The Brethren (69 page)

He sent his messenger, Harry Datcher, to get the clerks, whom he barely knew. "He wants you guys to come in for drinks," Datcher told the three young attorneys. Datcher got the liquor and the glasses, and brought them into Douglas's office.

Douglas had an aperitif wine. It was about all he could drink; he had an allergic reaction to other liquors. The Nixon case would be coming down tomorrow, he t
old them. Nixon had lost, 8 to 0
.

One of the clerks wondered about the latest draft of Douglas's opinion, which they had seen.

"It seems a good idea to have only one opinion and have the Chief do it," Douglas replied. The President was not special. The matter was a straight criminal subpoena case. Everyone had privacy interests, but the President had no greater privacy interests than anyone else.

Douglas sipped his wine. There was no gloating, but the fact that he had invited the clerks for a drink made it clear that he was very happy.

The next morning, July
24,
the Court convened at
11 a.m.
Rehnquist was not present. Once on the bench, the
Chief took a few moments to pay tribute to Earl Warren, since there had been no meeting of the Court since his death two weeks before. Then Burger announced the case and began reading a summary of its major points in his best, most forceful voice. A silent, unanimous Court sat on either side of him.

Finally it was over, and the reporters raced from the courtroom.

Jaworski, who had fallen into a depression and had talked privately of resigning as Special Prosecutor, emerged from the Court to cheers and applause. "If I had to write it myself," he said, "I couldn't have written it any better."

After leaving the bench, the Chief took two copies of his work and wrote on each, "With thanks for long hours together, Warren E. Burger." He handed them to his two clerks. "Thanks again," he said.

Stewart told his clerks that the Chief's initial draft of the decision would have got a grade of
D
in law school. It had been raised to a
B.

In San Clemente, California, President Nixon picked up his bedside phone. His Chief of Staff, Alexander M. Haig, told
him
that the Supreme Court decision had just come down. Nixon had seriously contemplated not complying if he lost, or merely turning over excerpts of the tapes or edited transcripts. He had counted on there being some exception for national-security matters, and at least one dissent. He had hoped there would be some "air" in the opinion.

"Unanimous?" Nixon guessed.

"Unanimous," Haig said. "There is no air in it at all." "None at all?" Nixon asked. "It's tight as a drum."*

After a few hours spent complaining to his aides about the Court and the Justices, Nixon decided that he had no choice but to comply.

Seventeen days later, he resigned.

* See
RN: The Memoirs of Richard Nixon,
pp.
1051-52.

1974 Term

Af
ter the announcement
of the Detroit busing case, the Chief adjourned the Court until the first Monday in October. He was jubilant. Two of the Court's most important decisions had been handed down in two days, and both were his. But stories soon began to appear in newspapers suggesting that the Nixon tapes opinion was not the Chief's work, that it bore his name only as a matter of protocol. These stories were not detailed, but they all implied that Stewart and White had authored the opinion. The Chief had no intention of having his effort belittled. The rumors were lies.

Barrett McGurn, the Court's press officer, called in reporters on August
5.
He told them that the Chief had worked forty-one straight days at the Court drafting the Nixon case. His days had often begun at
8
a.m
., and he had worked until midnight, taking time out only to eat a meal at his desk. Cleaning crews had been allowed in the Chief's office once a week, only after all his papers and notes were locked away. There had only been one conference during the whole interval. It was obvious, therefore, that the Chief had not changed his vote, as some rumors had suggested.

McGurn's defense of Burger was buried inside the papers the next day, as front-page headlines reported on the contents of new Nixon tapes. This time they showed clearly that the President had plotted to cover up the Watergate scandal.

That same day, the Chief and his wife, traveling under the pseudonyms of Mr. and Mrs. Grant Cannon, left for a European vacation. The Chief disliked traveling in Europe during the summer. It was too hot, and there were too many tourists. But the summer recess was the only time he could get away.

The Burgers had been in the Netherlands only a few days when the Chief was summoned to an overseas phone call. It was Philip Buchen, a close friend of Vice-President Gerald R. Ford. President Nixon was resigning, Buchen said. Ford wanted the Chief Justice back the next day to swear him in as President

Burger told Buchen he would have to speak directly to the Vice-President Ford called him. It was true; Nixon was resigning. Could Burger see his way to return?

"Oh, I have to be there," Burger said, "I
want
to be there." Ford would be the first unelected President in United States history. It was essential, as a symbol of legitimacy, that the Chief Justice be present at his swearing-in.

An Air Force Boeing
707
was dispatched from Andrews Air Force Base to pick up Burger and his wife. It landed in Washington on August
9,
just in time for Burger to make it to the White House for the noon ceremony.

Government leaders and friends and relatives of the Vice President had gathered in the formal East Room and applauded as Burger and Ford entered.

"Mr. Vice President," Burger said, "are you prepared to take the oath of office of the President of the United States."

"I am, sir," Ford replied.

In less than a minute it was done.

"Congratulations, Mr. President," Burger said, shaking Ford's hand. He was the first to address Ford by his new title.

Burger stayed in Washington to attend President Ford's first address to a joint session of Congress the next week. He felt obliged to show the flag.

On August
12,
he and his wife flew back to the Netherlands. As guests of the United States ambassador in The Hague, the Burgers found their schedule crowded with appointments, dinners, interviews. In a discussion with the Dutch Prime Minister, Burger defended the tapes decision, saying that it "had not by any means weakened the presidency and on the contrary had strengthened it, since the Court's decision made reference for the first time to the doctrine of presidential privilege." The orderly transfer of power showed the resilience of the American constitutional system. This was "in substantial part due to the tone set by
President Nixon in his excellent, statesmanlike address of resignation," Burger said.

The Chief returned to the Court in September. This was a time for him to get his bearings, catch up on administrative work, and take a look at the coming term.

Kenneth Ripple, called "the Rip" by other clerks, would be Burger's chief clerk for a second year. Ripple exercised the Chief's authority on matters of format, paper flow, red tape, appearance, security and bureaucratic procedure. His memos were referred to as "Ripplegrams."

Ripple told the new clerks who were to work for the Chief that they were absolutely forbidden to speak with reporters. If a clerk was ever seen in the presence of a reporter, he would be fired. There would be no questions asked, nor any explanations accepted.

Ripple ran the cert pool like a drill sergeant for the five Justices who participated. Cert pool memos were only rarely given to the Chief directly. His copy was reviewed by one of his clerks and further condensed. A pool memo that ran longer than three pages was honed down to one. Important parts of the one-page summary and of the supporting documents were emphasized with yellow highlighter pen.

Once, the stenographic pool accidentally circulated photocopies of the highlighted summaries to the other chambers and the Chief's clerks panicked. The summary markups, as they were called, were supposed to be a secret. The clerks tried to retrieve the photocopies, but it was too late. Clerks around the Court hooted when they saw how Burger's memos were prepared. It confirmed what they had suspected. The Chief had neither the capacity nor the interest to digest even the simplest cert memo.

The other Justices still found Burger's preoccupation with administrative detail hard to take. When one of his memorandums on security arrived, Powell picked it up, tore it into shreds and flipped it into his wastebasket without comment.

On Friday evening, September
20,
Burger tried out a new bicycle his family had given him for his sixty-seventh birthday. After practicing a few figure-eights in his driveway, he set out on the darkened streets of Arlington, Virginia. Not far from his home, a car forced him off the road. His front wheel struck a high curb, and he was catapulted onto the sidewalk. He spent six days at Bethesda Naval Hospital recovering from a deep cut over his eye which required six stitches, a dislocated shoulder and five fractured ribs.

By the end of September the Chief was back at the Court, roaming the building as usual, suggesting a clean-up here, paint or polish there. But he looked drawn and ill. He had lost weight, his eyes were puffy, his skin was more wrinkled. He now looked his sixty-seven years.

Powell and his wife, Jo, returned to Washington right after Labor Day and went about getting settled for the new term in their Harbour Square apartment, which overlooked the Potomac River. Jo had made Powell give up smoking —not an easy step for a man who had long represented tobacco companies and who loved the smell of smoke. Powell was determined to stay in good physical shape. He walked one of two measured distances near his apartment every day. The first was a mile course that ran south along the river to Fort McNair; the other ran
1.3
miles northwest along the river to Hogate's Seafood Restaurant He had measured each route carefully in his car.

At his chambers, Powell would change from his street shoes into more comfortable Hush Puppies. His chambers were previously the office of the Clerk of the Court. He had gotten a peek at the remodeling plans before he moved in, and he sent a letter to the Architect of the Capitol. He preferred bookcases, he wrote, to the planned fake fireplace and chimney on the south wall.

The architect answered that it was "customary" for each Justice to have a fireplace, real or not.

Powell would knock on the hollow wooden chimney and tell visitors how even a Supreme Court Justice was impotent before government bureaucracy.

Part of these September mornings was devoted to answering mail—a letter to an old friend, a note to a former clerk, an order to his tailor for new suits. One task was the hiring of another law clerk, since each Justice was now authorized to have four. The choice was important to him. Powell was fond of noting that he spent more time with the other eight Justices than with his wife. Actually, he spent more time with his clerks. They b
ecame h
is family.

Powell thought it was important to find clerks who could write refined opinions, talented aides who would enhance his growing reputation as the closest approximation the Court had to another John Harlan. Unlike some other Justices, Powell did not have a clerk selection committee. He met the two dozen top applicants himself. Spencer Campbell served tea during the interviews. "Spencer," Powell would explain to his visitors, had been Hugo Black's messenger and "had been at the Court for nearly forty years—longer than anyone."

Powell had in mind a candidate for the current opening, but he sought his clerks' advice. They urged him to select a young lawyer, Joel Klein, with whom one of them had clerked the previous year for Burger's old archrival on the Court of Appeals, Judge David Bazelon.

Klein, bearded, anti-establishment, a Harvard Law School graduate
magna cum laude,
had made psychiatry and the law his field. While still at Harvard, he had worked at McLean, an exclusive mental hospital outside Boston. After Harvard, he flirted with the idea of medical school. Instead, he chose to spend a year as research assistant to Professor Alan Dershowitz, another former Bazelon clerk, at Stanford's Center for the Advanced Study of the Behavioral Sciences. He had worked there on a book on the legal theories of civil commitment, the involuntary hospitalization of those believed mentally ill. He was now working in Washington at the A.C.L.U.-sponsored Mental Health Law Project.

Powell quickly grasped that Klein's brash, outspoken style woul
d be a perfect counterpoint to h
is own genteel Southern background. He prided himself on hiring liberal clerks. He would tell his clerks that the conservative side of the issues came to him naturally. Their job was to present the other side, to challenge him. He would rather encounter a compelling argument for another position in the privacy of his own chambers, than to meet it unexpectedly at conference or in a dissent. Klein became Powell's fourth clerk, and Powell soon decided it had been a wise choice. He was pleased with his new clerk's fervent social concerns. Klein's raised voice and his wild gesticulations became part of chambers life.