The Brethren (44 page)

The nine separate opinions totaled
50,000
words,
243
pages—the longest decision in the Court's history.

* * *

With his long sideburns and moderately long hair, Rehnquist looked younger than forty-seven. Wearing his tortoiseshell glasses, he sat slouched in a chair with his penny loafers propped up on the mahogany conference table to the right of his office door. The informal posture reflected his easygoing approach to life at the Court. He had quickly settled into a comfortable routine.

Rehnquist watched with some amusement as the Court tackled an important antitrust case (
U.S. v. Chas. Pfizer & Co).
Stewart, White and Marshall recused themselves, leaving only six Justices to decide the matter. The initial conference vote was
4
to
2
for the company, with Douglas and the Chief in the minority. The Justice who was assigned the majority would have to plow through briefs, exhibits and trial transcripts that filled six feet of shelf space. Brennan had made up his mind before conference that none of them should have to waste so much time. With a twinkle in his eye, he announced that on further reflection he was persuaded by the Chief's logic. He would switch and vote against the company, making it a
3
to
3
tie. Since the tie would still affirm the lower court decision for the company, his switch would have no effect on the actual outcome of this case and no one would have to write an opinion.

The liberals found it hard not to like the good-natured, thoughtful Rehnquist. They could even bring themselves to respect his crisp intellect and diligence. And they weren't surprised when Rehnquist began promptly to live up to his advance billing as a solid conservative vote, siding invariably with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases and with the government in speech cases.

His extreme legal philosophy worried the liberals. Rehnquist had a very narrow view of the Fourteenth Amendment, which was passed after the Civil War to remedy the effects of slavery and guarantee the rights of black citizens. The Court had for nearly a century used this amendment to ensure basic freedoms for all citizens. In Rehnquist's view, the amendment was misapplied when used to give rights to prisoners, women or other groups. For the first time in a half-century, a Justice was flatly stating that the Court had no business reflecting society's changing and expanding values. He seemed prepared to turn the clock back a century.

To Marshall, Rehnquist's stark revisionism often seemed crude and mean-spirited. Marshall insisted on looking beyond Rehnquist's apparently sincere literalism to the motives of the man who had nominated him to the Court. Marshall viewed Rehnquist's nomination cynically as Nixon's calculated revenge designed to curtail liberty for the less fortunate and underprivileged. The prospect of living out his remaining years on the Court with Rehnquist did not please Marshall. Marshall was particularly chilled by Rehnquist's warning that the liberals should curtail their broad interpretations of the Constitution. It was only recently that activism on the Court had become "liberal" activism, Rehnquist reminded them. Only forty years before, the Court's activists were conservatives. The balance was once again shifting back, Rehnquist said. Once it had, the liberals would be the ones calling for judicial restraint and chiding the conservatives for ignoring precedent.

Even more chilling to the liberals was Rehnquist's ideological commitment to keep the federal courts out of certain types of cases. He argued that state legislatures, state governments, and state courts should be given the benefit of the doubt when it came to defining the individual rights of their citizens. Only the most extreme abuses could be corrected, he felt. The Court had no business forcing its views on the states; it was not the voice and conscience of contemporary society.

Beneath Rehnquist's stated commitment to judicial consistency, the liberals saw his willingness to cut corners to reach a conservative result. Polished, articulate opinions seemed cleverly, sometimes deceptively, to gloss over inconsistencies of logic or fact. In one case
(Jefferson
v.
Hackney),
Douglas and Marshall objected that Rehnquist's majority opinion misrepresented the legislative history of the federal welfare program. Slow even to correct an outright misstatement, Rehnquist still insisted on publishing an opinion that twisted the facts. His own clerk was so embarrassed by Rehnquist's refusal to modify the opinion that he sent a personal note of apology for his role in the case to the clerks in other chambers.

* * *

Brennan had worried that Powell would become as inflexible as Rehnquist. He was also fearful that Powell might defer to Burger. As he reviewed the results of each conference with his clerks, Brennan referred frequently to whether Powell "was being taken in by the Chief" or "saw through" the Chief's antics. He hoped that the Chief would offend Powell and drive him into the arms of the liberals.

Powell had begun cautiously and to Brennan he seemed precise and fair-minded, somewhat like Harlan. Harlan and Powell had both concluded, from years of private law practice, that narrow solutions to legal problems were better than sweeping ones.

The parallel with Harlan was unmistakable when Powell became the swing vote in two cases that had been held over from the previous term
(Apodaca v. Oregon
and
Johnson
v.
Louisiana).
Both cases involved the question of whether juries must be unanimous in their verdicts in criminal cases. The year before, Douglas, Brennan, Stewart and Marshall had said yes. Burger, Black, White and Blackmun had said no. Harlan had staked out a unique position; he had held that juries must be unanimous in federal trials but not in state trials. Undecided, the case had been put over.

After it was reargued, and with Black and Harlan gone, Rehnquist voted as Black had. The Court was again split
4
to
4.
Powell did not vote, but after studying the long draft that Harlan had had his clerks prepare the year before, Powell adopted Harlan's position, splitting his vote by voting one way for federal trials and the other on state trials.

Burger tried to get Powell to switch. White ordered one of his clerks to write a "hatchet job" on Powell's opinion that would highlight the inconsistency. Powell would not budge. Brennan was unhappy with the outcome, but he took consolation in the fact that Powell had at least chosen to follow Harlan rather than Burger. Brennan liked to tell his clerks that Harlan had been the "only real judge" on the Court in the years of Brennan's service, the only Justice who weighed the legal issues with sufficient dispassion.

Powell was to be the swing vote in three important First Amendment cases
(Branzburg
v.
Hayes, U.S. v. Caldwell, In re Pappas)
that dealt with the question of whether news reporters had to reveal to grand juries the identities of confidential sources. After much hesitation, Powell finally decided to give White a fifth vote for an opinion declaring that reporters, like all other citizens, had to give information to grand juries. But Powell's vote came with a separate concurrence, with qualifications that suggested that the issue might have to be reconsidered if reporters were harassed by grand juries. Again, it was reminiscent of Harlan. He had used his crucial swing vote to limit the effect of a majority opinion.

In dissent, Stewart called attention to Powell's important qualifications, which, Stewart said, "leaves room for the hope that in some future case the Court may take a less absolute position in this area."

Brennan found additional comfort during Powell's initial months as a Justice. Before coming to the Court, Powell had publicly supported the Nixon administration's claims that domestic radicals could be wiretapped without the customary warrants from a judge. But in a case that raised that very issue
(U.S.
v.
U.S. District Court)
Powell reassessed his views and wrote a strong majority opinion rejecting each of the administration's arguments. Burger had tried to assign the case to White, who, along with himself, wanted to duck the central constitutional question of whether the warrantless wiretap violated the Fourth Amendment.

White rejected the assignment, noting that he and the Chief were alone in their view. Douglas immediately reassigned the case to Powell, who held firm in the face of Burger's continuous pressure not to write a broad constitutional ruling.

From Brennan's perspective, the initial impact of Nixon's new appointees was not as bad as he had feared. Rehnquist was a rigid ideologue willing, even anxious, to overturn the work of the Warren Court. Yet no major Warren Court precedent had been overruled that term, and Powell was the main reason.* He seemed determined to be his own man, and he remained as flexible and reachable as Rehnquist was inflexible, unreachable. Powell had positioned himself in the center, along with Stewart and White.

* In
Kirby
v.
Illinois,
Powell was again a swing vote and he took a middle course. He refused to extend a Warren Court precedent and require that the state provide lawyers at all lineups. At the same time, he refused to join an effort to overrule the Warren precedent itself.

And since Stewart and White went in opposite directions on so many key issues, Powell was becoming the true swing vote. There was now someone else in the center who might provide a fourth or fifth vote for the liberals.

And another vote was softening up on the right. Blackmun seemed to be trying to push away from the Chief.

The four main death penalty cases had not resolved a fifth one
(Moore
v.
Illinois).
Lyman A. "Slick" Moore had been sentenced to death for a shotgun murder, but his appeal raised issues other than the "cruel and unusual" nature of the death penalty. With the death penalty now struck down, the Court had to decide these other issues— or Moore was doomed to life in prison.

Moore argued that he had been unfairly convicted. The prosecution had withheld from the defense the fact that the three principal witnesses who claimed to have heard a "Slick" brag of the murder had all told police that they didn't think this Moore was the same "Slick." A judge had also permitted prosecutors to wave a sawed-off shotgun in front of the jury, though the prosecution admitted at trial that it was not the murder weapon.

At conference, the vote was
7
to
2
to uphold Moore's conviction, with Marshall and Douglas the only dissenters. Moore would not get a new trial, but the death penalty decision in the other four cases would keep him from being executed.

The Chief assigned the case to Blackmun. As usual, Blackmun was late with his circulation. Douglas expressed his exasperation over the delay at conference. "Circulations from Harry are like returns in an election from rural counties—late," Stewart once said.

When the opinion finally came around, it said the information, if withheld, did not prove Moore's innocence, but only tended to show that he was not the same man who had bragged about the murder. Waving the shotgun before the jury, Blackmun stated, was not a sufficiently significant error to justify a new trial.

Marshall was upset. During his days of criminal-law practice, he had seen many men convicted by distorted presentations of the facts. He had a clerk prepare a detailed analysis of the evidence, challenging Blackmun's reading.

The identification by eyewitnesses had been crucial to obtaining the conviction and Blackmun was ignoring many of the facts damaging to their testimony. This was a miscarriage of justice. Marshall's analysis was circulated as a dissent. Blackmun responded in a set of footnotes arguing his own version of the facts.

Powell and Stewart quickly switched their votes, and Marshall needed only one more to take away Blackmun's majority. His friend Brennan would surely provide the fifth vote. Brennan, after all, had been a moving force behind a whole series of cases that required prosecutors to turn over all exculpatory evidence to the defense.

One of Brennan's clerks thought that if Brennan had seen the facts as Marshall presented them, he would not have voted the other way. He went to talk to Brennan and, thirty minutes later, returned shaken. Brennan understood that Marshall's position was correct, but he was not going to switch sides now, the clerk said. This was not just a run-of-the-mill case for Blackmun. Blackmun had spent a lot of time on it, giving the trial record a close reading. He prided himself on his objectivity. If Brennan switched, Blackmun would be personally offended. That would be unfortunate, because Blackmun had lately seemed more assertive, more independent of the Chief. Brennan felt that if he voted against Blackmun now, it might make it more difficult to reach him in the abortion cases or even the obscenity cases.

Sure, "Slick" Moore deserved a new trial. But more likely than not, it would result in his being convicted again. After all, Moore had a long record. He was not exactly an angel. Anyway, the Court could not concern itself with correcting every injustice. They should never have taken such a case, Brennan said. He felt he had to consider the big picture.