In his first term as Chief Justice, Warren Burger lost little time in trying to roll back some of the rulings of the Supreme Court under his predecessor, Earl Warren.
But Burger quickly ran up against a formidable obstacle in Associate Justice William O. Douglas.
One of the most bitter behind-the- scenes struggles of that first term centered on the question of whether the Court would reconsider a ruling the Warren Court had handed down the term before in the celebrated El Paso antitrust case.
Justice Hugo Black was hunched comfortably over his law books one day in the late fall of 1969 when an old friend came through his doorway. "Tommy," Black called out, greeting Thomas G. "Tommy the Cork" Corcoran, a Roosevelt braintruster from the old days, now a lawyer in private practice in Washington. Corcoran and Black had been friends since the 1930s, when both were zealous New Dealers. Black had introduced much of Corcoran's trustbusting legislation in the Senate and guided it through.
Now 69, Corcoran had gone over to the other side as far as Black was concerned. The charming Irish salesmanship had been fine when Corcoran was fighting the special interests. Now he represented them. His law practice was known for influence work, lobbying and backstairs deals.
Corcoran sat down in Black's office. Black had no idea why he was there. But they shared a family interest in Corcoran's 28-year-old daughter, Margaret. A Radcliffe College and Harvard Law School graduate, Margaret Corcoran had clerked for Black three years before, and was a member of Black's "family" of former law clerks. Recently she had been suffering from a series of personal problems, which Black presumed had occasioned Corcoran's visits.
Corcoran lost no time in making the purpose of his visit clear.
The Court had done a great injustice, he told Black. Its ruling the previous term in an antitrust case against the El Paso Natural Gas Co., the world's largest gas pipeline company, threatened the survival of the corporation (Utah Public Service Commission v. El Paso Natural Gas Co.).
Black was shocked. No one came to the Supreme Court to lobby, even to "put in a good word" for a petitioner. The mere mention of a pending case at a cocktail party was forbidden. Out-of-court contacts with justices about cases were unethical. There was currently before the Court a petition requesting a rehearing of the El Paso case, and Corcoran had come to lobby for the company. Black cut his old friend off quickly. No. He shooed Corcoran out of his office.
The El Paso case had been in the federal courts for the past 12 years. It was the most celebrated and the most litigated antitrust case of the decade. It had been to the Supreme Court three times until finally, in the previous term, the company was ordered to divest itself of its monopolistic holdings in the West.
The rehearing petition that was pending before the Court was a common, last-ditch, usually futile, effort of the losing side, asking the Court to reconsider what it had just done. Black thought it unlikely that El Paso would win review. The Court, which had just decided it the term before, was not going to reverse itself unless dramatically different circumstances presented themselves. As far as Black knew, there were none.
The previous term's opinion had been a 4-to-2 vote, with three justices not participating. Byron White and Thurgood Marshall were out because they had been involved in the case while at the Justice Department and Abe Fortas had resigned before the decision. Black, William Douglas, William Brennan and Earl Warren had formed the majority. John Harlan and Potter Stewart had dissented.
The Court's rules provided strict guidance on rehearing petitions. Rule 58 said that the Conference could not consider a petition unless it was brought up by one of the justices from the previous majority. Those who had dissented could not proposes a rehearing. The rule was logical, since, ordinarily, there was no reason to reconsider a case unless someone in the original majority had changed his mind, or had found a reason to hear the case again. Otherwise, litigation would never end.
Since Warren was gone, the only remaining members of the old four-man majority were Brennan, Black and Douglas. Unless one of them took the initiative and brought up the petition at Conference, it would die.
Under a long-standing tradition of the Court, new justices -- in this case the Chief and the eventual replacement for Fortas -- would not even vote on rehearing petitions. That could mean that a previous decision would be left standing, even if a clear majority of dissenters and new justices thought it was wrong. This was essential if the Court was to maintain credibility as its membership changed. The Court must be perceived as a continuing body whose opinions do not change merely because new justices join it.
Black could almost forgive Corcoran for his carelessness. Corcoran had been an advocate all his life, he was unable to stop pressing for his clients' interests. But in his 32 years on the Court, Black had never had the arm put on him in such an overt way in his own chambers by a lawyer for a private party involved in a dispute before the Court.
Cocoran however, was not about to give up. His lobbying efforts had been disregarded before in Washington. He was used to taking his knocks. He made an appointment with Brennan.
Brennan had no idea why Cocoran, whom he did not know well, had requested an appointment. He greeted Corcoran warmly. The two Irishmen sat and exchanged a few pleasantries. Cocoran quickly got to the point. Why was the Court determined to ruin El Paso?
Brennan was surprised.
Corcoran said that the deathbed statement of one of the gas pipeline lawyers in the case, John Sonnett, had prompted his visit. Sonnett had said that a grave injustice had been committed by the Court in its sweeping divestiture order against El Paso.
Brennan stood. He said that he, of course, could not and would not ever discuss a pending case, and showed Corcoran to the door He immediately went to tell his clerks. cSomething awful just happened, he said. His shock was evident on his face as he described Corcoran's visit.
Brennan said he had had no way of knowing beforehand what Corcoran wanted. Corcoran's name had not been on the petition for rehearing or on other briefs and papers. It was outrageous, a lawyer coming to lobby a justice. The question was what to do now? He probably would have to disqualify himselfrom participating in the consideration of the rehearing petition. Disqualification is voluntary, a decision left to each individual justice in situations where his neutrality could be questioned. Even though Corcoran had been unsuccessful and had not influenced him, Brennan suggested that the appearance of the situation might call his impartially into question.
But, Brennan now felt, the Court might have been wrong in the El Paso decision. After all, the states in the West supported El Paso because they were bothered less by monopolies than by the threat of a shortage of natural gas. Perhaps zealous trust busting was not feasible here.
The Chief believed that the 4-to-2 El Paso decision of the previous term was one of the classic excesses of the Warren Court. He wanted to grant a rehearing and press for a reversal. Though tradition seemed to suggest that he not participate, and though Rule 58 might keep the Conference from even considering the case. Burger was looking for a way around those obstacles. The El Paso decision involved a procedural twist that, in his view, dramatized the willingness of the Warren Court to bend the rules to meet its goals.
The Chief thought it fantastic and unprecedented that all those involved in the dispute -- the El Paso company, the invidual states, the Justice Department, which enforced the antitrust laws -- had finally agreed to a compromise, something less than the total divestiture ordered earlier by the Court. All parties involved the term before had asked that the case be dismissed. rule 60 of the Court said such a request for dismissal should be granted automatically.
As the Chief saw it, that should have ended the case. It was simple. How could the Court make a ruling when there was no controversy, no complaint, no dispute? But the Warren Court had refused to let the parties dismiss the case.
Incredible as it seemed, the Court had allowed a former California public utility official to argue as a "consumer spokesman." Traditionally, an individual had no legal standing to intervene in a government antitrust suit. By law the Justice Department had the job of enforcing the antitrust statutes, and it had decided to let the 12-year controversy die. That should have been it for the Court. But the Court had set itself up as a sort of review board, saying there had been a dispute, and the Court wanted to resolve it anyway. This was not mere judicial activism, the Chief felt, but judicial interventionism -- an arbitrary exercise by the Court of its power to do justice when no one had requested it.
The Chief thought Warren had bent the rules in this case. If the rehearing petition was granted and the preceding term's decision was eventually reversed, it would be a body blow to Warren Court activism. It would signal that the Burger Court was going to play by the rules. Overturning the decision would not be merely overruling one case with another (something that happened on the average of once a term); it would be taking the very case itself and saying that the previous Court had been wrong. t
The Chief thought the obstacle of Rule 58 could be cleared. The majority of the current members of the Court should prevail, and any justice should be able to bring up a rehearing petition. The tradition that prevented new justices from voting made little sense. Burger planned to cast his vote despite the tradition. He thought the votes were there for a 4-to-3 victory. Harlan and Stewart who had been vigorous dissenters in the previous term's decision, would no doubt join the Chief and the Fortas replacement, giving them four votes to defeat Brennan, Black and Douglas.
But Douglas had a strong interest in seeing that no rehearing was granted. For him, the issue was also simple, and also of fundamental importance. The Supreme Court was having some trouble getting the lower court, as well as the Justice Department and big business interests like El Paso, to obey its rulings. Just as segregationists in the South had in effect ignored the Court's school rulings with tricks and delays, now corporations and utilities were dodging unfavorable rulings with their high paid lawyers and delaying tactics.
In Douglas' opinion, the Court had to show its willingness to ensure that its decrees were obeyed, and divestiture of El Paso meant just that. The corporate interests were thwarting the Court, the justices had to stand fast. There was a colition of energy, environmental and consumer interests involved in this case. According to one press account, El Paso was making one million dollars a day by retaining its monopoly. According to another, it was spending millions lobbying Congress for legislation to guarantee that it could keep its holdings.
The Court's decision in the peceding term was necessary. Douglas was suspicious about the Justice Department's withdrawal from the case. President Nixon and his attorney general, John Mitchell, had been partners in a New York law firm that had done some legal work for El Paso. Legal fees of $771,000 had been paid to their former law firm, Mudge, Rose, Guthrie & Alexander, during the 1960s.
Soon after the Corcoran visits, the Conference took up the El Paso petition. Brennan recounted to the full Conference the details of Cocoran's visit, his plea, and his account of the purported deathbed statement of one of the lawyers. The lobbying effort was improper, Brennan said. Nonetheless, he felt that perhaps El Paso did have an argument, that possibly a rehearing should be granted.
Douglas interrupted sharply. That was no deathbed confession, merely a lawyer's distress at having lost a case. How could Brennan even consider it? In the first place, Brennan was wrong in suggesting that El Paso had a legitimate claim. But more important now, Douglas said, it was Corcoran's lobbying that was the issue. If the Court granted a rehearing, Tommy Corcoran would be all over town bragging about how he had stopped by Bill Brennan's office and had twisted his arm -- and, in turn, how Bill Brennan had bamboozled the rest of the Court. Did they want their halls filled with influence peddlers?
"If that's the way you're going to look at it, I'll remove myself," Brennan responded.
The matter was left dangling until the next Conference, but Brennan was concerned. after the forced resignation of Fortas and the controversy over Nixon's ill-fated effort to replace Fortas with Clement Haynsworth, the Court could not afford another black eye.
Brennan went to see Harlan, a man of strict propriety. Harlan was both offended by and amused at Corcoran. The lawyer-lobbyist, he observed, just couldn't make a distinction between Congress, where he always lobbied, and the Court. Since the Supreme Court building was geographically on "The Hill," Corcoran probably just strolled across First Street after an attempted seduction of some senator. The important thing was that Corcoran had not been allowed to make his arguments and had been thrown out. Harlan would have disqualified himself if Corcoran had come to him, but each justice must decide for himself. Privately, Harlan thought Brennan should not even have expressed his tentative desire to rehear the case.
Brennan, still concerned, went to Black.
Black had not told the Conference that Corcoran had also visited him. He had not wanted to hurt his old New Deal friend. But he had been quietly telling individual justices about the episode. Now he told Brennan.
That made it even worse, Brennan felt.
They agreed on a course of action. Only Brennan, who was more upset about the appearance of the visit and was also tentatively in favor of helping El Paso, would formally remove himself from the case. With Brennan out, that left Black and Douglas from the old majority, and neither wanted the case reconsidered. Thus, no member of the old majority would propose the discussion, and the rehearing petition would be denied. Brennan soon formally notified the Conference that he would not participate. He considered the matter settled.
Burger, however, wasn't happy. Corcoran's visits were stupid, but trivial.
That should not interfere with the Court. Clearly the votes were there to grant a rehearing, and probably reverse the decision. Brennan's decision to disqualify himself had tipped the balance to 3 to 2 in Burger's favor -- himself, Harlan, and Stewart versus Black and Douglas. The Chief needed the vote of the Fortus replacement to win now, for without it, he lacked a quorum. For the Court to conduct any business, six members must participate.
But the others were holding him to the Rule 58 technicality that permitted consideration of the rehearing petition only on the motion of a member of the old majority, of which only Black and Douglas remained. Since they were opposed, the case could not even be discussed. The minority would have its way over the majority. As the Chief was fond of saying, that made no sense. And if it didn't make good sense, how could it make good law?
The year before, Earl Warren had pulled out all stops to get his way. Douglas had done everything to push toward a divestiture order. And now Brennan was dropping out, thus preventing the Court from readdressing the issue.
The Chief had been working on a revision of the Court's rules. He decided that Rule 58 on rehearings was too restrictive, and he wrote out a change. Instead of requiring that a justice from the old majority propose any reconsideration of a decision, the Chief wanted the rule to read that any justice could do so. o
Burger's suggestion for revision of the rules were sent around to all the chambers. If the changes were adopted, the El Paso rehearing petition could be considered. He was confident that he had the votes.
Reading the Chief's suggested changes, Douglas immediately noticed Burger's proposal concerning Rule 58. Douglas had watched the new Chief for months. His anxiety had mounted. Now he felt he had caught Burger red-handed, trying to change the rules to fit one case. Burger's lack of intellect, Douglas thought, was necessarily forgivable. This was not.
Douglas was detemined to get in an early shot. He sat down at his desk to draft a dissent for publication. It was written as if the rehearing had been voted and the change of Rule 58 had been approved. He laid out the long history of the case -- the Court's struggle to enforce its ruling, the petition for rehearing, Corcoran's ridiculous lobbying efforts, the Chief's proposal to change Rule 58, and the break with the traditional prohibition that new justices not vote on rehearing petitions. Douglas tried to push the Nixon-Burger rhetoric about judicial restraint and strict constructionism down Burger's throat. He charged that the Court and its rules were being manipulated to overturn a one-year-old precedent. He portrayed the new Chief as a radical interventionist -- justice who was sticking a knife in the heart of stare decisis -- the doctrine that the precedent of earlier cases controls.
If the Conference consented to the rule change and granted the rehearing, Douglas would publish his 10-page memo as a dissent to the official announcement of the Court's decision to rehear the case, Douglas sent his memo to the printer and had it circulated. It went off like a bomb in the other chambers.
To those clerks who had not been informed about the Chief's proposed changes, it was an eye-opener. Clearly, the Chief and Douglas, two of the most stubborn men on the Court, were on a collision course.
Stewart and Black were worried. The Court did not normally air its disputes publicly -- nor, for that matter, publish the improperties of a member of its own bar, like the lobbyist Corcoran.
Stewart went to Douglas, who assured him that he was firm about publishing the dissent. Douglas was sure this was how to blow the whistle.
Stewart and Black spoke with the Chief. Douglas will go ahead, they warned him. Burger had to withdraw his proposed change to Rule 58. There was no choice. The Chief agreed.
On June 29, 1970, the Court announced that the El Paso rehearing was denied.
Douglas was pleased. The incident suggested that Burger would go far to win, but that when he was threatened with being put in an unfavorable light, he would back down.