Bernard Schwartz is a law professor who enjoys rummaging through the papers of former Supreme Court justices, exhuming memoranda and correspondence among the justices and early drafts of their opinions. In Swann's Way Schwartz takes us step by step through the Supreme Court's consideration of Swann v. Charlotte-Mecklenburg School Board, a case of great political significance in 1971 because it announced for the first time the justices' position on court-imposed busing of school children to achieve desegregation. The central actor in the tale, who doesn't come off as well as he would like, is Chief Justice Warren Burger.
The Swann case came before the Supreme Court in Burger's second year on the Court. The case arose in Charlotte, North Carolina, where, 15 years after Brown, the great majority of black children were still attending schools that were either all-black or over 99 percent black. After many hearings and endless encouragement to the school board to devise a suitable plan of desegregation, the federal trial judge issued an order that included the busing of black and white grade school and high school students.
The year was 1970 and busing was already a national political issue. President Nixon, who had just appointed Burger, issued a most unusual "statement of policy," saying that while he, of course, favored integration, he believed that children should attend schools in their own neighborhoods and that he would not set federal policy to conform to activist lower-court decisions, unless the Supreme Court directly affirmed the use of busing.
Within a year after that policy statement, the Supreme Court decided the Swann case on appeal, upholding the trial court in full and issuing an opinion making clear that the remedial powers of the federal district judges were very broad -- as broad as necessary to "eliminate from the public schools all vestiges of state-imposed segregation." The justices held explicitly that the busing of elementary school children was plainly within the group of remedial tools available to the district courts. They spoke unanimously and the chief justice, who might have been thought likely to want to please the president who appointed him, wrote their opinion for the Court. The decision received enormous attention in the press.
From this skeleton one might infer that the chief justice was a person of principle and courage, a person who chose, at an unpopular moment, to stand firmly behind the federal district judges who were struggling to force southern school boards to integrate their schools. Not so, according to Schwartz. Over half the book is devoted to the deliberations and drafts of opinions that preceded the final Swann decision, with the principal focus on the chief justice. The picture drawn of Burger is not of a man of principle but one of a devious manipulator.
In brief, the story Schwartz tells is this. After the Swann case had been argued orally, the justices met in conference to discuss the case. Burger and Justice Hugo Black indicated unhappiness with the order of busing for grade school children, but a solid majority of the justices (Douglas, Harlan, Brennan, White and Marshall) plainly favored upholding the lower-court order and two others (Stewart and Blackmun) seemed to be leaning that way. Under long-standing tradition, at this point in the conference a vote would have been taken and the senior justice for the majority would have designated one of those in the majority to draft an opinion for the court. Instead, much to the consternation of the other justices, Burger avoided taking a vote and left the conference to draft an opinion to return the case to the lower court. He circulated his draft to the other justices with a memo expressing the hope that they would not circulate other opinions until efforts to reach "a common view" had been exhausted. As Justice Douglas expressed it in a later angry letter to Burger, "You who were a minority of two kept the opinion for yourself which the majority could not accept."
The opinion Burger circulated was offensive to most of the other justices not merely because of Burger's disregard of tradition and not merely because of the intended result, but also because of the "negative and indecisive" tone of the draft as a whole. The chief justice accepted the notion of integrated schools, but in many places in his draft, seemed to sympathize with white southern school boards which were being forced to undergo the trauma of integrating their schools.
Most of the rest of the book is devoted to describing the efforts of Justices Brennan, Stewart, Harlan, and Douglas to alter Burger's opinion. The easy part was getting Burger to change the result: he backed down when he saw that a clear majority favored affirming the lower-court decision. The hard part was undoing the half-hearted and negative tone of the opinion. Months were consumed as Burger went through five more drafts, avoiding additional conferences at which the clear sentiment of the majority would have been expressed and circulating new versions of the opinion in which only some of the changes he assured the justices he would make were actually made. Finally, the other justices, with many other important cases awaiting decision, shrugged and gave up, having obtained the affirmance they wanted but still dissatisfied with much of the language of the opinion. Within an institution that depends on mutual trust and respect, Burger had offended his colleagues by being high-handed.
Exactly why did Burger behave the way he did? Sadly, although Burger is his central character, Schwartz barely tries to answer that question except by innuendo. The kindest reading of Burger's actions would be that he knew the court had tried to speak unanimously in major school desegregation cases, saw that Justice Black was leaning toward an even more conservative position than he on the issue of busing, and believed that he was the person best situated to craft an opinion that all the justices could join.
The motive Schwartz invites the reader to infer (and, in fact, the one that seems most probable) is that Burger exploited his power as chief to get as much of his own view as he could into the opinion, knowing that the outcome would be controlled by others. He also, Schwartz suggests, banked cynically on the pressure the other justices would feel not only to speak unanimously but also to be polite to a new chief justice.He also wanted to make sure, at almost any price, that a decision as important as this one came out in his name. Seventeen years earlier, Chief Justice Warren had written the Brown decision with deep conviction. Burger, with or without conviction, was determined to write Swann.
Just as the book is short on analysis of the motives of its central character, so it is short on any other kind of analysis. In large part the book simply traces the progress of Burger's drafts, with whole chapters devoted to relating with care the changes in language from one draft to the next. Since neither the first draft of the opinion nor the last is great literature and since the progress from draft to draft does not mark even an honest struggle with ideas but just a struggle for control, much of the book holds little more interest than a book that traces a piece of tax legislation. The final version affects us all, but how it got that way is likely to be of interest only to a few scholars. Even the tale Schwartz tells is not a new one. Bob Woodward and Scott Armstrong tell the story of Swann in much shorter compass in The Brethren. One small achievement of Schwartz's book is to make clear that Woodward and Armstrong , got this particular tale of pettiness essentially right.