A court which is final and unreviewable needs more careful scruting than any other. Unreviewable power is the most likely to self-indulge itself and the least likely to engage in dispassionate self-analysis . . . In a country like ours no public institution, or the people who operate it, can be above public debate.
Warren E. Burger, U.S. Court of Appeals judge, to Ohio Judicial Conference on Sept. 4, 1968, nine months before being named chief justice of the United States.
On the morning of Feb. 4, 1969, Judge Warren E. Burger was in his spacious chambers on the fifth floor of the Court of Appeals on Pennsylvania Avenue. A handsome man with a proud mane of white hair and a smooth voice that rang with authority, Burger had frequently been in the headlines since President Dwight D. Eisenhower appointed him to the U.S. Court of Appeals for the District of Columbia in 1956. On that famously liberal court, Burger had become the most vocal dissenter. He was a law-and-order judge.
This morning, Judge Burger was getting ready to go to the White House, where President Richard M. Nixon, in office only two weeks, had invited him to swear in several high-ranking government officials.
When Burger arrived at the mansion, he was instantly admitted at the gate. The ceremonial swearings-in lasted only a few minutes, but afterwards the president invited Burger to the Oval Office. Nixon emphasized the fact that as head of the executive branch, he was deeply concerned about the judiciary. There was a lot to be done.
Burger could not agree more, he told the president.
The two men discussed an article Burger had written, in which he criticized the fact that criminal trials were often delayed months or even years, and that even after criminals were convicted, they remained free. There were too many appeals, retrials and other procedural protections. Decent people felt anger, frustration and bitterness, while the criminal was encouraged to think that his court-appointed lawyer would somewhere find a technical loophole that would let him off. Burger stressed that the U.S. system was presently titled toward the criminal and needed to be corrected.
Richard Nixon was impressed. To him, this was a voice of reason, of enlightened conservatism -- firm, direct and fair. Judge Burger knew what he was talking about. The president questioned him in some detail. Nixon found the answers solid, reflecting his own views, and supported with evidence. Though the meeting was lasting longer than he had planned, the president buzzed for his White House counsel, John Ehrlichman. Judge Burger, Nixon said, had constructive, solid ideas on the judicial system as well as for their anti-crime campaign.
"Please make an appointment with him to talk," the president told Ehrlichman, "and put into effect what he says." The chat had turned into a 70-minute meeting.
Ehrlichman left, concluding that if ever a man was campaigning for elevation in the judiciary, it was Warren Burger. He was perfect, clearly politically astute, and he was pushing all the right buttons for the president.
Ehrlichman proved prophetic. Just over three months later, Nixon appointed Burger, then 61, to succeed Earl Warren as Chief Justice of the United States. The Senate confirmed Burger on a vote of 74 to 3, and in June, on the last day of the Supreme Court term, Burger was sworn in. The Warren Era was over.
When the Court convened for the opening of its term on Monday, Oct. 6, 1969, the new Chief Justice's first major test was waiting.
The Nixon administration had requested a brief delay in submitting school desegregation plans in 33 Mississippi school districts. It was the first time in 15 years that the federal government had supported a desegregation delay in the federal courts.
Burger knew that attention would thus be focused on his first school desegregation case (Alexander v. Holmes County). It would be a hint of what Nixon's chief justice would do in the sensitive area of race relations. Burger saw the case as potentially the most important since the famous Brown decision, when the Court unanimously declared segregated schools illegal.
Since the case, the court had established a tradition of unanimity in school decisions. The justices had agreed it was essential to present the South with a unified position requiring desegregation.
On the morning of Thursday, Oct. 23, the courtroom was packed. Two hours, twice the normal time, had been allotted for oral argument -- the only part of the Supreme Court process open to public view.
Attorneys for the blacks in Mississippi argued against any delay, even five weeks, and wanted a strong desegregate-at-once ruling from the Court. They reminded the Court that its decisions ordering desegregation were not being obeyed in Mississippi and elsewhere.
Jerris leonard, an assistant attorney general arguing for the Nixon administration, contended that the short delay was neccessitated by the practical problem of ironing out the desegregation plans -- that the situation was complicated.
"What's so complicated?" Hugo Black, 83, the senior associate justice, asked testily.
Leonard backpedaled. "What I'm pleading with this Court is not to do something precipitious --"
That set Black off. "Could anything be precipitous in this field now?" He could not hide his contempt.
The next day, Friday, Oct. 24, the justices met in secret Conference to discuss the case. The Supreme Court, at this point, had only eight members. No successor had yet been confirmed to fill the seat left vacant by the resignation of Abe Fortas. As usual, no one was present at Conference other than the justices themselves.
Tradition dictated that the Chief speak first, that he outline the issues and briefly state his view. Then the discussion would proceed in order of seniority, starting with Black. Theoretically, voting would then take place in the opposite order, starting with the junior justice, Thurgood Marshall. But over a period of time, the formal vote had been dispensed with, since in expressing his views, each justice let it be known where he stood. If his position was firm, it amounted to a vote.
The Chief, sitting in his chair at the end of the table, led off the discussion of the Mississippi case. From what he had heard and seen, Burger realized that unanimity, the unwritten rule in these cases, was going to be difficult to achieve. Burger opposed delay for its own sake. Yet he didn't think the Nixon administration was being wholly unreasonable. Clearly there were practical problems -- and it was important that the plans be workable. If revised plans were submitted Dec. 1, five weeks from now, it would not be a disaster for school desegregation.
Next, the senior justice, Black, spoke. He strongly argued for immediate desegregation. The battles on school desegregation had torn apart his beloved South.
A five-week delay in Mississippi was not the issue, he said. It was symbolic. Any willingness on the part of the Court to grant a delay, no matter how slight, would be perceived as a signal.
All those federal judges with hundreds of similar cases in their courts, all those Southern politicians, and the Nixon administration itself, were waiting for the Court to show any sign of weakening in its resolve. To appear to waver, even for a second, would be a betrayal. Black attacked Nixon and his administration bitterly for being the first administration to support delay. They were allowing the South hope of further evasions.
All that was needed in this case was a short, simple order, Black argued, not a written opinion explaining their reasons. There had already been too much writing over the years. To involve the Court in debating details or specific plans would be disastrous. That was exactly what the proponents of delay wanted. There must be no mention of plans in the order, or of timetables. Black wanted unanimity as much as anyone, but if the Court's order mentioned the word "plan," he would dissent. There must be nothing that school districts or the Nixon administration could graf onto for another round of quibbling.
"If anybody writes," Black reiterated, "I dissent."
There was a moment of stunned silence. A dissent by Black, a giant of the Court, a historic figure, would make it look like the Court was in retreat. The collapse of unaminity would give new hope to the South's "never" faction. Several justices spoke up out of turn to ask Black just how the Court could expect to enforce an order that simply demanded desegregation "now." Black refused to discuss it. "You do what you want, and I'm going ahead," he said.
William O. Douglas was the next to state his views. The 71-year-old radical libertarian's position was clear to the others. Douglas would support Black.
John Harlan, the next in order of seniority, sat quietly chain-smoking Larks. He had been scrupulously attentive during Black's tirade. Harlan was the quintessential patrician, from a wealthy family, private schools, then Princeton and Oxford and a Wall Street law firm before being appointed to the Court by President Eisenhower. He was generally unflappable and unfailingly courteous. Despite -- and also because of -- his near blindness in the last few years, Harlan was the Court's hardest working member. He read about 150 words a minute, bent over, his eyes nearly touching the paper. Yet he was the Court's most prolific writer. No matter how insignificant the disagreement or how minor the case, Harlan felt compelled to spell out his views for the sake of intellectual honesty.
He made one exception to that rule: school desegregation cases. In those he followed the unwritten rule of unanimity.
Harlan was offended by Black's speech, not because of the attack on Nixon -- that was just Hugo -- but because it would be preposterous for the Court just to say "do it now" without offering any reasoning.
Black's challenge to the Court was an ominous sign. For years, while presenting a public face of unanimity on desegregation matters, internal disagreements had been festering among the justices. They had subordinated those disagreements to maintain their united front. Harlan felt that this might be the case where their differences would become public.
Harlan told his colleagues that he agreed that the delay requested by the Nixon administration should be rejected out of hand in strong language, but he felt Black was overlooking the practical considerations. He wanted the order to be accompained by a well-reasoned opinion -- something for the lower courts to follow and understand.
Harlan was deeply suspicious of Nixon's motives. To grant a five-week delay, as Burger seemed to favor, would send the wrong signal. Harlan wanted to send a strong message to both Nixon and the South that the Court was not backing off. Then Harlan laid down his own challenge. He wanted unanimity, but if Black wrote a separate opinion, he, too, would write separately.
William J. Brennan, the most energetic advocate for the liberalism of former Chief Justice Earl Warren, was next. He was disturbed to see the Conference splintering so he said little, desirous of staying firmly in the middle -- a position from which he could try to reconcile his colleagues.
Both Potter Stewart and Byron White were upset at Black's threat. Stewart had been a federal appeals court judge in Ohio before coming to the Court. He wanted to help the lower courts, not to confuse them.
White, who had been appointed to the Court in 1962 by President John F. Kennedy after serving as Robert Kennedy's chief deputy in the Justice Department, believed in strong school desegregation effort. He believed, as did Stewart, that the intricate process of desegregating schools could not be accomplished over a weekend.
There was no question where the final speaker at Conference, Thurgood Marshall, stood on school desegregation. Marshall, the only black on the Court, had earlier in his career led the legal battles that resulted in the famous 1964 Brown ruling against segregation.
For Marshall, the most important element in this case was unanimity. There must be no suggestion that the Court was backtracking. But Marshall was a practical man. If necessary, he said, he was willing to go along with a delay of five weeks for the submission of the desegregation plans. But that was not the major point. He wanted a specific date set for the implementation of the plans. They should be in effect for the start of the next semester in January.
As the justices expressed their views, Burger grew increasingly worried. It was already clear to the new Chief that many cases were not decided at Conference. Feelings were tentative, disagreements subtle. Often something had to be put down on paper before a consensus emerged.
Court tradition held that the Chief Justice assigned opinions if he was a member of the majority. But there was no clear majority in this case. So Burger took charge and said he would try to work out language in a simple order that would encompass the concerns of all the justices.
The way Burger analyzed the Conference discussion, the main obstacle to a unanimous decision was Black. Douglas was following Black's lead. They were along in insisting that the Court should order desegregation without drafting an opinion. Even Brennan and Marshall seemed open to compromise. If they could be kept from joining Black, then Black would almost certainly back down, despite his rhetoric in Conference.
So Burger first decided to try to put together a consensus opinion with those whose views were closest to his own -- Stewart, White and Harlan. Then he might be able to draft something that would draw Brennan and Marshall to his side, thus isolating Black and Douglas.
After Conference, Burger met with Harlan and Stewart and asked for their help. They had been through this process of compromise before.
Harlan said he resented Black's threat to break the tradition of unanimity on school cases by dissenting. It amounted to "black-mail."
Burger asked Harlan to draft a proposed order for the Court to issue. He wanted Harlan's thoughts as a starting point.
Harlan went to his chambers to work. His face almost touched the paper as he pushed a ballpoint pen across the pad. The writing was hardly legible. Immediate desegregation was impossible, he still felt, but he wrote as a compromise that the plans should be analyzed with the goal "to achieve immediate desegregation." The actual implementation date was left blank.
The two-page order was immediately sent down to the Court's printing shop in the basement. Even the most tentative drafts were generally printed and copies distributed to all the justices' chambers. These preliminary printed drafts in cases were never made public -- only the final ones.
The next morning, Saturday, Oct. 25, most of the justices came to the Court. Black stayed home.
The Chief asked Harlan and White to his chambers to go over Harlan's draft. Burger and White had also drafted possible orders. With a few changes, however, Harlan's draft served as the basis for their agreement. Burger then decided to send a memo to all the other justices: Confidential
MEMORANDUM TO THE CONFERENCE
Justice Harlan, Justice White and I met today and working from three rough, preliminary drafts of alternative dispositions developed the enclosed order to be followed by an opinion.
The draft reflects not necessarily our final view but a "passable" solution of the problem.
We have concluded, tentatively, to avoid fixing an "outside" date. I am partly persuaded to do this because of the risk that it could have overtones which might seem to invite dilatory tactics. WEB
When Brennan, Marshall and Douglas reviewed the proposed order, they agreed that it simply was not strong enough. Certainly it was not going to be acceptable to Black.
Marshall had been willing to compromise as long as there was an implementation deadline that ensured desegregation by the next semester. But now he thought Black might be right. His insistence on "now" might be unreasonable, but it was quite likely the Court's best posture. It would be best to send a shock-wave message.
Marshall was also concerned about the possibility of ending up on the wrong side of a Black dissent. Marshall did not want to be in a position where another member of the Court was claiming that he, of all people, was backing down. He instructed his clerks to begin work on an opinion of his own.
Meanwhile, Brennan decided that he, too, had to do something. Black, Douglas, Marshall and he could not let the more conservative quarter of Burger, Halan, Stewart and White control the outcome by having the only drafts in circulation.
In phone conversations with Black, Brennan became convinced that Black was adamant, unmovable. The collective liberal position would have to be largely Black's if they were going to act as a bloc as they had in the Warren Court days. Black's view was appealing. The Court had to be tough and dramatic, perhaps a little unreasonable, in order not to appear to be buckling.
So Brennan drafted an order himself. It was Black's position fully -- desegregation "now" and "immediately."
Black was home on Sunday, Oct. 26, studying the proposed orders that the Chief and Brennan had sent around. He thought the Chief's awful. He liked Brennan's proposal, which reflected his own arguments from Conference two days earlier. Perhaps some of his colleagues had not taken his threat to write a dissent seriously. Black decide that he had better make good on his word, and he began writing a dissent to the Chief's proposal:
The time has passed for plans and promises to desegregate. The Court's order here, however, seems to be written on the premise that schools can dally along with still more and more plans. The time for such delay I repeat we have already declared to be gone . . .
I would have the Court issue the following order.
Black attached a copy of Brennan's order.
In case anyone missed the import of what he was doing, Black drafted a cover memo to the Conference. He had it sent to the Court and printed, with a copy for each justice.
The letter from the Chief Justice circulated in connection with the proposed order and judgement in this case suggests that the proposal now has the approval of three members of the Court.
It is possible that this proposal will obtain a majority and that the Court may want to issue the order on Monday. Should that be the case, I would not want to delay such action, but will dissent as I have in the opinion circulated herewith.
While a dissent at this time may seem premature, this procedure has been followed only to avoid further delay.
When Harlan read Black's memo late Sunday afternoon, he was deeply upset. Black wasn't circulating it to avoid delay; he was making a simple power play. Obviously they all wanted unanimity. Black was telling each of them that they were going to have to deal with him to get it.
Harlan hadn't discussed the case with Black after the Conference, and he did not want to discuss it with him now. Black was dug in. Discussion would only aggravate matters. The only hope was Brennan and Marshall. Though they seemed to have joined Black, perhaps they could be peeled away. Harlan phoned Brennan. Black was just being unreasonable, Harlan said. The differences among them were not that great. No one, including the Chief, was really trying to stall desegregation. Harlan was willing to go along with something stronger, more emphatic, than the Chief's proposal. Brenan agreed that Black was being unreasonable. But it was essential to maintain unanimity, and Black was not bluffing. He would dissent from anything less than a strong command to desegregate now.
Harlan foresaw an uphill struggle.
The Chief was alarmed at Black's memo and his threatened dissent. If the Court's unanimity broke apart on a school case, particularly so early in his tenure, he would be declared an instant failure. He and the Court might never recover. The press would compare him unfavorably to Warren, who had held the Court together for 15 years on these cases. They would say that the Court had collapsed in the first month of Burger's first term.
Burger didn't like Brennan's proposed order. It didn't seem responsive to his own original proposal. The differences didn't seem reconcilable. Burger knew that Harlan, Stewart and White were irritated with Black's memo and his proposed dissent. There was little that Burger could do about the order now. That was something for the others to work out. For the sake of unanimity, he would go along with anything they could all agree on. Burger turned instead to getting out his draft opinion, the more detailed explanation of the Court's reasoning. It could serve as a basis for uniting all of them. "I'm going to write an opinion that everyone will agree on or it will be a long time before there is anything in this case," the Chief told his clerks. It wasn't a threat. He was simply determined to show leadership.
The next two days, Monday and Tuesday, were a whirl of paper. Drafts and counter-drafts of proposed orders floated around. Scribbled ideas and proposed changes flew from chamber to chamber as the justices added their thoughts. The main actors were the Chief, Stewart, Harlan, Brennan and Marshall. Black and Douglas had apparantly decided on their view. White was leaving most of the work to the others. His main concern was unanimity.
The eight-man Court seemed deadlocked 4 to 4. Black, Douglas, Brennan and Marshall were on one side, agreeing on immediate desegregation. On the other side were Burger, Harlan, stewart and White, trying for something firm but less absolute, more practical, more sympathetic to the concerns of the executive branch.
Burger worked hard on his draft opinion. When it was typed, he gave rough copies only to those who seemed to be on his side -- Harlan, Stewart and White.
Stewart read it quickly. It confirmed his worst suspicions. Burger was a part of the Nixon administration. The draft opinion read like an administration press release. It was an unbelievable document, listing all the administrative difficulties involved in school desegregation, flattering the administration for its efforts in the face of the problems. It was also a confused, rambling account, tracing the history of desegregation cases, offering all the arguments for delay and then, like an O. Henry short story, it ended with a surprise. No delays would be granted.
Stewart knew that if the opinion were issued, it would effectively make law out of the administrative difficulties encountered by the government in enforcing desegregation. He told one of his clerks that the opinion was too abstract and asked him to draft something that would stick to the facts in this case, make no dangerous statements and steer between the Chief and Black.
In the meantime, Harlan was polishing off another draft order -- one last effort to bring Brennan and Marshall over to his side.
Harlan circulated his second draft order on Tuesday. Stewart's draft opinion also was ready. With the Chief's draft, the more conservative group now had three documents to go over. They caucused. Harlan indicated he had no support from Brennan Marshall for his latest effort. But more significantly, the more conservative members could not begin to agree among themselves.
For his part, White was unwilling to spend any more time on the issue. He disliked giving a disproportionate amount of his schedule to politically sensitive cases. The Court had over a hundred cases per term. White was more interested in the bottom line than in every intermediate step.
One by one, they decided that they might as well give in and join Brennan. It was more important that the Court be unanimous, perhaps just as important that they act that week, to emphasize their commitment to desegregation. By the end of the day, all four had approved the Brennan order with a few changes in wording.
Black had won every major point. No delay would be permitted. In effect, the Court ruling said that the deadline had passed 15 years ago.
Stewart thought the case was a demonstration of the new Chief's inability to lead them through a crisis. The Court's reputation was a result of its bold desegregation decisions, and Burger had done nothing to sustain that reputation. The Chief's job was to hamonize and synthesize. The Court had agreed on a two-page order and had issued it quickly, but the justices had not agreed on its legal grounds or the reasoning behind it. Burger, Stewart concluded, had failed to bring about a true consensus.
Stewart believed that Earl Warren would have explained to Black that no one was going to dissent, period, and that they would all work something out. Black would never have pulled such a stunt with Warren.
Harlan withheld judgement on Burger. Given Black's obstinacy, and Chief Justice would have had difficulty with this situation, Harlan thought. But he did view the resolution as particularly lamentable. Though the Court had acted unanimously, it had handed down a meaningless and unworkable abstraction to the lower courts. What could "immediate" and "at once" and "now" mean to lower-court judges faced with fact-finding and competing interests that had to be weighed?
Burger was elated that the decision was unanimous.
The next morning, Wednesday, Oct. 29, six days after oral arguments, the decision was announced. The news stories noted that the decision was a setback for the Nixon administration -- the end of dual school systems, and without further delay. Sen. Strom Thurmond of South Carolina decried the decision, while praising the president: "The Nixon administration stood with the South in this case."
The new Court under Burger, declared former Alabama governor George Wallace, was no better than the Warren Court"; the justices were a bunch of "limousine hypocrites."
One of Burger's law clerk assistants congratulated him on standing up to the administration, saying this case would show the country that the Chief wasn't Nixon's puppet.
Burger was flabbergasted. "Do you think people really think I'm a Nixon puppet?"