The Brethren (22 page)

Brennan was convinced that Black had lost touch with reality. Black wanted desegregation, but, as the Court's only Southerner, he found it hard to face the discomfort and dislocation it inevitably brought. The others decided that the only course was to accept the prospect of a Black dissent. Perhaps an
8
-to-1
decision would not be that bad.

Faced with this defeat, Black began to reconsider his position. A separate dissent, he feared, might provide an encouraging signal to the remaining segregationists. He and the Chief had, after all, succeeded in preventing a flat-out endorsement of strict racial balancing, the elimination of every one-race school, and unlimited busing. Practically speaking, the final draft would cause most lower court judges to think twice before ordering massive compulsory busing of elementary-school children.

A few days later, Black sent a memo to the Chief. "Maybe it is safe to join now," Black said.

The tradition of unanimity appeared to have been saved. At the last minute, however, a final obstacle threatened to undo the months of compromise. Douglas circulated a draft dissent in another busing case
(Keyes
v.
School District No.
I,
Denver, Colorado)
that went far beyond the carefully worded opinion in the Charlotte case. The other Justices quickly prevailed on Douglas to withdraw the draft before it provoked a response from Black or Burger.

On April
20, 1971,
the Chief announced from the bench his unanimous opinions in the Charlotte and companion cases. Newspapers from coast to coast carried banner headlines declaring that the Court had backed busing.
The New York Times
featured Judge McMillan as the "Man in the News." Burger couldn't understand it. He told friends that he considered his opinion "antibusing."

It also did not take Court observers long to recognize the internal inconsistencies in the opinion. "There is a lot of conflicting language here," a judge of the Fifth Circuit Court of Appeals, where most desegregation cases had arisen, told
Newsweek
magazine. "It's almost as if there were two sets of views, laid side by side."

Stewart could see the judge's point, but he felt that the thrust of the decision could not be missed. It was rare for the Court to pat a lower-court judge on the head, and to specifically approve his actions without saying that they were constitutionally required.

Another news article, citing inside sources as saying that the opinion had been pieced together by other Justices, sent Burger into a rage.

Black took the Chief aside and told him to ignore the press.

Later, when Burger gave a tea for the law clerks from all chambers, one of them asked him about the evolution of the Charlotte opinion from his first draft. "There wasn't much difference," Burger replied. "It didn't change much."

With Blackmun's addition to the Court, Burger hoped to trim back some of the Warren Court's decisions on criminal law during the
1970
term. In one case
(Relford
v.
Commandant),
the Court was being asked to make a
1969
Warren Court decision
(O'Callahan
v.
Parker)
retroactive. The ruling required civilian, rather than military, trials for serviceman accused of non-service-related crimes.

At conference on the Friday before Christmas, Burger and Blackmun joined the dissenters in the
1969
case— Harlan, Stewart, and White—to create a new majority that both opposed making the earlier decision retroactive and favored cutting back on the precedent itself.

Harlan suggested they go even further and actually overrule the
1969
case. The others in the majority were inclined to agree. As the Justices moved to other cases, however, Harlan had second thoughts. It would be precipitous, he said, to overrule the precedent. He suggested a less drastic alternative, distinguishing between the two cases in order to leave the earlier one intact. The others in the majority were satisfied.

Another case considered in December
(
Harris
v.
New
York)
challenged the scope of the Warren Court's famous
Miranda
ruling. Under
Miranda,
police were required to inform a person who had been arrested of his right to remain silent and be provided a lawyer. If the police failed to give that warning, whatever a suspect told them could not be used in a trial.

In the pending case,
a
lower court had made an exception to the strict commands of
Miranda
when the defendant, in testifying at his trial, had contradicted what he had first told police. The prosecutor claimed that the earlier statements had to be admitted in court in order to challenge the defendant's new testimony.

At conference, Black, Douglas, Brennan and Marshall wanted to hold the line with the
Miranda
decision. Allowing the statements to be used for any reason would undercut
Miranda.
Burger and Blackmun again joined the three
Miranda
dissenters to allow the statements to be used in the trial. And the new majority, it seemed to Burger, might be willing to go further and gut much of
Miranda.

Harlan, however, repeated his concern that they were moving too quickly. He wanted to overrule
Miranda,
and
a
number of other Warren Court decisions. But to sweep away years of precedent because the membership of the Court had changed would be a serious mistake. For fourteen years, Harlan had urged
stare decisis
in his dissents from the Warren Court rulings. He would not abandon that doctrine. Harlan, the fifth vote, suggested that they stick to the narrower exception to the
Miranda
ru
ling presented by this one case. The others went along.

Harlan was delighted when his friend Black leaned over to him one day during oral argument and whispered some good news. Black said he was rethinking his position on one of the most controversial areas of
c
rimin
al
law—the so-called "exclusionary rule." Under this doctrine, the Court had held more than once that evidence obtained in an "unreasonable search" could not be used to convict the person searched even if, as a result, obviously guilty criminals went free. These decisions, beginning in
1914
with
Weeks
v.
U.S.,
had come to be called the "exclusionary rule," because evidence obtained in an illegal search—
a
weapon, a document, or
a
piece of stolen property—had to be excluded from a criminal trial.

The rule had grown out of two theories: first, that the only way to deter police from violating the Fourth Amendment's protection against "unreasonable searches" was to prohibit the use in prosecutions of whatever they had illegally obtained; second, that evidence obtained illegally would taint a trial and make the courts partners in lawless police conduct.

Harlan was glad to hear that Black was reconsidering. Since Harlan, White, Burger and Blackmun were all, each for different reasons and to a different degree, willing to change the exclusionary rule, Black could be the needed fifth vote. Harlan also felt that since Black was a member of the original majority, there would be less of a problem in overruling the precedent.

There were before the Court several cases that dealt with various aspects of the rule. They could provide Black with
a
number of opportunities to revise his thinking.

The Justices who wished to modify the rule thought it had developed into
a
series of complicated and confusing requirements that puzzled the police more than it restrained them. The Fourth Amendment prohibited "unreasonable" searches, but "unreasonable" had never been fully defined. It was a term Black had trouble interpreting literally. It was necessarily rooted in each Justice's subjective judgment.

The Fourth Amendment also required that police obtain a warrant, and that it be issued only when "probable cause" was shown that a search would yield specific items. Yet the Court, over the years, had allowed numerous exceptions to the warrant requirement. The exceptions allowed police to conduct warrantless searches during
a
lawful arrest, to seize items in "plain view," to search
a
person if he consented, and to search automobiles since someone could move a car before the police could get
a
warrant.

Since his days on the Court of Appeals, Burger had been an articulate advocate of a change in the exclusionary rule. He argued, both on and off the bench, that society had paid a monstrous price for the rule. Guilty criminals were being set free because key evidence could not be introduced at trial. Often, the police were well-meaning, but had made a technical error in securing
a
warrant or in documenting probable cause.

Burger agreed that evidence should be suppressed where there was genuine police misconduct, such as breaking and entering or coercion. But he was sympathetic to the cop on the beat who honestly concluded that a person had been casing a store for a burglary. That was the kind of routine and proper law enforcement that prevented crime. Yet the evidence obtained as a result of stopping and searching in such instances was often excluded for lack of "probable cause."

Burger had presented his views in
a 1964
lecture at American University. "We can ponder whether any community is entitled to call itself an 'organized society' if it can find no way to solve this problem except by suppression of truth in search for truth." The argument had a strong common-sense appeal. Why should a trial designed to determine what actually happened exclude the very evidence that would best establish just that?

Burger felt that there should be a remedy such as disciplinary action against police officers who abused constitutional rights. But he also believed that the exclusionary rule had little deterrent effect on future police misconduct. Police were often unable to follow their own cases through the years of appeals where Fourth Amendment questions were eventually decided. If a conviction was overturned because of police error, the police would probably never know why.

Quoting former Justice Benjamin N. Cardozo, Burger declared that it was irrational that a "criminal go free because the constable erred." It was absurd to free a murderer because a policeman, for example, had made a minor error on an application for a search warrant.

Although Brennan was one of the strongest supporters of the exclusionary rule, he also had developed serious doubts about its effectiveness in deterring police abuses. But he could think of no practical alternative. When Harlan told him that Black was rethinking his position, Brennan was worried.