The Brethren
Page 62
Two weeks after the announcement, Amsterdam filed a petition for rehearing in the three cases that were upheld. Since the Court was in recess, the petition was forwarded to Powell, the circuit Justice for these states. Executions could begin at the end of the month, unless Powell granted a temporary stay until the Court could meet to consider the petition.
Powell did not want the first blood on his hands; he was inclined to grant the stay. When Burger learned of Powell's intention, he tried to persuade him to deny. This was the kind of stalling and use of technical loopholes that was fouling up the law, Burger argued. Another delay would be interpreted as a last-minute shift by Powell, perhaps by the whole Court. There would be more doubt.
Powell told Burger that he could not act for the full Court. If any person were executed before the Court reconvened, he would have been denied his fair chance for a rehearing, no matter how unlikely it was that it would be granted.
Burger replied that if Powell granted the stay, he would have no alternative but to reconvene the Court in a special session to overturn the stay, and deny the petition for rehearing.* They both knew that a majority would do just that
Powell called Brennan in Nantucket, and told ftlm about Burger's threat. Brennan reminded Powell that the Chief had no power over him when he was acting as circuit Justice. Brennan suggested that Powell show some "backbone."
If Powell granted the stay, Brennan said, and Burger tried to summon all of them back, Brennan would not come. If Burger persisted, Brennan said he would write a full dissent from any action the Court took spelling out what happened in detail.
On July 22, Powell granted the stay. Burger did not summon the Court back into session.**
The chaos of his first half-term gave Stevens reason to pause. At conferences the Chief read verbatim from clerks' memos and tried to avoid committing himself to a position
* The last time the Court had been convened in the summer to expedite an execution had been in 1953, when the Court overturned Douglas's order blocking the executions of convicted spies Julius and Ethel Rosenberg.
** In one of the first actions of the new term the next October, the Court issued a short order denying the petition for rehearing. There was not a single dissent. The states were technically free to begin executions. But Amsterdam and the lawyers for the Inc. Fund continued to fight each individual death sentence, and to file every conceivable motion in the federal courts to block them. They were successful in every case except that of convicted murderer Gary Gilmore, who asked the state of Utah in January 1977 to carry out his death sentence. He was executed by a firing squad. Involuntary executions began on May 25, 1979, at 10:12 a.m. with the electrocution of John A. Spenkelink, whose sentence had been stayed since the Court's 1972 decision declaring the death penalty unconstitutional.
until the last minute. Brennan's bitterness at the direction of the Court's decisions made him a voice crying in the wilderness. It was sad. Stevens liked Brennan personally, but Brennan gave knee-jerk liberal reactions. Stewart was hard-working but distracted. Marshall parroted Brennan. Blackmun was tormented and indecisive, searching for a way to duck issues or narrow the final opinion as much as possible. Rehnquist was clearly very intelligent and hardworking but too right wing. His willingness to bend previous decisions to purposes for which they were never intended was surprising, but Stevens also liked Rehnquist. Powell seemed the most thoughtful, the best prepared, and the least doctrinaire. White was the most willing to discuss an issue informally before it was resolved, but he could become unnervingly harsh.
The absence of intellectual content or meaningful discussion at conference was the most depressing fact of Court life. Stevens thought that the nation's highest Court picked its way carelessly through the cases it selected. There was too little time for careful reflection. The lack of interest, of imagination and of open-mindedness was disquieting.
By the end of the term, Stevens was accustomed to watching his colleagues make pragmatic rather than principled decisions—shading the facts, twisting the law, warping logic to reconcile the unreconcilable. Though it was not at all what he had anticipated, it was the reality. What Stevens could not accept, however, was the absence of real deliberation. Under the extreme pressures created by Stevens's arrival in the middle of the term, internal animosities that had been growing surfaced more openly and more regularly.
On Sunday, June 20, Washington Star reporter Lyle Denniston wrote a front-page story that was headlined "Supreme Court Is a Different Place Without Douglas." The story related how Douglas's former colleagues, even those who had disagreed with him, missed his outspokenness. Though Denniston did not name them in the story, two Justices had talked to him about the impact of Douglas's departure on Brennan and Marshall. One Justice was quoted as saying that the two remaining members of the liberal wing were "beleaguered." The other was quoted as saying that Brennan and Marshall were aware of their declining importance, and were reacting to their isolation with more strident dissents. The result, one Justice said, was that the majority felt less obliged to respond to the Brennan-Marshall dissents. "You don't go around chasing rabbits," one Justice was quoted as saying. "You don't need to answer every flag they run up."
A few days later at the end-of-the-year status conference to determine which cases were ready to be announced, one of Powell's Fourth Amendment cases came up for discussion.
"I'm ready," Powell said, "but I don't know if Bill Brennan is ready. He may have more dissenting to do."
"Well," Brennan said, "if the story in The Star on Sunday is correct, I don't know why you even have to ask me. I take it you don't feel you have to read my dissents or respond to them anyway." · "You don't believe that, Bill," Powell said.
Several of the others tried to calm Brennan, but Brennan answered them sharply. "Two of the brethren are quoted."
"You don't believe what you read in the papers, do you?" White asked.
Stevens said that he too wondered about the direct quotations attributed to unnamed Justices. Nearly everyone jumped in, voicing views about the article, the press, dissents, Douglas's retirement and its meaning. The discussion continued for some time.
Only Stewart and Rehnquist remained silent.
Brennan later toned down his dissent in Powell's case. It was one of the few that he softened, and it was still strong. It accused the majority of deception, charging that they had overruled the 1969 Warren Court case without saying so. The majority's action, he said, was "drastic," was "novel," foreshadows "future eviscerations," and amounts to a "denigration of constitutional guarantees." He pointedly retained a citation to a 1971 Yale Law Journal article entitled, "Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority."
Five separate Fourth Amendment cases were announced on July 6, the last day of the term. All five ruled against citizens' rights and in favor of the government. One case (U.S. v. Martinez-Fuerte) authorized the border patrol to stop cars at fixed checkpoints miles away from borders and without probable cause. Brennan, dissenting for himself
and Marshall, listed it as one of nine such cases in the "continuing evisceration of the Fourth Amendment" during the term.
Because of the five cases announced on the last day, the clerks in most chambers began calling it "Black Tuesday." But if it was "black" and ran contrary to their liberal views, this turning away from the Warren Court was orchestrated and controlled not by Warren Burger, but by Stewart and White, who had served on the Warren Court, Powell, the most moderate of the four Nixon appointees, and by Stevens, the new moderate.
The center was in control.
Index
abortion cases, 193-207, 215-223, 258, 271-84, 491-93 federal jurisdiction issue, 193-99 passim, 207 Adams, Arlin M., 475 Adicke&v. S.H. Kress & Co., 69
affirmative action, 333 Agnew, Spiro, 9, 83, 357/1. Aikens v. California, 243/1., 251
Air Force, sex discrimination, 301-02
Alexander v. Holmes County Board of Education, 36-60,
107
Alexander v. Louisiana, 200
Alexander v. Virginia, 24m.
Alexandria Scrap Co. v. Hughes, 477-78
Ali, Muhammad, 157-60,174
aliens
admission to bar, 303-05 border searches, 307-08,
433. 454-55. 527-28 federal jobs, 477 Almeida-Sanchez v. U.S., 307,
454
Amalgamated Food Employees Union v. Logan Valley Plaza, 210, 213
American Bar Association, 7,
21, 35, 36, 74, 174, 185-
191 passim, 475 American Civil Liberties
Union, 149, 329, 440 Amsterdam, Anthony, 245,
247-48, 514-17, 524,
526n.
antitrust cases, 261, 454 baseball, 219, 223-26 rehearing of El Paso case,
89-96 unions, 447-48 antiwar protesters, 67, 147-60, 208, 209-10, 30971., 475 arrests at Supreme Court, 155-57
Antoine v. Washington, 425 Apodaca v. Oregon, 263 appointments. See nominations Ashe v. Swenson, 80-82 assignment cases (see also
Burger, Warren E.; names
of cases), xiii, 70-71, 137,
3H,496 as issue, 200-01, 210-13,
220-22, 495-501 passim,
518-20 Associate Justices (see also
names), 10, 11-12 Atlanta, obscenity case, 290$.
Autobiography of Malcolm X
(Haley), 159 Ay res, Charles, 286
Bagby, Marty, 423, 470
Baker v. Carr, 146
Bakke, Regents of the University of California v., 334«
bar, admission of aliens, 303-304
baseball antitrust case, 219, 223-26
Bazelon, David L., 17, 22, 30, 419
and Burger, 9, 19-20, 21,
100, 438, 449, 497 on mentally ill, 438 Baird, William. See Eisenstadt
v. Baird Beckwith, David, 281-82 Belcher v. Stengel, 481 Bellotti v. Baird, 493 Benton v. Maryland, 80 Berrigan, Daniel, 475 Bickel, Alexander
Pentagon Papers, 167, 168 pornography, 291 Bill of Rights (see also specific
Amendments), 246, 481 birth control cases, 193-95,
206, 277 Bivens v. Six Unknown Named
Agents, 74-76, 136 Black, Elizabeth (Mrs. Hugo),
151
Black, Hugo, 36-37, 38, 40-41, 67, 99, 137 and Blackmun, 101-02, 138, 139
and Brennan, 56, 127, 185^. and Burger, 73, 96, 99, 100, ill, 123-24, 137, 201
busing, 110-13 passim, 121-127 passim, 180, 181-82, (see also Black, Hugo: school desegregation) conservatism, 73, 86, ill constructionist, 77, 79 court fees, state courts, 101-102
on courtroom decorum, 68 death, 185
death penalty, 243-44 dissents, 62, 68, 76-77, 102,
143, 243 and Douglas, 144, 161, 183 El Paso rehearing, 89-96
passim
federal jurisdiction issue, 139 Fifth Amendment, 80' First Amendment, 143, 147,
149-51, 161-75 passim,
227-28, 229, 234 Fourth Amendment, 129-36
passim, 137 and Harlan, 47-48, 89/1.,
101-02, 126-27, 143, 183 and Haynsworth, 61 health, 36-37, 47, 86, 142-
143, 160, 180, 183-85 integration and donor rights,
65-66 Korean War, 144 law clerks, 39, 88, ill liberalism, 38, 67, 85 on obscenity, 229, 234 papers, private, 65, 84 Pentagon Papers, 161-74
passim resignation, 183-85 school desegregation, 36-60,
110-13 passim, 121-27
passim, 180, 181 Sixth Amendment, 68, 76-79
stare decisis doctrine, 129-133
and Stewart, 123-24 union rights, 143-44 Vietnam war cases, 144-45,
148, 151, 155, 159-75
passim
Warren and Warren Court,
14, 67, 161 welfare search, 138 World War II, 144 Black, Hugo, Jr., 184 Black Muslims, 158-60 Black Panthers, 67 Blackmun, Dottie (Mrs. Harry
A.), 215, 282 Blackmun, Harry A., 100-03 passim, 138, 139, 143, 468, 510 abortion cases, 196-208 passim, 215-23 passim, 271-84 passim, 491-94 passim
antitrust case, baseball, 219,
223-26 and Black (see Black: and
Blackmun) border searches, 307, 455 and Brennan, 99, 202, 206,
224, 266, 283, 298/1.,
428-29, 485-86 and Burger, 97-98, 100, 139,
201, 203-04, 205-06, 222,
224, 226, 265, 3»5i 343.
374, 430, 495 cert pool, 323, 324 conference records, 204 on Court of Appeals, 96, 97,
120, 137, 248 death penalty, 243, 246, 248,
249, 254, 258-59, 516,
517. 5i8
dissents, 192-93, 228, 429 and Douglas, 136, 191-93,
201-02, 217-23, 273, 286,
426, 464, 467, 471 due process, 480, 481 environmentalism, 191-93 federal courts, access to, 504 federal jurisdiction issue,
139, 194, 208 habeas corpus petition, 510 and Harlan, 101-02, 120,
139
law clerks, 137,138, 214,
283,420 and Marshall, 248, 265-66 Mayo Clinic general counsel,
97, 196, 205, 215 on mentally ill, 440-51
passim nomination and
confirmation, 96-99 obscenity and pornography,
228-31 passim, 235, 241,
293, 298/1., 298-99, 330,
430, 431, 432 Pentagon Papers, 162-70
passim, 344 police brutality, 494-95 and Powell, 254, 297 prior restraint, 430 racial discrimination, 120,
333. 334". reapportionment, legislative,
322
and Rehnquist, 279, 298/1.,
490, 492 school desegregation, 120,
310-17 passim, 335 sex discrimination, 302 speech, protected, 151, 153,
162-70 passim, 210 stare decisis doctrine, 97
Blackmun, Harry A. (cont.) states rights and minimum
wage law, 483-87 passim and Stevens, 526 and Stewart, 202-03, 216-
217, 224-25, 277-78, 284,
490 tax cases, 429
Vietnam war cases, 145,151, 155. 159. 162-70 passim, 210
Watergate (executive privilege), 343, 346, 350, 356, 374-75, 380-81, 387, 396-403 passim, 407, 408 welfare search, 137-39 and White, 101, 218-19,226,
278-79, 491-94 writing of opinions, 202, 266 Blackstone, William, 443 Blue Chip Stamp v. Manor
Drug Stores, 429 Board of Regents v. Roth, 479 Boddie v. Connecticut, 101-02,
143
border searches, 307-08, 433,
454-55 Bork, Robert, 341, 475 Bowen v. U.S., 433 Bowman Dairy Co. v. United
States, 378/t. Boykin v. Alabama, 243 Brady v. Maryland, 266 Branch v. Texas, 243/1. Brandeis, Louis, 85, 161 Branzburg v. Hayes, 263, 405 Breitel, Charles D., 186 Brennan, Marjorie Leonard
(Mrs. William), 425-26 Brennan, William J., 13, 48-
49, 70, 86, 139, 233, 254,
255, 468, 469 abortion cases, 199-208 passim, 217, 220, 222, 223, 273-74, 280, 281,
492-94 anti-sodomy law (Doe v.
Commonwealth), 505 assignment of cases, 71, 212,
301,311,425, 466, 477,
495-501 passim, 521 attacked, 17
birth control case (Eisen-stadt v. Baird), 206-07, 217
and Black (see Black: and Brennan)
and Blackmun (see Blackmun: and Brennan)
border searches, 455-56,527
and Burger, 20-21, 71, 100, 175, 212, 237-38, 281, 322, 323, 425-26, 436, 481, 496-97, 501-02, 507
campaign financing, 469-74 passim
case load issue, 323-24
death penalty, 243, 246, 249-50, 255, 260, 515-17, 519, 523-24
discrimination, racial, 334/1.
dissents, 49, 65, 135-36, 138, 230, 299, 321, 332-333, 434, 455, 478, 484, 485-86, 497, 504, 523-24, 527, 528
and Douglas, 86, 87, 220-221, 228-29, 239, 260, 299, 351-52, 371-72, 424, 436, 464-66, 473.515, 526
due process, 479, 480^ 481
El Paso rehearing, 89-94 passim
federal courts, access to, 503, 505
federal jurisdiction issue,
139, 198 Fourth Amendment, 131-32