the record. It was clear from the legislative history that Congress had not intended to deny Chandler or any federal employee access to federal courts. The clerk typed a memo for Powell, and Powell decided to change his vote. He wanted to inform Burger immediately, sin
ce it would change the outcome, so he called the Chief that morning. On Monday, he informed the rest of the conference, attaching his clerk's memo.

  When he learned of Powell's switch, Burger reconsidered his own position. With the vote now 5 to 4 the other way, he was now in the minority and unable to assign. He decided to switch, and within hours of Powell's memo, sent a memo of his own to the conference. "Lewis's memo convinces me, however irrational it was, that Congress provided" this access to the federal courts. Now the new majority was 6 to 3 in favor of Chandler. The Chief promptly assigned the case to Stewart,

  The following day the Chief sent around another memo. He was switching again. He had found new information that caused him to return to his original position. Brennan was free to assign the case. Brennan felt, however, that since Burger had already assigned the majority to Stewart, he could not reassign it to someone else.

  Powell read the Burger memo and wondered why the Chief was constantly changing his positions. "I don't understand this," he said, shaking his head. Within weeks, all the other Justices, except Burger, were persuaded by Stewart's draft and joined his opinion. It was now 8 to i in favor of Chandler. Burger was alone in the minority. Before the case was announced, he switched again, joining Stewart's majority. On June i, the Court announced a unanimous decision in favor of Chandler. Burger had voted five times—a pass, twice against Chandler and twice for her.