The Brethren

by Bob Woodward

  At conference, Burger led off with a terse "I would vote to deny." Unsure as to what was up, Brennan said simply, "Deny." Around the table there was not a single vote to take the case. In one minute the Court had disposed of the term's potentially most controversial case.

  By letting two conflicting lower-court decisions on busing stand, the Court revealed its uncertainty on the issue.

  Stevens's first half-term on the Court left him disappointed and frustrated. He was distressed by the amount of paperwork. For the first month he tried to read every cert petition himself, as Brennan did. Then he gave in and accepted his clerks' cert memos. At conference, he spoke as forcefully and persuasively as he could. But as the junior Justice, he spoke last, the least effective position to be in. Burger always seemed impatient by the time discussion got around to Stevens, and the others had usually made up their minds. Stevens therefore spoke up more during oral argument, trying to get his points across before conference. He also circulated detailed memos and presented each of the others with his theories.

  Stewart, in particular, welcomed Stevens's fresh approach, his intelligence and his willingness to work. He termed Stevens "first rate." Stevens did not argue grand theory or react with knee-jerk positions. His positions and his votes were as unpredictable as Douglas's had been predictable. Stevens was as meticulous as Blackmun, but not as insecure. He was as exuberant and outgoing as Rehnquist, but Stewart found his views more acceptable. He was as ready to debate as White, but not belligerent. There was no telling where he would go, nor was he afraid of changing his mind. Stewart began calling him the "wild card." He was an available vote for anyone from Brennan to Rehnquist. Stewart welcomed him as a member of the center—"the group," as he called it.

  White took a less charitable view of Stevens. He felt, at times, that Stevens was erratic. Picking on Stewart's nickname for Stevens, he began referring to him as "the one-eyed Jack." Stevens's legal views were downright eccentric. After conference, White would tell his clerks that the vote was 5 to 3 to i, or 6 to 2 to I. He would smile when he mentioned the "i." None of his clerks had to ask which Justice was alone.

  White wondered when the law reviews would come to realize that Stevens was not the imaginative new Justice he was depicted to be, but rather a man with a limited regard for precedent, a judge willing to start each issue from scratch. Stevens approached each case as a puzzle; it seemed he was looking for trick solutions. Still, White admired Stevens's confidence in his crazy ideas. "It's four to four, and we're down to the 'wild card,' " was a common refrain among the Justices when they were vying for Stevens's vote. At one conference, Brennan expressed a strong view on the liberal side, and Rehnquist rejoined with an equally lengthy and strong conservative statement. "I agree with

  Bill," Stevens said smiling, and he got a roaring laugh from the others. But as the year went on, Stevens grew increasingly disenchanted. In a complicated labor picketing case (Buffalo Forge v. United Steelworkers), he was in a five-man majority at conference with Burger. The Chief assigned him the case. Stevens circulated his first draft, and his other votes appeared solid until he got word that Burger was not happy with it. At conference, Stevens tried to find out what was wrong but Burger appeared uninterested. Trying to surmise what the Chief wanted, Stevens sent a new draft around. When he got no response he tried yet another redraft. One of Stevens's law clerks learned from one of Burger's clerks that the Chief was not even reading Stevens's drafts, but the clerk couldn't bear to tell Stevens. Nevertheless, Stevens suspected that Burger wasn't paying much attention to his drafts.

  At the last minute Burger joined White's opinion, giving him the majority; Stevens was forced to change his opinion to a dissent. The incident had a lasting impact on Stevens. Burger had not been frank. Not only was Burger inept, Stevens concluded, but he wasn't even trying. The relationship between the two men deteriorated as Stevens's cynicism grew.

  At times, it seemed to Stevens that the Justices communicated only on paper; there was not enough informal discussion. When he did talk with one of his colleagues, more often than not he came away disillusioned. He asked Marshall about one opinion that Marshall was writing, and he concluded that Marshall did not really understand the issues in it. Stevens was sure that Marshall was capable of being a good lawyer, but he had not done his homework and was relying entirely on a clerk.

  Six years after becoming Chief, Burger was still searching for cases that would provide an occasion for striking down or drastically modifying the exclusionary rule, the rule that said illegally seized evidence had to be excluded from a trial. Two cases (Stone v. Powell and Wolff v. Rice) involved state prisoners who claimed that the evidence used to convict them had been illegally obtained in violation of the Fourth Amendment. To Burger, these seemed perfect cases: two murderers were trying to overturn their convictions by raising technical Fourth Amendment claims. After the highest state courts had rejected their claims, the men had appealed to the federal courts. Under the Constitution, any state prisoner has a right to petition the federal courts for a writ of habeas corpus, which required the state to show that the imprisonment did not violate the federal Constitution. ,

  Burger had long wanted to cut off habeas petitions on Fourth Amendment claims. He believed they were almost always frivolous, and they clogged the federal courts. To preclude such petitions—and to overrule an important Warren Court precedent (Kaufman v. UJS.)—would be a major victory.. But Burger wanted more. He still wanted either to overrule the 1961 Mapp case, which applied the federal exclusionary rule to the states or, at least, to modify the federal rule to exclude evidence only in instances of flagrant, bad-faith police violations of the Fourth Amendment.

  After conference, Burger assessed the complex voting. There were at least five votes to cut back on habeas petitions. There were also four votes, White, Blackmun, Rehnquist and himself, willing to cut back on the exclusionary rule itself. Powell had voted only to cut back on the habeas petitions. Burger could only get his dramatic double victory if Powell were to shift and were willing to modify the exclusionary rule itself. But Burger held out hope that Powell was still open on the subject. Burger used his most potent enticement to lure Powell and assigned him the cases.

  When Burger got Powell's draft opinion, however, he felt betrayed. Powell was limiting the habeas petitions, but he still refused to modify the exclusionary rule in any way. Burger angrily decided to apply some pressure. He let Powell know he would not join unless Powell went further. But Powell still had hopes for five votes, even without the Chiefs. Stewart seemed to be a possible fifth vote though he was shaky. Powell knew his opinion amounted to overruling the Warren Court's precedent on the habeas petitions, and providing the fifth vote to overrule a Warren Court precedent was something Stewart was generally loath to do. Whether it would be the Chief or Stewart who provided it, Powell needed that fifth vote.

  Stewart recognized Powell's precarious position. Though he was uncomfortable with Powell's opinion, Stewart knew this was not the time to leave him in the lurch. Stewart joined. The Chiefs vote was unnecessary. Burger was left without any leverage; reluctantly he finally agreed to join Powell's opinion.

  Stevens had hardly taken his seat on the Court when he found himself the man in the middle on the death penalty. The 5-to-4 ruling in the 1972 death penalty cases was known by the lead case, Furman v. Georgia. The rulings, which had struck the laws in 35 states, ducked the ultimate constitutional question: Does the penalty itself— as opposed to the manner of sentencing—constitute "cruel and unusual" punishment?

  About thirty-five states had enacted new death penalty laws deliberately designed to avoid the restrictions of the 1972 ruling (Furman). No one had yet been executed under these new laws, but hundreds were once again waiting on death row.

  Douglas had been in the 5-to-4 majority in the Furman case. That left the Court divided 4 to 4 when Stevens arrived. Stevens's position was a particularly big question mark, since he had never dealt with the death penalt
y issue on the Seventh Circuit Court of Appeals. Working according to a long-established pattern, Stevens prepared to take on the fifty pending death cases. After a full day in his chambers, he was home by about 8 p.m. and in bed by 10. At 2 a.m., he rose for a few hours of uninterrupted reading and work before returning to bed. These night hours were often his best and most productive.

  As he worked his way through briefs and previous death penalty decisions, Stevens saw that the Court had boxed itself in with its previous rulings. The 1971 McGautha case said that state laws did not have to provide sentencing guidelines for a jury considering the imposition of the death penalty. Nor were separate sentencing hearings after trials necessary. The effect was an endorsement of jury discretion in sentencing. But the 1972 Furman decision had gone against unlimited jury discretion, finding the death penalty unconstitutional because it was imposed arbitrarily, randomly and too infrequently.

  Stevens reviewed the nine separate opinions in the Furman case again and again. It was clear what the Chief, Blackmun, Powell and Rehnquist were saying. They did not find the death penalty unconstitutional. At the other pole were Brennan and Marshall. They opposed the death penalty as inherently "cruel and unusual" under all circumstances. The opinions of White and Stewart were baffling. Stewart's objection to the randomness, the capricious-ness, the arbitrariness, and the lack of uniformity in the imposition of the penalty had been met by about fifteen states, which had passed laws requiring juries to consider all mitigating factors. White's objection, that the penalty was not an effective deterrent since it was imposed so infrequently, had been met by about twenty states that had passed laws making the death penalty mandatory upon conviction for certain crimes.

  In mid-January—less than one month after Stevens had arrived—the Justices held a special Saturday conference to consider the fifty death penalty cert petitions. They generally agreed that the nine separate opinions had left people confused in 1972. They agreed they should select a group of cases to answer the Eighth Amendment cruel-and-unusual-punishment question. The Justices decided to take only murder cases. Burger wanted to hear the most brutal among the fifty petitions, a torture murder involving razor-blade mutilation (McCorquodale v. Georgia), but he could not get three other votes. They decided to select a case from each of the states with one of the five types of laws that had been passed. A consensus emerged that the Court should take only relatively straightforward cases where the facts were clear and presented no side issues, such as racial prejudice. Since Texas had a unique law and few available cases they had no choice but to take a grisly murder from there.

  The cases the conference chose presented the full spectrum and came from five states:

  North Carolina, which had a mandatory death penalty for all premeditated murder or murder in the course of committing a felony (Woodson).

  Louisiana, which required the death penalty for all first-degree murder convictions, but allowed the jury to impose lesser sentences by finding the. accused guilty of second-degree murder or manslaughter (Roberts).

  Texas, which permitted the death penalty only for those convicted of murder in certain situations— such as murder for hire, or killing a prison employee—and where other aggravating factors were present, such as the murder being deliberate and unprovoked, or there being a "probability" that the defendant would commit future violent crimes (Jurek).

  Florida, which required a separate sentencing hearing after a person had been convicted of first-degree murder, at which the jury could consider eight possible aggravating factors and seven mitigating factors. A jury's recommendation of a death sentence could then be overruled by the judge, who imposed the final sentence, or by the state supreme court (Proffitt).

  Georgia, which specified that a jury had to find one of ten specific aggravating circumstances in order to impose the death penalty and then required that the Georgia supreme court review and agree with the sentence (Gregg).

  Powell was convinced that the Court was going to strike down the death penalty once and for all. He could see his colleagues' frustration as these cases arrived year after year. There was so much pressure—the abolitionists, the nine-year moratorium, those hundreds of people on death row. He thought either Stevens or Blackmun would join the four Justices left from the Furman majority to dispose of the issue. Powell thought that Stewart and White would have to hold to their previous votes and opinions. They were in the majority in both the McGautha and Furman opinions. Since those two cases were contradictory, the only logical next step was total abolition, perhaps in an opinion with a vague constitutional grounding like Blackmun's abortion decision.

  Powell remained convinced, however, that he had been right in 1972. The death penalty was constitutional. Powell also viewed the thirty-five new state laws as convincing evidence that the people wanted a death penalty. Somehow the Court had to accommodate this trend without appearing to simply follow election returns. Surely there were crimes so repugnant that they warranted capital punishment. But if the Court reinstated the death penalty, Powell worried about the hundreds on death row. A wholesale slaughter would be just as awful as a sweeping annulment of the recent acts passed by thirty-five legislatures. He was grateful that he had been personally spared from looking a real live defendant in the eye and pronouncing the death sentence on him. The names of those in the cases—Gregg, Proffitt, Jurek, Woodson and Roberts—were remote and unreal to him.

  Powell pondered the possibility of an amnesty. The Court might rule that those who had waited years on death row had already suffered cruel and unusual punishment. He found, however, no support in the law for such a move.

  When the states began passing new death penalty laws right after the 1972 Furman decision, Stewart realized that he had miscalculated. "Professor [Anthony] Amsterdam promised us that if we decided his way this would be the last death case," Stewart told his clerks after Furman. Of course, Amsterdam had assumed that the Court would rule all death penalties "cruel and unusual" under the Eighth Amendment. Stewart and White had specifically declined to do that.

  Unlike Stewart, White was not suprised by the overwhelming enthusiasm of state legislatures for the death penalty after the 1972 decision. He had predicted these new mandatory laws; and he was not about to have any role now in striking those laws. The standards of society were not evolving against the death penalty. Those new laws requiring juries to consider all mitigating circumstances also satisfied him. If that was what the states wanted, he found nothing unconstitutional about it. White expected that he might be the fifth vote to uphold all five laws if the Nixon appointees held firm.

  Brennan was despondent. He anticipated that White would vote to uphold the new laws, and he had no hope for the four Nixon appointees. There was another problem too. Douglas was still trying to participate in the work of the Court. He had called Brennan to announce that he wanted to listen to the oral arguments in the five death penalty cases. Brennan had told him that would be impossible. There were only nine chairs at the bench. Douglas suggested a tenth chair could be brought in.

  "No," Brennan said emphatically, "the statute governing the Court clearly calls for only nine Justices. John has taken your place."

  "Not you too," Douglas said, and hung up.

  The conference decided that the Justices would have to put an end to Douglas's attempts to interfere. They agreed to draft an unequivocal letter to him explaining that since he had resigned, he had no official duties on the Court. He could not sit for oral argument, vote, speak at conference, write or publish opinions. Burger wrote the letter and had it hand-carried to each Justice for his signature. It was painful for Brennan to sign, but he did.

  Douglas stopped trying to rejoin the Court.

  On March 30 and 31, at oral argument, Amsterdam called for a total ban on capital punishment. Without spending much time trying to distinguish among the five state laws, he argued that they should all be struck as "cruel and unusual."

  Stewart wanted to be sure that Amsterdam was takin
g an absolute view that the death penalty for "any person in any state for any crime is cruel and unusual punishment, no matter what the technique, no matter how serious the offense, no matter how fair the procedure."

  "That is precisely the contention," Amsterdam replied. The life-or-death decision was of such magnitude that asking juries to find differences was unjustifiable. "Our argument is that death is different. If you don't accept the argument that it is constitutionally different, we lose this case."

  Brennan, Stewart and White were all upset at Amsterdam's self-righteousness. Amsterdam had lectured them, and, at one point, had even bordered on being rude to Blackmun.

  * * *

  The conference met on Friday, April 2. After the traditional handshakes, the Justices sat down. They first voted whether the death penalty was in all cases "cruel and unusual." The vote was 7 to 2, with only Brennan and Marshall taking such an absolute position.

  Then they voted on each of the five state laws individually. Burger, White and Rehnquist voted to uphold all five; Brennan and Marshall voted to strike all of them. The other four Justices split on the various laws.

  Stewart thought the main issue was how the death penalty was imposed. He felt that the Georgia and Florida laws provided the soundest sentencing procedures, since they allowed the best chance of consideration of individual circumstances. North Carolina and Louisiana, with mandatory laws, were the least likely to provide fair sentencing. On the fifth case, Texas, he was uncertain.