The Brethren (72 page)

The clerks finally turned to the sort of hairsplitting, literal-minded argument that appealed to the lawyer in Powell, to his legal fastidiousness. The Jacksonville regulation prohibited the showing of "the human male or female bare buttocks." As Blackmun had said earlier at oral argument, that meant a ban on all backsides, even those of a newborn baby. It was absurd.

By now, even Sally Smith, Powell's jovial, fiercely loyal secretary, had joined the discussion. Powell often found Smith a kind of good-sense barometer. They asked for her opinion. There was nothing wrong with a baby's backside on an outdoor movie screen, she said.

After further reflection, Powell decided to change his vote. The ban should be struck down on First Amendment grounds. He actually felt good about the switch. It had been the right kind of family conference. Everyone had had his say, and he—the pater familias, the senior partner, the corporate president, the school board head—had made the final decision.

Burger was surprised at Powell's vote switch, but he was alarmed when he saw Powell's first draft. It was a powerful opinion reasserting the prohibition of government regulation of aesthetic, political and moral expression. And before Burger knew it, Blackmun, and Douglas of course, had joined it, making it a 6-to-3 decision.

"What the hell is going on in Powell's chambers?" the Chief grumbled.

Burger announced that he intended to write a dissent, but for weeks failed to circulate it. Although Powell was angered that Burger would hold up a decision just because he disliked the result, he could do nothing without confronting the Chief, and he was not yet ready for that. In fact, Powell was determined to bend over backward to maintain good personal relations with all the other Justices. Burger finally let the case be announced.

Early in the term, Douglas had sent a memo to White suggesting that the Justices confine themselves to the simple and traditional phrase, "Please join me," when they notified a colleague of their willingness to vote for his opinion. Douglas had found the effusive praise in some recent memos distasteful. But Powell knew they all had their pride. In a December
4
join memo to Brennan's opinion on the Regional Railroad Reorganization Act cases, Powell dictated:

D
ear
B
ill
, Mindful of the reasons advanced by Bill Douglas in his letter to Byron, I reluctantly limit my comments on your fine opinion to "Please Join Me." Perhaps Bill [Douglas] will not mind if I add that I also admire his fine dissenting opinion. Sincerely,
L
ewis.

Powell's clerks surmised that "Lew" wanted to have it both ways: the majority opinion and the dissent were both "fine." It seemed to be his way of saying that the dispute was not personal, but only a matter of different legal reasoning.

Powell's effort to build ties with his colleagues seemed to pay off when he was assigned to write a group of border search cases
(U.S. v. Brignoni-Ponce; U.S.
v.
Ortiz;
and
Bowen v. U.S.).
Over a long lunch with Rehnquist, Powell became well aware that his opinion was not Rehnquist's natural position, but that Rehnquist had decided to go along to give Powell a solid majority. Powell really appreciated this "team playing." He often praised Rehnquist's flexibility.

Brennan was disturbed that Powell seemed indifferent to the Warren Court tradition of protecting low-income and minority groups. For over a decade, activist lawyers had been using the federal courts to attack social inequities that they could rarely address in the state courts or through the political process. Poor people had a nearly impossible time proving in federal court that a specific financial loss was caused by state or local government action. So, with the Warren Court's blessing, lawyers brought an increasing number of class actions that alleged violations of basic constitutional rights of entire groups without having to establish any one specific financial damage; all were damaged.

In one case
(Worth
v.
Seldin)
civil rights activists in Rochester, New York, had challenged a nearby suburb's zoning law. The ordinance required all homes to be single-family units on large lots, in effect barring low-income minorities. The challengers sued to overturn the ordinance as discriminatory. Two lower courts had denied them standing and refused to hold a hearing on their claims. Powell was assigned the majority opinion for his fellow Nixon appointees and Stewart, who agreed with the lower courts that the activists didn't have standing to sue in federal court. His opinion said the challengers had failed to allege and prove that they could not buy a particular residence; the case was hypothetical; the alleged injuries were intangible and speculative.

Powell's clerks were upset. They believed the case had less to do with fine legal definitions of standing than with something more basic. "My daughter can't find a decent place to live in Richmond any more," Powell said in response to their arguments. His instinct was to protect neighborhoods, and zoning was the traditional method.

As Stewart explained it to his clerks, the case called for a value judgment, not a legal one. The challengers were asking the courts ultimately to rule on economic differences that kept low-income minorities from living near affluent whites. "What they are really asking us to do is to overrule the capitalist system," Stewart said.

Powell's and Stewart's clerks tried to persuade their Justices to break from what one clerk called the "suburban majority" of the Nixon appointees and Stewart who seemed obsessed with protecting property rights. Neither would budge. Powell's clerks were particularly dismayed. They would have expected Rehnquist to deny disadvantaged minorities an opportunity to be heard in federal court, but not Powell. They agreed with Brennan, who had written in dissent that the whole issue of standing—keeping the case from being argued in court—was a ruse for the conservatives to avoid expressing their real feelings. Powell had written that the poor minorities were victims, not of the zoning law, but of the economics of the housing market, something the courts could do nothing about.

Brennan's dissent argued that Powell was using legal technicalities to prevent the disenfranchised groups from pressing their claims. And there was a Catch
22.
In order to have the standing to sue, you had to have the money to begin building a low-income housing project and be willing to go to the inconvenience of filing a plan so the local zoning board could reject it. In order for the poor to sue, they had to be rich. Brennan found the whole idea absurd and deceitful. It was the ordinance being challenged—not neutral economic factors—that insured that the housing market would never change. Even worse, Powell's opinion barred virtually everyone else from raising a claim on behalf of the poor. But Brennan couldn't break a single vote away from the majority.

Brennan saw this as an extension of a disastrous trend. The lower courts would get the message that the poor must prove precisely how they were affected before they would even have standing to bring suit in federal court. The Court would no longer be the final protector of rights, the guarantor of fair play.

With Douglas in and out of the hospital, the term's main cases continued to back up. There were many discussions at conference about what to do. Cases would be heard and decided, Douglas would participate and vote as he was able, the conference decided.* But there was a point at which the welfare, prestige and authority of the Court might come into play. As it became increasingly obvious that Douglas was physically and mentally disabled, a consensus began to develop. They would hold up on any
5
-
to
-4
decisions that had Douglas in the majority to see if someone in the minority would be willing to switch and make it
6
to
3.
If that did not happen, those
5
-to
-4
cases would be treated as if they were
4
-to
-4
ties, and they would be put over for re
-
argument the next term.

This strategy had the practical effect of nullifying Douglas's vote. It would be counted only when it did not matter. Douglas would not be allowed to affect the outcome of a single case. But uneasy as they were over taking this step, the Justices felt that it was necessary to protect the long-range interests of the Court. Douglas was almost certainly on the way out, and each of them realized that Gerald Ford was not likely to replace him with another liberal. If the new Justice was a conservative, all the recent
5
-to
-4
votes might easily go the other way. They were all horrified at the prospect of half a dozen major decisions being reversed in a year's time. The Court would appear to be a political institution, its decision less rooted in the law than in the personalities and politics of the individual Justices.

The Justices also decided that they would no longer permit Douglas to be the fourth vote to grant cert. The decision to cut Douglas out was informal, and it was treated as a deep family secret. But Burger nevertheless worried; if anyone ever l
earned about it, he would be

* Normally, during indefinite illnesses Justices did not try to participate in cases argued while they were gone. Douglas himself had not participated in many of the
1949
term cases when he suffered his horseback riding accident.

re
membered as the Chief who had let the conference take away a sick Justice's vote. To avoid the problem, Brennan several times cast his own vote as the fifth (provided he was not already one of the four) when Douglas indicated from the hospital that he wanted the Court to hear a certain case. Burger went one day to see Brennan to discuss the situation. "You are Douglas's best friend," Burger said. "Will you speak to him about resigning for the sake of the Court and his own health?"

Brennan was amazed. Douglas would never take that from anyone, including Brennan, he told the Chief. Douglas would get out of his bed and kick him out of the room.

But someone had to do it, the Chief said. Something had to be done.

Brennan explained that he did not have that type of relationship with Douglas. Douglas was very much his senior. When Brennan had come to the court, Douglas had already been there eighteen years. If anyone had that sort of influence with Douglas—and it was by no means clear that anyone did—it would be Abe Fortas or Clark Clifford. Perhaps the Chief should speak with them.

Afterward, Brennan related the story of Burger's visit to his clerks; he cited it as a further demonstration of the Chief's stupidity and insensitivity. The Chief had served nearly six full terms with Douglas. He should know that no one pushed Douglas around. Any encouragement or advice often had the opposite effect. And Douglas's illness had made him even more recalcitrant and unreachable. Moreover, it was the Chief who was holding up the Court with his slow votes, late circulations and delayed joins.

Brennan found it painful to visit Douglas in the hospital. Once Brennan had asked Douglas about his visitors.

Douglas had trouble articulating the name, but he said a "black man" had come to see him.

Who? Brennan asked.

A black man, Douglas said, straining to get the words out clearly. The black man that was on the Court with them.

My God, wondered Brennan, had Douglas forgotten Marshall's name? "Oh, you mean TM?" Brennan asked.

No, said Douglas impatiently, a "black man" and he spells his name with a "u."

Blackmun,
Brennan realized. You mean Harry Blackmun.

Yes, Douglas replied.

Brennan left, saddened beyond belief.

Douglas realized after months at Walter Reed Hospital that he was not making much progress; he decided that he wanted specialized treatment. After investigating several hospitals, he settled on New York University Medical Center and its famed Rusk Institute of Rehabilitation Medicine, known for its successes in rehabilitating stroke victims. But he would not go until he finished one piece of business at the Court.

On Monday, April
21,
Douglas was wheeled to the bench to hear oral argument. The case was
Fowler
v.
North Carolina,
the only death penalty case the Court had scheduled for the term. His presence there, straight out from the hospital, heightened an already electric atmosphere. The fact that the Court's leading liberal had dragged himself from his hospital bed was of enormous symbolic value to the foes of capital punishment. In the nearly three years since the
1972
decision, thirty-one states had passed laws restoring the death penalty. Two hundred fifty-three people in twenty-three states had been sentenced to death and were on death row awaiting the Court's decision.

Douglas sat through the ninety-minute session without asking a question. Then he returned to Walter Reed and left for the Rusk Institute the next morning. When he missed the death penalty conference, the other Justices, although avoiding a formal vote, were deadlocked
4
to
4.
They finally decided that the case should be put over for re
-
argument the next term.