The Brethren (79 page)

On December
19,
Ford stood in the courtroom to announce the appointment. As he spoke, there was a commotion to one side. Douglas was being wheeled in to see his replacement take the oath. After the ceremony, Ford walked up to Douglas, who sat in his wheelchair. "Good to see you, Mr. Justice," Ford said to his old opponent.

"Yeah. It's really nice seeing you," Douglas said sarcastically. "We've got to get together more often."

With that, Douglas nodded to Datcher, who pivoted the wheelchair and pushed him out

On Stevens's first day on the bench for oral argument, the Court heard a case
(Hampton
v.
Mow Sun Wong)
that had been held over from the previous term. It involved the constitutionality of a Civil Service Commission regulation that barred resident aliens from holding most federal jobs. At conference, the Court split
4
to
4,
along the same lines as it had the previous term. That left it up to Stevens, who turned out to have a singular position. He thought the discrimination against aliens was unconstitutional if it was based only on a Civil Service Commission regulation, as it was in this situation. But, he said, it might well be constitutional for Congress or the President to ban aliens from federal jobs. That meant the vote was
5
to
4
to declare the particular regulation in the case unconstitutional. Though technically no one fully agreed with Stevens, Brennan assigned him to write for the majority. Stevens held his first majority.

Stevens also quickly asserted himself on a number of other cases. In one
(Alexandria Scrap Co.
v.
Hughes),
he w
as on the minority side of a 6-to-3 vote. The majority opinion, requiring a highly technical application of interstate commerce laws to junked automobiles, was assigned to Powell. Stevens sent Powell a personal note with a legal memorandum attached
arguing his minority view. Persuaded by the Stevens
memo, Powell switched his vote. Two others, including the Chief, also switched, making the final outcome
6
to
3
the other way. In Brennan's chambers, the case became the "Powell, a/k/a (also known as) Stevens, opinion."

The next month, Burger assigned a criminal case
(Henderson v. Morgan)
to Stevens. The majority had voted to uphold a second-degree murder plea, even though the defendant maintained he had not been aware that he was pleading guilty to intentional murder for which he might receive a long prison sentence. After researching the case, Stevens decided that h
e had been wrong to join the ma
jority. A defendant's failure to comprehend fully the nature of the plea bargain was a denial of due process. He switched and eventually brought with him a majority of seven, all but Burger and Rehnquist.

In an obscenity case
(Liles v. Oregon),
Brennan, Marshall and Stewart issued their standard boiler-plate dissent from the denial of cert, objecting for the public record to the majority's refusal to hear and overturn obscenity convictions. Though Stevens was inclined to join Brennan, Marshall and Stewart on obscenity questions, he nonetheless wrote a short opinion
concurring
in the denial of cert, rare compared with the more common
dissent
from denial. Since the five-man
1973
majority
(Miller)
upholding obscenity convictions was still "adamant," he said, it was "pointless" to grant cert only to have the majority reaffirm its well-known view. He would not be—nor did the three dissenters want him to be—the fourth cert vote. Rejecting Brennan's policy of issuing stock dissents, he said, "In the interest of conserving scarce law library space, I shall not repeat this explanation every time I cast such a vote."

Brennan was worried about several pending civil rights cases. They involved suits brought under federal civil rights laws, seeking monetary damages from state officials accused of violating the due process clause of the Fourteenth Amendment, which states that no state shall "deprive any person of life, liberty, or property, without due process of law."

For Brennan, those thirteen words ensured basic rights. He believed in an expansive view of the clause. He interpreted the phrase "life, liberty or property" to mean very broadly that state power cannot be used against an individual without due process, without a hearing or guaranteed procedure to ensure fairness. In Brennan's view, this included protection against damaging a person's good name.

A case
(Paul
v.
Davis)
involving a Louisville, Kentucky, newspaper photographer named Edward Davis, posed the question squarely. Davis had been arrested for shoplifting. Before his guilt or innocence was determined, the local police circulated a five-page flier of names and mug shots of those "known to be active" shoplifters. Davis's name and picture were included.

Shortly after the flier was circulated, the shoplifting charges against Davis were dismissed. But the flier came to the attention of his employer, who warned Davis that he "had best not find himself in a similar situation" in the future. Davis sued the police chief for damages in federal court and won on appeal.

The Sixth Circuit had cited a
1971
Douglas opinion
(Wisconsin
v.
Constantineau)
that held that "reputation" was a protected interest under the Fourteenth Amendment. Brennan agreed with the appellate court decision, but he was concerned that his colleagues would not agree that the precedent was correct.

Stewart thought application of the due process clause had gotten out of hand. Too many things were being brought under the umbrella of protected "liberty" or "property." Not every objectionable act by a state official should be taken to federal court as a civil rights violation. It was an outrage that the police had circulated Davis's name and picture as a known shoplifter, but Davis had not lost his job as a result. Stewart felt that the proper remedy for Davis would have been to sue under a state law for libel and defamation. Since there was no such Kentucky law under which he could sue, he was simply out of luck. The issue still did not belong in federal court.

Moreover, Stewart felt trapped by a phrase that Rehnquist had convinced him to add to a
1972
opinion
(Bd. Of
Regents
v.
Roth).
Though it had seemed harmless to Stewart at the time, the phrase said that due process should be invoked only for those property interests specifically created by governments. The Court should not be in the business of creating new interests. Stewart was bound by his own precedent.

At conference, Stewart joined Burger, Blackmun, Rehnquist and Powell in voting against Davis's claim. In one case they could narrow the opportunities for civil rights suits, cut back on the scope of Fourteenth Amendment protections, reduce the federal case load and support states' rights.

Brennan, Marshall and White were in the minority. Since Stevens had not arrived in time for oral arguments, he did not participate.

Brennan was disgusted. Such an opinion would mean that police would be free to label anyone who was arrested a criminal, whether or not he was ultimately convicted. It meant that the Constitution did not protect an individual from being wrongly stigmatized. Brennan couldn't believe that all five in the majority would stick with a decision that was so clearly unjust.

Burger assigned Rehnquist to write. Rehnquist saw the
1971
Wisconsin case that the Court of Appeals had cited as precedent as the major hurdle that he would have to clear. In that case, a Wisconsin law prohibited the sale of liquor to anyone who was adjudged, because of his excessive drinking, to be
a
hazard to himself, to his family, or to the community. As
a
result,
a
woman's name had been publicly posted in all local liquor stores as
a
habitual drunkard. Douglas's majority opinion ruled that due process was violated by posting the woman's name without procedural safeguards, such as notice and
a
chance to rebut the charges at a hearing.

Rehnquist believed that he saw
a
way to circumvent the Wisconsin decision. The posting of the woman's name, he argued, not only harmed her reputation but deprived her of a right created by the state—the right to purchase and obtain liquor. The woman had lost more than her reputation. She had lost reputation plus the right to buy liquor. The latter was a right established by state law; reputation was not. In the present case, Davis had not lost his job. Reputation "standing alone," Rehnquist wrote, was not sufficient to require an additional hearing to meet the standards of due process.

At the beginning of the term, Brennan had told his clerks to scrutinize, word by word, all drafts circulated by either Rehnquist or Burger. Anything from Burger had to be gone over carefully both because there was no telling what to expect and because the quality of the work was usually substandard. Rehnquist, Brennan explained, often twisted the meaning of prior cases, or baldly ignored them when they supported the other side.

When Brennan received Rehnquist's draft in the Davis case, he quickly spotted his trick. Rehnquist's interpretation that due process could be invoked only when the issue involved "reputation
plus"
some additional right was a deception. In the Wisconsin opinion, Douglas had made it clear that the reputation issue was "the
only
issue present." A Rehnquist clerk admitted the draft was "the worst Rehnquist opinion ever." A Burger clerk agreed it was "terrible."

In a scathing dissent, Brennan attacked Rehnquist's "dissembling" and the "saddening denigration of our majestic Bill of Rights." But Burger, Powell, Stewart and finally Blackmun joined Rehnquist's opinion. The conference vote had held. Brennan's worst fears were realized.

Rehnquist was not through with his efforts to cut back on civil rights suits and broad interpretations of the Fourteenth Amendment. In another case
(Belcher
v.
Stengel),
in which a policeman had shot and killed two people, Rehnquist contended that this was not a civil rights case, but simply an accidental death. There were no Fourteenth Amendments—"life, liberty or property"—interests involved, he said. Stevens quickly sent a memo to the conference decrying Rehnquist's suggestion. It was absurd to say that there had been no deprivation of "life" when two people had been killed. After endless, esoteric discussion of what constituted "life, liberty or property," his memo was a breath of fresh air to the liberal wing. Eventually, the conference voted not to decide the case and dismissed it without an opinion.

Rehnquist was also convinced that the Court had helped the federal government usurp too much power from the states. Unhappily, there was little he could do about it since most of the states' rights issues had been settled by the Court a century or decades earlier. An important impediment to limiting the federal government's power was
a 1968
Court decision
(Maryland
v.
Wirtz)
that upheld application of a federal minimum wage law to nearly
3
million employees of state hospitals and schools. In the previous term, Rehnquist had argued, without much luck
(Fry
v.
U.S.),
that the Court should consider overruling
Wirtz.
He had wound up alone in dissent. He thought there was now another chance. The Court had before it a potentially more important case,
National League of Cities
v.
Usery.
Twenty-one states had challenged a
1974
federal law that extended minimum-wage coverage to another
3.4
million policemen, firemen and other public workers. The conference had deadlocked
4
to
4
in the previous term, since Douglas's vote had not been counted. The case had been reargued.

Rehnquist felt that if he could win this case, it would once and for all break the forty-year chain of decisions that allowed Congress to do virtually anything in the name of regulating interstate commerce. While this was a power expressly granted Congress by the Constitution, the federal regulatory bureaucracy had grown to staggering numbers under an increasingly expansive reading of the clause. Over the previous twenty years, the Court had held that much of the activist federal legislation governing labor relations, civil rights, environmentalism had been properly enacted under the clause.

Although he had dissented from the
1968
Maryland
v.
Wirtz
decision, Stewart felt bound by it as precedent Moreover, he had no intention of departing from his policy of not providing the fifth vote to overrule a Warren Court precedent. Precedent was precedent. Once a case like
Wirtz
was decided and announced, it was the law. And Stewart felt it was important that he should not be the fifth vote, particularly by joining the four Nixon justices, to overrule Warren Court decisions.