The Brethren (54 page)

Stewart wasn't working too hard. The joke around the Court was that he and Marshall passed each other in the corridor most days just before noon—Stewart on his way to work, Marshall on his way home. But Stewart paid close attention to what was going on, and his clerks knew that if they could engage his interest, he would swing into action.

One of Stewart's clerks took up the cause of a federal prisoner serving twenty years for bank robbery
(
Fontaine
v.
U.S.).
The man alleged that his guilty pleas had been coerced through physical abuse while he was in the hospital suffering from a gunshot wound, heroin addiction and mental illness. The record gave some support to his claim that these factors had caused him to waive his rights for
a
lawyer and plead guilty. The Court was going to deny cert, until Stewart circulated a long dissent from denial of cert that his clerk had prepared. The conference later voted
8
to
1
to direct the district judge to grant the man a hearing, shaming some of the clerks in the other chambers for their failure to discover the possibility that the allegation of coercion might be valid.

But certain issues drew only scorn and indifference from Stewart. In one case, Ohio and Kentucky, divided by the Ohio River, could not agree on their common boundary. An
1820
Supreme Court case put the river in Kentucky and therefore was precedent. But Stewart, who came from Ohio, told his clerks that he had another reason for voting against his home state. "My father always told me at the breakfast table that the Ohio River was in Kentucky."

Another time, Stewart was assigned to write a Fourth Amendment car search case
(Schneckloth v. Bustamonte).
He was happy with the assignment and wanted to write it in a way that would avoid raising potentially troublesome questions. He assigned one of his clerks to draft the
Schneckloth
opinion, and a long draft was duly returned to him. Weeks passed and there was no comment from Stewart, no instructions for rewriting, no word of approval or disapproval. It had not been sent to the printer. Where was
Schneckloth?

Stewart's other clerks began to make jokes about the missing opinion. "Have you seen
Schneckloth?"
became a familiar remark around his chambers and then the Court. The clerk who had drafted it, a meticulous and devoted lawyer, was plagued by the missing
Schneckloth.

He finally decided to ask Stewart. He went into his office. "Have you seen
Schneckloth?"

"Yes," Stewart said, pulling open his top drawer. "I can see it any time I want."

The clerk was not sure he understood, but he concluded that Stewart was holding the case so he could circulate it late in the term. Caught in the spring crush, there would be little time for it to trigger yet another grueling debate over the Fourth Amendment.

Schneckloth,
one of the first cases argued, was among the last to come down.

In spite of his victory in the Denver school case, Brennan was unhappy about his first full term with the four Nixon appointees. His clerks had the feeling that a sense of despair had overtaken him. Brennan had dissented forty-seven times during the term, more than he ever had dissented before.

It was not only that Brennan had values different from those of the Nixon justices, but now he was often not even a part of the real debate. Stewart and White had taken over the direction of the Court along with the Nixon appointees, Brennan concluded. They were the mainstream. Brennan was the outsider, and he was pained at the direction the Court was taking.

Brennan felt that his greatest achievements on the Court were the legislative reapportionment cases of the
1960s—
the "one-man, one-vote" cases. Those decisions required that state legislative and United States congressional districts be drawn and redrawn to include the same number of voters, so that each person's vote would count equally. Even
3
percent deviations were not permitted. Under a
1969
decision, the states were required to make a "good faith effort to achieve precise mathematical equality." Half the states had achieved variations of less than
5
percent.

Earl Warren had often called those cases the most significant decisions of the Court during his tenure, despite the fact that Brennan had written many of the key opinions. Brennan was the father of reapportionment.

But this past term, in a case involving the state of Virginia
(Mahan
v.
Howell),
a new majority of Burger, Rehnquist, Blackmun, Stewart and White had allowed a reapportionment scheme that included a
16.4
percent variation in the size of the districts. After conference on the case, Brennan returned to his chambers near tears. "I'll talk to you boys later," he told his clerks, leaving at once for home.

Most irritating to Brennan was that the Court was adopting a secret internal rule of thumb to use as a guide for future cases, rules that they would not publish. The new apportionment rules for state legislatures would permit variations of less than
10
percent. Variations between
10
and
20
percent would be accepted if the lines were drawn with good reason, for example to conform with city or county boundaries. Only variations over
20
percent would not be permitted. Brennan was distressed that the Court was so willing to shed its idealism. He knew local politicians. They would do anything to redraw district boundaries to ensure their re
-
election.

Brennan's clerks thought he might be ready to resign. He had taken to calling Burger a "usurper," and he became wistful even at the mention of Earl Warren. When he talked about Burger, he would often say, "The Chief—and I want to draw the distinction with the Super Chief." At his regular
9
a.m
. coffee session with his clerks and secretary, Brennan began to dwell increasingly on the past.

The Chief was intensifyin
g his efforts to cut back on the Court's work load, Brennan complained. Under Warren, the Court had done more for social justice than the Congress. Burger cared more about efficiency. Almost from his first day, he had been complaining about the Court's case load. He had appointed a committee of professors and well-known lawyers to study the problem, and his committee had proposed a new "National Court of Appeals" to weed out nearly
90
percent of the petitions to the Supreme Court.

While the proposal was being debated in legal circles, Burger decided to attack the problem from within. Burger thought his clerks had to spend too much time reviewing the cert petitions and preparing summations for him. Since each chamber had to review roughly
4,500
petitions each year, Burger proposed that they pool their efforts. The cert petitions would be divided equally among the clerks of all chambers, and summary memos and recommendations would be circulated to each of the Justices. Each chamber would have only one ninth of the work.

Powell liked the idea. His law firm had been vastly better organized than the Court. A cert pool would improve efficiency. Rehnquist, Blackmun and White also agreed to join. With fewer certs to prepare, the clerks would do a better job on those they were assigned. Stewart decided to leave it up to his clerks. They were the supposed beneficiaries of the new pool. His clerks said no. They didn't want other clerks making recommendations to their Justice.

Brennan was vehemently opposed. The Chief's proposal, he told his clerks, was "outright manipulation." Burger was trying to expand his empire. With control of the paper flow, he would gain control of the Court's work. And neither the Chief's clerks nor Rehnquist's could be trusted to make a neutral presentation of the facts or issues in a petition.

Brennan's appraisal was that the case load problem was a myth anyway. It had a lot to do with the Chiefs intellectual insecurity. Piles of cert petitions, even with summary memos from his clerks, intimidated him. Brennan rarely used his clerks on the petitions. He did them himself. It was like separating the weeds from the flowers in the garden.

Brennan was so irritated that he made one of his few public speeches since Fortas resigned. He described some
cert petitions from the term. They posed questions such as:

"Are Negroes in fact Indians and therefore entitled to Indians' exemptions from federal income taxes?"

"Are the federal income tax laws unconstitutional insofar as they do not provide a deduction for depletion of the human body?"

"Does a ban on drivers' turning right on a red light constitute an unreasonable burden on interstate commerce?"

Brennan spent maybe ten or fifteen seconds on these petitions, and after sixteen years on the Court, he had developed a special feel for recognizing the important cases.

Douglas and Marshall also declined to join the cert pool. It was organized with the four Nixon appointees and White as members.

1973 Term

In July
1973,
Congresswoman Elizabeth Holtzman, a New York Democrat, and four Air Force officers asked the federal courts to stop the United States from bombing in Cambodia. A district court in New York issued an injunction halting the bombing, but the injunction was subsequently lifted by the Court of Appeals. The American Civil Liberties Union, representing Holtzman and the Air Force officers, brought an emergency appeal
(Schlesinger v. Holtzman)
to Marshall as Circuit Justice, since the Supreme Court was in recess. On July
30, 1973,
Marshall held a closed-door hearing in his chambers. Although he was predisposed to stop the bombing, Marshall also thought that it would be irresponsible to do so if it were only to be reinstated by a majority who would refuse to decide the constitutionality of the war in Southeast Asia. More importantly, the matter would be resolved within two weeks when congressional appropriations financing the war would end. Marshall decided to be cautious, and he issued a short order refusing to halt the bombing.

Since the Court was not in session, the A.C.L.U. was free to take the matter to another justice. If the second justice allowed the bombing halt, it would remain in effect until the entire Court could consider it in September. Accordingly, the A.C.L.U. immediately dispatched an attorney to Goose Prairie in the hope that Douglas would give them a more sympathetic hearing. Douglas had continued to press the war issue before the Court. He had dissented from cert denials in war-related cases and had challenged the others to face up to the U.S. involvement in Southeast Asia. Now, Douglas agreed to hold a hearing on the request and traveled fifty miles down from the foothills of the Cascades to the courthouse in Yakima, Washington.

The government's attorney suggested that a confrontation should be avoided.

"We live in a world of confrontations," Douglas replied. "That's what the whole system is about. I don't enjoy these confrontations myself. I'd rather be up at Goose Prairie."

After the hearing Douglas decided to end the Court of Appeals stay. The district court could then proceed to order a bombing halt. It was already late in the afternoon, and Douglas phoned the Court in Washington to leave word that the printers should not go home. He dictated the first part of the opinion from a truck stop on the way to Goose Prairie. "Do you have that?" he asked. His secretaries struggled to hear him over the din of tracks in the background. The exchange was repeated again from another phone as he proceeded down the road. He read the last section from Whi
st
in' Jacks, the final rest stop, and last public telephone, before Goose Prairie.

Douglas compared the case to
a
capital punishment case:

The classic capital case is whether Mr. Lew, Mr. Low, or Mr. Lucas should die. The present case involved whether Mr. X (an unknown person or persons) should die. No one knows who they are. They may be Cambodian farmers whose only "sin" is a desire for socialized medicine to alleviate the suffering of their families and neighbors. Or Mr. X may be the American pilot or navigator who drops a ton of bombs on a Cambodian village. The upshot is that we know that someone is about to die.

Since denial of the application before me would catapult our airmen as well as Cambodian peasants into the death zone, I do what I think any judge would do in a capital case.

Douglas's order and opinion were filed at the Supreme Court the next morning, August
4.
The government immediately went back to Marshall, asking him to prevent the district court's order halting the bombing from going into effect.

Marshall found himself in a dilemma. Normally a single Justice would never overrule another. It was one thing to act when another Justice had refused. But once an order had been issued by a Justice, it was up to the full conference to decide whether to reverse it.