The Brethren (70 page)

Powell's clerks, in their turn, were struck by their boss's tender manner. He seemed to have a thousand friends. The clerks referred to him affectionately behind his back as "Lew."

Powell felt fiercely competitive with the other Justices. The last place he would go for assistance with a sticky legal problem was down the hall to another chambers. He either consulted the law books himself or worked it out with his clerks.

After two and
a
half years on the Court, Powell remained ambivalent about life as a Justice. "You don't get
a
sense of power here," he confided once. He found no dramatic moments, no emotional highs like those in a trial courtroom. At the Supreme Court, no cannons went off. Even the Nixon tapes,
a
monumental case, had not given him the moment of emotional release normally associated with great tasks.

As a young student studying history, Powell had learned that military men and lawyers ran the world. He had no desire to be a military man, so he became a lawyer. Once, Powell invited Washington Redskins football star Larry Brown to lunch at the Court.

Brown asked Powell if he preferred being
a
lawyer to being a judge.

"Would you rather be
a
player or
a
referee?" Powell replied.

As the beginning of the term approached, the Chief scheduled the regular start-of-the-term cocktail party and get-acquainted session for the new clerks. There were more women clerks at the Court this term than ever before— Brennan, Blackmun and Powell had each chosen one for the first time. All three of Bazelon's clerks from the previous year were at the Court; eleven of the twenty-nine clerks had clerked at the U.S. Court of Appeals for the District of Columbia; and an overwhelming majority of the new clerks were liberals, products of the antiwar Watergate period. Many were already friends and all were busy forming their own version of an old-boy network. Cynical as they might wish to seem, however, many of them were taken aback by the irreverence of the clerks of the previous year toward the Justices and the Court.

The party provided the first glimpse of Douglas, already
a
legend White still looked like a football halfback. Rehnquist was young and jolly, flaunting his informality. Soon the Chief took the floor, welcoming everyone and expounding on the history and traditions of the Court. He was, several clerks reluctantly admitted, impressive.

Burger turned the floor over to Brennan, a true hero to many of the clerks. A gentle man, smiling ear to ear, the great civil libertarian began slowly. There is one responsibility that all of them—Justices and clerks—shared, Brennan said. That was to preserve, at all cost, the confidential nature of the internal workings of the Court. The Justices, Brennan said, trust that the confidences shared with the clerks will be respected. A hush fell over the room.

Never, Brennan said, has any news story that leaked from the Court been traced to a clerk. Should anything ever leak, that bond of trust would be broken. Justices would never again be able to enjoy the same confidence with clerks. Remember, he lectured, reporters use the same public cafeteria as the clerks would be using this term, and they had been known to follow clerks through the line to eavesdrop. He had already informed his own clerks not to talk to reporters under any circumstances; even a "no comment" could be misconstrued by a reporter. "I do not talk to reporters at any time, at any place, on any subject," said Brennan. Finally, he stepped aside and the party continued, subdued, for another half hour.

Some clerks were stunned. Was the author of so many important First Amendment opinions so paranoid and contemptuous of the press? The clerks could believe that Brennan was sincere about the need for confidentiality. But why turn a simple ground rule into a rebuke?

Brennan later told his clerks that the conference had insisted that he, as senior Justice, give the briefing since the Chief had delivered a diatribe on security during the previous term which had been too severe. Brennan said that he had felt obli
ged to overstate his case; but h
is clerks knew that Brennan
was
paranoid about the press.

The term got off to a relatively good start for Douglas. Relations were better with two of the perennial irritants in his life—his clerks and the Chief.

In an early immigration case
(Saxbe
v.
Bustos),
the conference was deadlocked
4
to
4,
with the Chief reserving his vote. Douglas drafted an opinion that allowed an increase in immigration of day workers from Canada and Mexico. Despite a disinclination to beg for votes, he walked over to Burger's chambers and left not long after with the Chief's join memo in hand.

Douglas's three clerks were working day and night to answer his queries as fast as humanly possible. At least once they brought sleeping bags to the office and spent the night to meet a deadline.

No clerk was fired in the first months, though early in the fall one of them had committed the
faux pas
of substantially reorganizing one of Douglas's drafts. When he had seen the changes, Douglas leaned on his buzzer summoning the clerk. Sitting quietly at his desk, Douglas said only: "I can see you've done a lot of work, but you are off base here. If and when you get appointed to the Supreme Court you can write opinions as you choose."

The clerk was surprised by the lack of severity.

On Tuesday, December
31,
Douglas came to his chambers wearing a tweed hat with
a
wide brim. He was off that afternoon to Nassau for
a
New Year's vacation break. Though he loved to travel, Douglas didn't really want to go south at this time. He preferred cooler climates, and because he had a bronchial infection his doctor had recommended that he not travel at all. But his wife, Cathy, had wanted the trip.

Douglas called in his clerks. The next few days would be a slack period, he said. They could take some time off if they wanted.

The clerks were flabbergasted. The clerk selection committee had warned that Douglas granted no vacations whatsoever. But Douglas was clearly in a holiday mood. He packed his briefcase, put aside a popular novel, James Michener's
The Drifters,
and after wishing his secretaries
a
Happy New Year, went to meet his driver for the ride to National Airport.

They arrived in balmy Nassau in the early evening. Once they had settled in their hotel room, Cathy went to the lobby to buy something and returned a few minutes later. She found her seventy-six-year-old husband collapsed on the floor. Dazed but still conscious, Douglas was having trouble moving his left arm and leg. He was taken to a hospital, and American diplomatic officials in Nassau were informed.

The Chief was at a New Year's Eve party when he received word that Douglas had been stricken. He could learn only two details. It looked like a stroke, and Douglas was in serious condition. The Chief reached President Ford by phone about
10:30
p.m
. in Vail, Colorado, where the President was on his annual skiing vacation with his family. Within an hour, at the President's direction, a jet transporting Douglas's personal physician, Dr. Thomas Connally, was on its way to Nassau. The doctor quickly decided that it would be best to get Douglas back to the United States, where he could receive better care.

As they prepared Douglas for the flight to Washington, Cathy told him that President Ford had sent the plane for his trip back. "My God," Douglas said groggily, "you know they'll drop us in Havana."

When Douglas finally arrived at Walter Reed Army Hospital, he was immediately put into intensive care. Douglas's staff at the Court received scant information. Abe Fortas, the former Justice and one of Douglas's closest friends, visited Douglas at the hospital and stopped by his chambers on Thursday. Fortas told Douglas's clerks that their boss might be back in three to four weeks.

The following Monday, Cathy called Marty Bagby, Douglas's senior secretary. The Justice, she said, was "hollering for Mrs. Bagby." Traffic was snarled because of a snowstorm, and it took Bagby some time to reach Walter Reed. When she entered Douglas's room, he was sitting up in a wheelchair, wearing a checked shirt he had packed for the Nassau trip. "What took you so long?" he asked.

That Monday, January
6,
the eight other Justices gathered for a special conference. What action, if any, should they take in Douglas's absence?

There were no formal rules on the participation of a disabled Justice. Technically, he could vote on all cases. A Justice did not have to attend oral argument or listen to a tape of it. He did not even have to attend conference. He could send his conference vote by memo, or through another Justice. But a sick Justice was a handicap. The really tough cases, cases on which the Court was closely divided, could not be decided if one Justice was unable to vote, or if there was a chance that he might die or retire before the decision came down. Brennan had once said that a disabled Justice was almost as bad as one you disagreed with.

The Justices approached the situation carefully. There was nothing more delicate. Each man was implicitly threatened by the v
ery notion of the others determ
ining the fate or power of one of them. Worst of all was the uncertainty. Douglas might recover quickly and be back soon. They agreed to delay arguments in five cases in which Douglas was likely to be the swing fifth vote, rescheduling them for later in the term.

On January
27,
Douglas was removed from the seriously ill list at Walter Reed and his condition was listed as satisfactory. One of his clerks and a secretary spent most of each day at the hospital with him. At least superficially, Douglas kept his hand in the affairs of the Court.

But when Brennan visited his friend at Walter Reed in late January, he saw that the fire and passion and energy were gone. Douglas's speech was impaired; he had difficulty enunciating certain words. Cooped up, he was confused about the time; waking in the middle of the day, he often thought it was morning. It was clear to Brennan that Douglas's return was not imminent.

On Thursday, January
30,
the Court released its February argument calendar. Some of the cases postponed from January were now to be rescheduled. Brennan was nervous; the conference could wait no longer. Then, on February
11,
six weeks after Douglas's stroke, Marshall fell ill with pneumonia and was sent to Bethesda Hospital for treatment. With his two liberal colleagues now hospitalized, Brennan had serious cause for worry.

Douglas's prospects were not good, and who could tell about Marshall—a sixty-six-year-old man who was overweight, smoked heavily, at times drank too much, and had soured on his work. But Brennan was determined to appear upbeat He gathered the law clerks of both Douglas and Marshall in his office with his own clerks. He was nurturing, confident and open. They would keep things going, he told them. The nine clerks, working together, would help him keep on top of any developments at the Court. His own clerks knew that Brennan was less than confident. Each time the Chief passed at conference, each time he changed his vote, each time he circulated a stupid memo, Brennan's irritation grew. His clerks thought that every time he looked at Burger, Brennan was reminded of how much he missed Warren.

One day, Brennan was giving a detailed conference briefing to his clerks. He began a review of the vote in a particular case. He explained how White voted, holding up his thumb. Then, with his index finger, he indicated Powell's vote. Skipping his middle finger, he continued to count. He saved the Chief for last. "And the Chief . . ." Brennan smiled wryly and raised his middle finger in an obscene gesture.

Brennan felt that he got terrible assignments from the Chief. One decision he was assigned to write
(Antoine
v.
Washington)
addressed the question of whether Indians in Washington state could hunt and fish in the off season. The answer turned on an interpretation of an executive order issued by President Ulysses S. Grant
102
years before. Brennan seethed at having to write this "chickenshit case." He had a solid majority of six, including the Chief, but typically, the Chief had not sent in his join memo, even though Brennan's draft had been in circulation for several weeks.

Late one afternoon at about four o'clock, just before Brennan planned to leave for home to see his ailing wife, the phone rang. The Chief wanted to see Brennan on the Indian case. Brennan went down and waited. The Chief was tied up with other business, his secretary said. Brennan returned to his office, only to receive another call an hour later. "Dummy wants me," Brennan told his clerks in disgust as he walked out the door.

At Burger's chambers, Burger showed Brennan several words he wanted added to a long paragraph in the draft. Brennan said he would consider the addition. Then he stomped back to his chambers and summoned his clerks. They had never seen him so angry. "Here is his change," Brennan said. "What the fuck does it mean?"