The Brethren (73 page)

By May 11
, less than two months from the end of term, the Court had decided only half its cases. Douglas was holding things up. But there was one case
(O'Connor
v.
Donaldson
) that the Court could decide. It was the biggest of the term, as far as Burger was concerned. The case provided an opportunity to settle an old score with his arch
-
enemy, David Bazelon. In the
1960s,
on the Court of Appeals, one of the bitterest Burger-Bazelon feuds had been waged over the application of psychiatry to criminal law.

For years, in memos and in published opinions with Burger usually in dissent, the two judges had battled over the handling of insanity pleas in criminal cases..

Bazelon, who had at first taken a broad view of mental illness as a defense in criminal cases, later partially recanted. But Burger's- triumph ended there. Bazelon had remained determined to free as many involuntarily confined mental patients ("those nuts," as Burger called them privately) as could safely be released.*

One of Bazelon's worst opinions in Burger's view, was
a
1966
case
(Rouse v. Cameron)
in which he became the first appellate judge to suggest that civilly committed mental patients had a "right to treatment"—that the government, when holding people involuntarily, had an obligation to provide some kind of psychiatric care. Burger thought that this was dangerous nonsense, judicial activism at its worst. But Bazelon's decision had spurred a growing effort to establish such a right to treatment. It had not yet been ruled on by the Supreme Court. But in the fall of
1974,
the Chief and one of his clerks spotted a cert petition that provided a test of the issue.

Kenneth Donaldson, a former carpenter, had been involuntarily confined in a. Florida mental institution for fifteen years until his release in
1971.
Alleging that his constitutional rights had been violated, Donaldson had sued the doctors under the civil-rights statutes and had won
$38,500
in damages. More incredible to the Chief was that on appeal the Fifth Circuit not only had upheld the damages but also had written a sweeping opinion that said there was a "right to treatment" and firmly established
a
constitutional basis for it. Quoting extensively from Bazelon, the Fifth Circuit opinion was another of those omnibus opinions that established new rights the Chief was unable to find in his copy
of the Constitution. It was

* In one appeals court case
(Lake v. Cameron)
in 1966, Bazelon suggested that a senile, sixty-year-old woman be released from the notorious St. Elizabeth's mental hospital in Washington, D.C. He wrote that the woman might be given an identification tag, so that if she were found wandering in the streets of Washington she could be returned to her home.

"This city is hardly a safe place for able-bodied men," Burger retorted in a harsh dissent mocking Bazelon's majority opinion. If "she should be allowed to wander again, all of her problems might well be rendered moot either by natural causes or violence."

an
other new legal fiction created out of the Fourteenth Amendment.

The Chief had little use for the groups who were supporting Donaldson's claim—a collection of do-good organizations headed by the Mental Health Law Project. He looked forward to reversing this Fifth Circuit decision. It would be a substantial victory over a number of old opponents.

From the day the Court agreed to take the
Donaldson
case, Powell's clerk Joel Klein, who had worked at the Mental Health Law Project before coming to the Court, was a man with a mission. Klein felt the Court should uphold Donaldson's claim. Klein gathered the academic, medical and legal literature on the subject of right to treatment, including thirty law review articles, and saw to it that they got wide circulation within the Court. He missed no opportunity to drum up sympathy for Donaldson— whom, he told other clerks, he knew personally—and for the mentally ill in general. Donaldson was one of society's true victims, he said. The whole absurd system of civil commitment could be seen in this case. It was a classic instance of warehousing people who were thought to be mentally ill.

In
1957,
when Donaldson was forty-eight years old, his parents had him declared incompetent because they thought he had a "persecution complex" and exhibited signs of "paranoid delusions." The judge said Donaldson would be back from the mental institution in
"a
few weeks." He had stayed there, a prisoner of the state, for nearly fifteen years. Although he was not dangerous to himself or others, Donaldson was kept in a ward where
a
third of the inmates were criminals. During the first ten years of confinement, he regularly requested both grounds privileges and occupational therapy. Both were denied.

Donaldson's attending physician and chief tormentor was Dr. J. B. O'Connor. O'Connor had become clinical director and finally superintendent at the Florida State Hospital at Chattahoochee during the years of Donaldson's confinement there. O'Connor had blocked efforts by
a
Minnesota halfway house and by a college friend of Donaldson's to obtain his release. The Supreme Court had denied review of Donaldson's previous appeals for freedom in
1960, 1962,
1968
and
1970.

Bruce J. Ennis, Jr., Donaldson's A.C.L.U. lawyer, didn't hold out much hope for the case. But Ennis was joined in the appeal by one of Stewart's former clerks from the
1971-72
term, Benjamin W. Heineman, Jr., who was working at the Mental Health Law Project. Heineman helped Ennis develop his strategy. It looked as if the Chief, Rehnquist, and probably White, would be against them, since they were the most reluctant to put restrictions on state power or to intrude judicially on behalf of individual rights. Brennan, Marshall and Douglas were surely with them. Blackmun, who had written an opinion
(Jackson
v.
Indiana)
sympathetic to a right to treatment, seemed a likely vote.

Ennis presumed Klein was working on Powell, but Powell could not be counted as a vote. That left Stewart. Heine-man, one of Stewart's favorite former clerks, was to provide a window on Stewart's thinking. They could argue that Donaldson had been the victim of cruel and unusual punishment, but Heineman said Stewart would be more comfortable with a specific argument that Donaldson had been deprived of a fundamental human right, the right to liberty. In round-the-clock marathon sessions for ten days, Ennis drafted sections and Heineman rewrote them with an eye on Stewart's vote. The brief was submitted on January
4, 1975.

Ennis took Heineman to the oral argument on January
15.
He wanted Stewart to know that the case meant a lot to his former clerk. Ennis went to the podium and began to stress that the case posed a "narrow" question. The Chief interrupted at once. Ennis was wrong; the right to treatment was in question. The trial judge had claimed there was such a right when he instructed the jury, and the jury had awarded damages on that basis. The Fifth Circuit Court of Appeals had then upheld this. Wasn't Ennis asking that the Court affirm the Fifth Circuit opinion?

Well, yes. But Ennis indicated that the Court did not have to go that far. Since Donaldson was not committed for any crime, he was needlessly deprived of a basic "right to liberty." If the Court decided only that, they need not deal with the broad right-to-treatment question.

But the record was "undisputed" on the fact that Donaldson had refused the offered treatment, Burger interjected.

Just the opposite, Ennis said. His client, a Christian Scientist, had said that he preferred not to have electric shock treatment, but he had accepted medication until it was terminated by a hospital doctor. "We've tried to show this is a narrow case and properly understood does not raise any novel rights," Ennis said in conclusion.

At conference later that week, the Chief argued that they must decide the right-to-treatment question. The Fifth Circuit opinion should be written out of existence; the Court should not allow this nonsense to continue floating around in the lower courts.

Since Douglas was gone, Brennan spoke next. The main question was the award of damages, and Donaldson should certainly win there. Being locked away for fifteen years was a Kafkaesque nightmare. Brennan was not overly worried about what theory was used.

Stewart too felt great sympathy for Donaldson. But the doctors were not necessarily the ones who should be held liable. He was for reversing the award of damages against the doctors.

White was in accord with the Chief that the right of a mental patient to have treatment was the central issue. White said that he too felt there was no such right. Moreover, even if there were such a right, the doctors in this case had no way of knowing that it existed. He was greatly sympathetic to Donaldson, but saw no case against the doctors. Nonetheless, White wanted to limit the power of the state to confine non
-
dangerous people for treatment. That was unconstitutional. Instead of creating a new right for patients, the Court should let the states know they had no right to confine non
-
dangerous persons.

Marshall agreed with Brennan that Donaldson had been wronged and should get his damages. Blackmun was also in favor of the damages, but he was definitely not ready to buy a right to treatment. Powell too leaned toward affirming the damages award, but they had to identify a specific constitutional right that had been violated. Since he did not believe there was a right to treatment, the decision still needed a basis, and he hadn't found one. Rehnquist was for damages, but against a right to treatment.

When it came to assigning, Burger saw the essence of the case as the right-to-treatment question. The tally on his vote sheet showed five votes—White, Powell, Rehnquist, a shaky Blackmun and himself opposed to establishing it. There was also a majority for upholding the damages award—all but Stewart, White and himself—but the Chief thought a technical way could be found to write around that. The award for damages was hardly the issue. So Burger assigned the case to himself. He was sure that he could put together something that would satisfy everybody with the possible exception of Brennan and Marshall.

Brennan was astonished. It seemed that the Chief had missed the drift of the conference. The majority had upheld the damages award to Donaldson. The chief's intention was clearly to beat the right to treatment concept to a bloody pulp. No one at conference had agreed to that. Still, the conference had been so confused that Brennan thought there was little he could do. His hands were tied until the Chief's opinion circulated.

The Chief designated a clerk to start work on a draft. The research must be particularly thorough. Every possible argument, every case citation and reference should be used to counter the right to treatment. The lawyer for the doctors had made a good point. If the Court let the right stand, who would determine what was treatment? Or what was adequate treatment? Those questions would haunt the Court for years. The courts would soon have to manage mental hospitals as well as school districts.

The Chief
’
s clerk worked for nearly three and a half months on the opinion, and Burger spent many hours honing it. Finally, in mid-May, when he circulated a twenty-page printed draft, it was greeted with great interest throughout the Court. The introduction stated that the Court had granted cert "to decide whether there is a Constitutional right to treatment. . . ." Burger rejected Donaldson's broad claim that he was unconstitutionally confined —"We need not and do not decide whether [Donaldson's] confinement comported with the Constitution in every respect."

Burger then moved quickly to assault the right-to-treatment doctrine. Traditionally, he wrote, the states had power to care for the mentally ill. The first mental hospitals "were concerned primarily with providing a more humane place of confinement." This was necessary because there was a large range of mental illness for which no known "cure" existed.

It remains a stubborn fact that there are many forms of mental illness which are not understood, some which are untreatable in the sense that no effective therapy has yet been discovered for them, and that rates of "cure" are generally low.

There can be little doubt that in the exercise of its police power a State may confine individuals solely to protect society from the dangers of significant antisocial acts or communicable disease.

Citing the classic British legal historian Sir William Blackstone, Burger said the states also had the power to act as "the general guardian of all infants, idiots and lunatics." To limit this state power would be to read our "private notions of public policy or public health into the Constitution."

Burger had tailored a section to satisfy the majority who wanted to give Donaldson the
$38
,500
without setting a precedent. In instructing the jury, the trial judge had said Donaldson had a constitutional right to treatment, and that without treatment there was no justification for continued confinement. It was a clearly erroneous instruction, but the doctor's attorneys had failed to object. Under Rule
51
of the Federal Rules of Civil Procedure, the failure to object during trial was fatal. Thus, the improper instructions would have to stand. Donaldson would get his
$38,500,
but the opinion would make it clear that there was no right to treatment, and no precedent would be set for damages in such cases.