The Brethren (12 page)

Harlan considered the Chiefs new draft a half measure. Why not use the legal core of the opinion, or ask to borrow it verbatim? But he had a dilemma. If he didn't withdraw his concurrence, now that Burger had gone so far to accommodate him, the Chief might be offended. Harlan never wished to offend anyone unnecessarily. He mulled it over. Ultimately, as always, each Justice could publish what he wanted in terms of separate concurring or dissenting opinions. Despite the closeness of the Chief's latest draft to his concurrence, Harlan told his clerks, "We're going with it." He instructed that his concurrence be shortened slightly, printed, and published when the decision was announced. Harlan was determined to hold to his standard of meticulousness.

For Burger there were no more intimidating experiences than his first few encounters with Marshall in the marble corridors of the Court.

"What's shakin', Chiefy baby?" Marshall would sing out. Puzzled, Burger mumbled a greeting of his own. It did not take Burger long to realize the pleasure Marshall got from making him uncomfortable. Marshall had many similar stories of putting people on. A favorite of his involved unsuspecting tourists who mistakenly entered the Justices' private elevator. Finding a lone black man standing there, they said, "First floor please." "Yowsa, yowsa," Marshall responded as he pretended to operate the automated elevator and held the door for the tourists as they left. Marshall regularly recounted the story, noting the tourists' puzzlement and then confusion as they watched him walk off, and later realized who he was.

But Burger genuinely liked Marshall. After all, Burger had been a leader on a biracial committee in St. Paul that had tried to resolve police problems with the black community thirty years earlier—long before the issue was fashionable. He considered himself a moderate liberal, a Lincoln Republican, on race issues. And H was because of these values that his vote in a mid-November conference troubled him.

The case,
Evans v. Abney,
involved a segregated 100
-acre public park in Macon, Georgia. The land had been willed to the city in
1911
by a Georgia segregationist, who had stipulated that it be kept a whites-only park. For a half-century the park was kept segregated, until in the
1966
term, the Supreme Court had ruled that the park must be integrated. The man's heirs subsequently sued to recover the land, saying that the purpose of his will had been violated. The Georgia courts agreed.

With some misgivings, Burger joined a
5
-to
-2
majority in conference to uphold the Georgia decision. Brennan and Douglas dissented; Marshall did not vote, since he had been involved in the case three years before as Solicitor General.

Brennan hammered away in his dissent, arguing that the closing of a public park was a discriminatory action by the state and the Georgia court. It violated the equal protection guarantees of the Fourteenth Amendment.

Black, writing for the majority, was equally forceful. What the Georgia court had done was not discriminatory. The park was being closed for both blacks and whites alike, he asserted. It was a racially neutral act based on the state court's interpretation of its own racially neutral law on wills. The determination of wills had always been a state question, he argued. If the Court intervened, it would be carving out one more area of federal control. This was a state matter. It was also a question of a person's right to dispose of his property as he wished. Black felt strongly on that subject. He wanted no interference with his wish to have his Court papers destroyed when he died.

Burger agreed that the federal courts should not extend Fourteenth Amendment guarantees to such traditional areas of state control. But he wanted to avoid having his Court support the segregationists. As he frequently did, Burger went to Harlan for help. Harlan was an expert on federalism—the allocation of power between the state and federal governments. Harlan appreciated Burger's intention, but he said he could not find any part of the Constitution that prevented the Georgia court from directing that the land be returned to the heirs. And the federal courts had no power to order it in any case. In a literal sense, Black was right; it was not a discriminatory act.

Burger suggested that perhaps they could find a more limited ground than the Fourteenth Amendment and simply assert that the Georgia decision was "wrong" because the Georgia courts had misapplied the Georgia law. They should have ruled that the donor's basic intent had been to bequeath a park, that while he did want it segregated, he was primarily concerned that there be a park. Therefore, under Georgia law, the Georgia courts should have construed the will to leave the park
public
and, therefore,
integrated.

Politely, Harlan asked on what grounds he based his decision. What part of the Constitution did Burger intend to cite to justify such a ruling?

Burger said he preferred to avoid specifying any grounds.

A federal court, Harlan reminded the Chief, even the Supreme Court, couldn't simply tell a state how to interpret its laws without providing a constitutional reason, whether it be equal protection or some other reason.

"We are the Supreme Court and we can do what we want," Burger replied.

Harlan tried again to point out that what the Chief was proposing amounted to a dramatic expansion of the Court's power to intervene in state matters. The Court, of course, could make statutory interpretations of federal laws passed by Congress. But, to Harlan's knowledge, the Court had never corrected a state court by asserting that its decision was "wrong" unless it conflicted with federal laws or with the Constitution.

There must be some way to decide it narrowly, Burger said.

No, Harlan responded, he could find none.

Burger left, still protesting that the Court had greater latitude to do what it wanted.

Harlan went into his law clerks' office and described the meeting. Harlan had never criticized anyone personally, but now he seemed both a bit bemused and a bit horrified. Burger had spent thirteen years on the District of Columbia Circuit, where there was little exposure to state law, since the District was a federal enclave and Congress passed the local laws. So it was probably an honest mistake. His new colleague had a lot to learn, Harlan indicated. He had hoped that Burger would be a more skillful legal technician. How could someone be a judge and not understand a concept familiar to most third-year law students? Harlan's smile flickered as he repeated Burger's assertion of federal judicial supremacy—The Court can do anything it wants. So much for the Chief's claims that he believed in judicial restraint.

Burger, for his part, was pondering what Harlan and Black had told him. He still didn't like it; the Georgia court decision was wrong. But he gave up. He wrote a memo to Black with copies for the conference.

"Dear Hugo,

"This is a difficult case with a result I do not relish, but the question is one for the states (states, unlike federal agencies and this Court, are not infallible). Seeing it as a state question, I join your opinion."

Hugo Black had been ahead of his time for most of his life. Graduating from the University of Alabama Law School without high school diploma or college degree, he maintained a rigid reading schedule of "great books" to compensate for his lack of formal education. Elected to the Senate in
1926,
Black became a powerful Roosevelt ally. A colorful showman in Senate hearing rooms, Black supported Roosevelt down the line and was a controversial and powerful politician when Roosevelt appointed him to the Court in
1937.
In three decades on the Court, Black had seen his early dissents become majorities. Black had provided the basis for many of the Warren Court's landmark decisions, and some observers even argued that the "Black Court" would be a more appropriate title.

Still driven by a burning evangelical need to persuade his colleagues of his views, Black worked intensely at the job. But after thirty years on the Court, he no longer felt ahead of the times. He was troubled by the many reports of disruptions in courtrooms across the country. The judiciary —federal, state, even the local police courts like the one on which he had served in Alabama—was the real underwriter of American liberty. Black was fiercely protective of judicial independence and prestige. Yet antiwar and black activists had turned courtrooms into circuses. At the trial of the "Chicago Eight" in
1969,
Judge Julius Hoffman was. confronted with verbal and physical threats by defendants who had staged the antiwar protests at the
1968
Democratic National Convention. He had ordered one defendant, Black Panther leader Bobby Seale, shackled and gagged during the trial. In New York, another judge had been threatened repeatedly during pre
-
trial hearings of thirteen Black Panthers. At one time he was forced to postpone the hearings until the defendants observed court decorum.

In the middle of the term, Black pushed to have the conference grant a hearing in a case
(Illinois
v.
Allen)
that dealt with the constitutional limits on judges to control unruly defendants. In the Allen case the judge had expelled the defendant from the courtroom. The case was thirteen years old, without any of the notoriety of the so-called political trials. But it provided the Court with an opportunity to tell trial judges how they could deal with disorderly courtroom behavior without violating the rights of the accused. Black thought that if the Court waited for the political cases to come up before it dealt with the issue, the waters would be muddied by such questions as the Vietnam War and police infiltration of black groups. The
Allen
case provided an opportunity to make a strong statement without any side issues.

After oral argument and conference, only Douglas had reservations about the Court reaching out to issue a list of constitutionally permissible actions that a judge might take to maintain order in the courtroom. The Chief assigned Black to write an opinion for the seven-member majority.

Black relished the opportunity. The Sixth Amendment guaranteed a defendant the right "to be confronted with the witnesses against him." But, Black wrote, the courts cannot be "bullied, insulted, and humiliated and their orderly progress thwarted and obstructed." Calling courts "palladiums of liberty" and "citadels of justice," Black said there were three things that could be done without violating the Constitution: binding and gagging the disorderly defendant; citing him for contempt; and expelling him until he promised to behave.

Harlan, a believer in decorum everywhere, was so anxious to get Black's opinion announced that he wrote a memo to complain that Douglas was taking too long in writing his separate dissent.

Douglas intended no delay. He prided himself on being the fastest writer on the Court. He often turned out an opinion the day after an assignment; his separate opinions were ready weeks, if not months, before the majority opinions. His clerks often called these "plane-trip specials," because they were written after the Friday conference on an airplane, as Douglas traveled to some speaking engagement. At times he mailed longhand drafts back to the Court, so that they could be printed and ready for revision upon his return. The other Justices all acknowledged Douglas's brilliance and incredible productivity; White called him a "paper factory." Douglas was so prolific that once when former Justice Charles E. Whittaker was unable to draft a majority opinion, Douglas finished his dissent and then wrote Whittaker's majority for him.

But the others also had come to wonder if Douglas's opinions—often disorganized treatises on sociology rather than law—did not sometimes fall victim to his unrelenting pace and curiosity. Declaring "there will be no errors in my opinions," Douglas, just the same, refused to allow his clerks to edit them.

But in the
Allen
case, Douglas had misgivings about the majority's willingness to issue a broad-policy document that was clearly aimed beyond the case at hand. And for Harlan, who was far slower than he, to complain about delay was particularly galling. Harlan often took months, because he liked to write a
Harvard Law Review
article on each case, making his opinion gray in style, tone and result. "There is one thing you ought to know," Douglas told his only clerk, "I don't write law review articles like Harlan does."

Unwilling to sacrifice his candor in the interests of fraternity, Douglas fired back a flinty memo saying he would have his opinion ready when he was done and no sooner. He ridiculed Harlan's protest, noting that Harlan was taking months to produce an opinion in a discrimination case
(Adickes
v.
S. H. Kress &Co.).

Douglas circulated his dissent soon after, expressing his irritation that the Court was, in effect, approving the broad use of harsh measures by judges to control defendants in controversial political trials.

The Court's opinion was announced five weeks after oral arguments, nearly a record for speed in such a seemingly routine case. And across the country, lower court judges could be confident that the Court would back their efforts to maintain order in their courtrooms.