With the departure from the Supreme Court of Hugo Black, William O. Douglas became both senior associate justice and the main obstacle to Chief Justice Warren Burger's efforts to gain full control of the Court.
The battles between Douglas and Burger during the early 1970s grew increasingly bitter, with Douglas threatening at one point to publish a dissent in which he compared Burger to the chief justice of Russia.
Some of the most heated struggles took place over the most volatile issue before the Court during this period -- abortion.
A condensation from the soon to be published book, "The Brethren."
Douglas had long wanted the Court to face the abortion issue head on. The laws in effect in most states, prohibiting or severely restricting the availability of abortions, were infringements of a women's personal liberty, he felt. The broad constitutional guarantee of "liberty," he thought, included the right of a woman to control her body.
Douglas realized, however, tat a majority of his colleagues were not likely to give such a sweeping reading to the Constitution on this increasingly volatile issue. He knew also that the two cases now before the Court -- challenging restrictive abortion laws in Georgia and Texas (Doe v. Bolton and Roe v. Wade) -- did not signal any sudden willingness on the part of the Court to grapple with the broad question of abortions. They had been taken only to address technical but important questions on the power of federal courts.
Douglas knew the Chief hoped to use these two cases to reduce the number of federal court cases brought by activist attorneys. The two abortion cases were not to be argued primarily about abortion rights, but about jurisdiction.
Since Lewis Powell and William Rehnquist -- the Nixon nominees to succeed Black and John Harlan -- still had not been sworn in, the cases were going to be decided by a seven-man Court. The Chief, Potter Stewart, Byron White and Harry Blackmun seemed firmly opposed to taking an expansive view of the range of civil rights to cases that could be brought to federal court. So, jurisdiction or abortion, either way it looked like at least a 4-to-3 defeat.
After the cases were argued in open court, the justices met in the secrecy of Conference to vote. Contrary to Douglas' expectation, Stewart joined Douglas, Brennan and Marshall for a 4-to-3 ruling that the Supreme Court did indeed have jurisidation to decide whether women have a right to obtain abortions.
When the justices next voted on the abortion question itself, the result was less clear. As Douglas saw it, he, Brennan and Marshall had spoken, strongly for striking down state laws restricting abortions. Stewart and Blackmun voted to strike at least portions of some laws. The chief and White came out in favor of upholding abortion laws.
There seemed to be a majority for some kind of ruling against abortion laws.
The Chief's assignment sheet circulated the following afternoon. Each case was listed on the left side in order of the oral argument, the name flabbergasted. The Chief has assigned four cases in which Douglas was sure the Chief was not of the justice assigned to write each decision on the right.
It took Douglas several moments to grasp the pattern of the assignments, and then he was a member of the majority. These included the two abortion cases, which the Chief had assigned to Blackmun. Douglas could barely control his rage as he ran down the list. Was there some mistake? He asked a clerk to check his notes from the Conference. Douglas kept a docket book in which he recorded his tabulation of the votes. It was as he suspected.
Never, in Douglas' 33 years on the Court, had any Chief Justice tried to assign from the minority in such fashion. For two terms now there had been incidents when the Chief had pleaded ignorance, had claimed he hadn't voted, had changed his vote. Until now they had been isolated instances.
At the first Conference of the term, in a prison case (Younger v. Gilmore ), the Chief had taken a position against the other six and, to Douglas' astonishment, attempted to assign the decision to himself.
Douglas had always been deferential to the Chief. But the prison case had been too much. Douglas had simply gone ahead and assigned Marshall to write an unsigned opinion. He had then informed Burger that he had made the assignment because the Chief had not been in the majority. The incident had hurt Burger's feelings. He had not voted at Conference, he explained in a memo. He had merely given his preliminary view. By the time of the assignment, he had become a member of the majority. He would have drafted a fitting majority opinion. But that time, the Chief had backed down.
Since then, Douglas had let other misassignments slip by. "God, I miss Hugo," Douglas lamented to friends whenever Burger manipulated assignments. "Burger would never have dared pull that if Hugo were around." As senior associate justice, Black and helped keep the Chief within bounds. To Douglas' dismay, that role now fell almost exclusively to him.
Four misassignments at one time, however, was simply too much to let pass. Douglas was convinced that as the senior member of the majority, he should have assigned all four of the cases. What particularly bothered him was that the Chief had given the abortion cases to Blackmun, his personal ally. The Chief might as well have assigned the abortion cases to himself.
On Saturday, Dec. 18, 1971, Douglas drafted a scathing memo to Burger, with copies to the other justices. He, not the Chief, should have assigned the opinions in four of the cases. And, Douglas added, he would assign the opinions as he saw fit.
The Chief's response was back in a day. He conceded error in two of the cases, but insisted that the voting in the two abortion cases was too complicated. "There were . . . literally not enough columns to mark up an accurate reflection of the voting," Burger wrote. "I therefore marked down no votes and said this was a case that would have to stand or fall on the writing, when it was done.
That is still my view of how to handle these two sensitive cases, which, I might add, are quite probably candidates for [postponement]."
Douglas ascribed to Burger the most blatant political motives. Nixon favored restrictive abortion laws. Blackmun was by far the slowest writer on the Court, and was the most likely to defect from the majority.
Faced with the possibility that the Court might strike abortion laws down in a president-election year, the Chief was clearly trying to stall or scuttle the opinion, Douglas concluded.
Blackmun was both pleased and frightened by the assignment to write the aborition decision. It was a no-win proposition. No matter what he wrote, the opinion would be controversial.
Blackmun knew that many of the justices -- particularly Douglas -- viewed him as a pawn of Burger.
Blackmun had warned Burger when he arrived at the Court that they would be tagged the "Minnesota Twins" after the baseball team for their home towns -- the Twin Cites of St. Paul and Minneapolis. It took only half a year of voting together before Blackmun's prophecy came true.
The nickname particularly offended Blackmun because it was clear that the Chief was the dominant twin. It implied that Blackmun had no judicial mind of his own. But the fact remained that he and Burger had found themselves on opposing sides only twice in the first 50 cases decided after Blackmun joined the Court. He never seemed to disagree with the Chief when it really counted. The clerk network had another name for Blackmun: "Hip Pocket Harry."
But Blackmun was convinced that as a former general counsel to the Mayo Clinic, he alone had the medical background and sufficient patience to sift through the voluminous record for the scientific data on which to base a decision. He was deeply disturbed by Douglas' assumption that the Chief had some malicious intent in assigning the abortion cases to him. He was not a Minnesota Twin.
True, Blackmun had known the Chief since they were small children and they had gone to Sunday school together. They had lived four or five blocks apart in the blue-collar Daytons Bluff section of St. Paul.
Blackmun's seven years at Harvard, however, put the two men worlds apart. Burger had finished local college and night law school in six years and was already practicing law when Blackmun came back to clerk for a judge on the Court of Appeals. Blackmun was best man at Burger's wedding, but the two drifted apart again as they established very different law practices.
Blackmun had long thought Burger an uncontrollable, blustery braggart. Now, once again in close contact with him, he was at once put off and amused by the Chief's exaggerated pomposity, his callous disregard for the feelings of his colleagues, his self-aggrandizement. "He's been doing that since he was four," Blackmun once told Stewart.
Blackmun, like Douglas, was aware of the Chief's attempts to use his position to manipulate the Court. Douglas, he thought, was correct to despite the sort of thing.
When he arrived at the Court, Blackmun had assumed the Chief's job as scrivener for the Conference. Burger had finally given up trying to keep track of all the votes and positions taken in Conference, and had asked Blackmun to keep notes and stay behind to brief the Clerk of the Court. Even then the Chief sometimes misstated the results. Blackmun would deftly field the Chief's hesitations, filling in when he faltered. When Burger misinformed the Clerk of the Court, Blackmun's cough would cue him.
"Do you recall what happened there, Harry?" the Chief would then say. "My notes seem to be a bit sporadic."
Blackmun would fill in the correct information as if Burger had initiated the request.
Part of the problem was that the Chief spread himself too thin. He accepted too many social, speaking and ceremonial engagements, and exhibited too little affection for the monastic, scholarly side of the Court's life. As a result, Burger was often unprepared for orals or Conference. Too often, he had to wait and listen in order to figure out which issues were curcial to the outcome. His grasp of the cases came from the summaries, usually a page or less of the memos his clerks prepared. The Chief rarely read the briefs or the record before oral argument.
The problem was compounded by Burger's willingness to change his position in Confernce, or his unwillingness to commit himself before he had figured out which side had a majority. Then, joining the majority, he could control the assignment. Burger had strained his relationships with everyone at the stable to the breaking point.
Blackmun also was not so naive as to think that the Chief had given him the abortion cases with the intention of having him find a broad constitutional right to abortion. But he was distressed by Douglas' implicit suggestion that he was unfit for the assignment or was somehow involved in a deception.
As was his custom, Douglas rushed through a first draft of his own opinion on the abortion cases five days after Conference. He decided not to circulate it, however, but to sit back and wait for Blackmun. He will still bitter toward Burger, whom he had taken to calling "this Chief," reserving "The Chief" as an accolade fitting only for retired Chief Justice Earl Warren.
Douglas also decided to break his usual rule against lobbying and paid a visit to Blackmun. Though he would have much preferred Brennan write the draft, he told Blackmun, "Harry, I would have assigned the opinion to you anyway." eassyred, Blackmun withdrew to his regular hideaway, the justices' second-floor library, where he worked through the winter and spring.
While Blackmun labored on the abortion case, the Chief on April 24 assigned Justice Powell a case involving antiwar demonstrators ejected from a shopping center for distributing literature (Lloyd v. Tanner ).
Douglas was out of town when the memo assigning the case was circulated. He was incensed when he returned. He had been sure that the Chief had passed rather than voted at Conference on the case, and as senior justice in what he thought was the majority, Douglas had already assigned Marshall to write the opinion. Now, Douglas prepared a new memo. His careless and crimped scrawl was ordinarily legible only to the trained eye. Now he hacked paragraphs on his legal pad so quickly that the words flowed together.
"Dear Chief Justice." he wrote instead of the usual "Dear Chief."
You apparently misunderstood. Lloyd is already assigned to thurgood and he's at work on an opinion. Whether he will command a majority, no one knows.
Under the Constitution and Acts of Congress, there are no previsions for assignment of opinions. Historically, the Chief Justice has made the assignment if he is in the majority. Historically, the senior in the majority assigns the opinion if the Chief Justice is in the minority.
You led the Conference battle against affirmance and that is your privilege. But it is also the privilege of the majority, absent the Chief Justice, to make the assignment. Hence, [the Lloyd case] was assigned and is assigned.
The tragedy of compromising on the simple procedure is illustrated by last term's [charlotte busing case]. You who were a minority of two kept the opinion for yourself and faithfully wrote the minority position which the majority could not accept. Potter wrote the majority view and a majority agreed to it. It was not circulated because we thought you should see it. After much effort your minority opinion was transformed, the majority view prevailed, and the result was unanimous.
But [the Charlotte busing case] illustrated the wasted time and effort and the frayed relations which result when the traditional assignment procedure is not followed.
If the Conference wants to authorize you to assign all opinions, that will be a new procedure. Though opposed to it, I will acquiese. But unless we make a frank reversal in our policy, any group in the majority should and must make the assignment.
This is a two-edge sword. Byron (fifth in seniority) might well head up five members of the Court, you, Bill Brennan, Potter Stewart and I being the minority; and we might feel very strongly about it. But in that event it is for Byron to make the assignment. It is not for us in the minority to try to outwit Byron by saying "I reserve my vote" and then recast it to control the assignment. That only leads to a frayed and bitter Court full of needless strains and quarrels.
[The lloyd case] stays assigned to Thurgood.
Douglas omitted the ordinary closing salutation and directed that copies of the memo, with its mocking, patronizing tone, should go to all the justices. It went out May 1.
Brennan and Marshall were worried. In principle, Douglas was right. They, too, doubted the Chief's sincerity in reserving his vote. As usual, he was maneuvering to make sure he could assign the case regardless of how the vote went. But if the vote was 4 to 4 with the Chief reserved, then the Court would go whichever way the Chief voted. If Burger assigned Powell, Powell might as well write it, Marshall could write all he wanted, but he would never command a majority.
The chief was surprised by Douglas' memo. It had never occurred to him that he might be wrong on this assignment. He wrote a note explaining patiently that the case, as he saw it, was 5 to 4 with himself the senior in the majority. Powell would write. Anyone else could write. They would see who got five votes.
Behind Douglas' back, Burger was less diplomatic. Any unnamed person who thought he was assigning cases improperly was "stupid" or "lying," he told other justices and friends -- at best, simply wrong.
As it turned out, Powell's opinion was the one that got five votes.
By mid-May, after five months of work, Blackmun was still laboring over his draft abortion opinion. Finally, he let one of his clerks look over a draft. As usual, he made it clear that he did not want any editing. The clerk was astonished. It was crudely written and poorly organized. It did not settle on any analytical framework, nor did it explain on what basis Blackmun had arrived at the apparent conclusion that women had a right to privacy, and thus a right to abortion.
But Blackmun resisted any modification of his basic reasoning or his conclusions. He circulated the memo to all chambers with few changes.
Douglas saw no shortage of problems with the Blackmun draft, but Blackmun had come a long way. At least it was a step in the right direction. Though Douglas was still holding on to his own draft, he did not circulate it. Instead, he joined Blackmun's.
At the time, the Court was considering an antitrust case against a utility company, the Otter Tail Power Co., which operated in Minnesota. Douglas saw an opportunity to flatter Blackmun. "Harry, you're not a Minnesota Twin with the Chief," he told him. "I am the real Minnesota Twin. . . . We were both born in Minnesota and you were not."
Douglas regaled Blackmun with stories of his father's life as an itinerant preacher in Otter Tail County, and he praised Blackmun's abortion draft. It was one of the finest presentations of an issue he had ever seen, he said.
Blackmun was ecstatic. Douglas, the greatest living jurist, had freed him of the stigma of being Burger's double. Soon Blackmun had five votes -- his own and those of Douglas, Brennan, Marshall and Stewart. It was one more than he needed; it would have been a majority even if Powell and Rehnquist had participated.
On Friday, May 26, Bryon White read a draft dissent to Blackmun's abortion decision that one of his clerks had prepared. He then remolded it to his liking. The structure of Blackmun's opinion, White thought, was juvenile.
Blackmun was disturbed when he received a copy of White's draft. Whether the attack made sense or not, it showed him that he had more work to do. The more he studied and agonized over his own memo, the less pleased he was. He needed more information, more facts, more insight.
On Saturday toward the end of May, the Chief paid Blackmun a visit, leaving his armed chauffeur-bodyguard in the outer office. Blackmun's clerks waited anxiously for hours to find out what case the Chief was lobbying. The Chief finally left, and Blackmun also departed without a word to his clerks.
The following Saturday, June 3, Blackmun drafted a memorandum withdrawing his abortion opinion. It was already late in the term, he wrote. Such a sensitive case required more research, more consideration. It would take him some time both to accommodate the suggestions of those in the majority, and to respond to the dissenters. Perhaps it would be best if the cases were reargued in the fall. He asked that all copies of his draft memo be returned.
Douglas was once again enraged. The end of the year always involved a crunch. Of course, there was tremendous pressure to put out major opinions without the time to fully refine them. That was the nature of their work. The pressure affected them all. It was typical that Blackmun could not make up his mind and let his opinion go. Douglas had heard that the Chief had been lobbying Blackmun. This time, Burger had gone too far. The opinion had five firm votes. It ought to come down. Douglas also did not want to give the Chief the summer to sway Blackmun.
Burger was taking the position that there were now five votes to put the case over to the next term -- Blackmun, White, Powell, Rehnquist and himself. Douglas couldn't believe it. Burger and White were in the minority; they should have no say in what the majority did. And Powell and Rehnquist had not taken part; obviously they could not vote on whether the case should be put over.
Douglas dashed off a memo, rushed it to the secretaries for typing and to the printers for a first draft. This time, Douglas threatened to play his ace. If the Conference insisted on putting the cases over for reargument, he would dissent from such an order, and he would publish the full text of his dissent. Douglas reiterated the protest he had made in December about the Chief's assigning the case to Blackmun, Burger's response and his subsequent intransigence. The senior member of the majority should have assigned the case, Douglas said, and continued.
When, however, the minority seeks to control the assignment, there is a destructive force at work in the Court. When a Chief Justice tries to bend the Court to his will by manipulating assignments, the integrity of the institution is imperilled.
Historically, this institution has been composed of fiercely independent men with fiercely opposed views. There have been -- and will always be -- clashes of views. But up to now the Conference, though deeply disagreeing on legal and constitutional issues, has been a group marked by good-will. Up until now a majority view, no matter how unacceptable to the minority, has been honored as such. And up until now the incumbents have honored and revered the institution more than their own view of the public good.
Perhaps the purpose of THE CHIEF JUSTICE, a member of the minority in the Abortion Cases, in assigning the opinions, was to try to keep control of the merits. If that was the aim, he was unsuccessful. Opinions in these two cases have been circulated and each commands the vote of five members of the Court. Those votes are firm, the Justices having spent many, many hours since last October mulling over every detail of the cases. The cases should therefore be announced.
The plea that the cases be reargued is merely strategy by a minority somehow to suppres the majority view with the hope that exigencies of time will change the result. That might be achieved of course by death or conceivably retirement.
Douglas, a 74-year-old man with a pacemaker, knew a fifth Nixon appointment was a real possibility on the Court; Marshall was chronically ill, and Brennan occasionally threatened to quit.
But that kind of strategy dilutes the integrity of the Court and makes the decisions here depend on the manipulative skills of a Chief Justice. The Abortion Cases are symptomatic. This is an election year. Both political parties have made abortion an issue. What the parties say or do is none of our business. We sit here not to make the path of any candidate easier or more difficult. We decide questions only on their constitutional merits. To prolong these Abortion Cases into the next election would in the eyes of many be a political gesture unworthy of the Court.
Each of us is sovereign in his own right. Each arrived on his own. Each is beholden to no one.
Borrowing a line from a speech he had given in September in Portland, Douglas then made it clear that, despite what he had said earlier, he did in fact view the Chief and Blackmun as Nixon's Minnesota Twins. "Russia once gave its Chief Justice two votes; but that was too strong even for the Russians. . . .
"I dissent with the deepest regret that we are allowing the consensus of the Court to be frustrated."
Douglas refined his draft three times, circulated it, and left for his summer retreat in Goose Prairie, Washington.
The Court erupted in debate over whether Douglas was bluffing or was really willing to publish the document.
Though sympathetic to his views, Brennan, Marshall and Stewart could not believe that Douglas would go through with it. No one in the history of the Court had published such a dissent. The Chief might be a scoundrel, but making public the Court's inner machinations was a form of treason. And the reference to the Russian chief justice with two votes was particularly rough.
They pleaded with Douglas to reconsider. His dissent would undermine the Court's credibility, the principal source of its power. Its strength derived from the public belief that the Court was trustworthy, a nonpolitical deliberative body. Did he intend to undermine all that?
Douglas insisted. He would publish what he felt like publishing. And he would publish this if the request to put over the abortion decision was not withdrawn.
But, the others argued, what good would it do to drag their internal problems into public view?
It would have a sobering influence on Blackmun, Douglas retorted. It would make it harder for him to change his mind over the summer.
Brennan's impatience with Douglas turned to anger. Douglas had become an intellectually lazy, petulant, prodigal child. He was not providing leadership. Douglas was never around when he was needed. His departure for Goose Prairie was typical. He was not even for that matter, pulling his share of the load, though he certainly contributed more than his share to the tension. The ultimate source of conflict was the Chief. But Douglas, too, was at fault.
Finally, Brennan gave up arguing.
Blackmun then took it up, pleading with Douglas to reconsider. He insisted that he was committed to his opinion. He would bring it down the same way the next term; more research would perhaps pick up another vote.
Douglas was unconvinced. He needed time to think it over. His clerks would remain instructed to publish the opinion if the cases were put over for reargument.
But Blackmun had made his point. Douglas finally decided that he couldn't publish. It would endanger next term's vote on the abortion cases. A memo came around to the justices from Douglas' chamber asking for all the copies back.
The Conference agreed to put over the abortion cases until the next term.
Blackmun spent the summer of 1972 trying to perfect his draft opinion in the abortion cases. When they were reargued the next term, he again got the assignment to write for the majority. After complicated negotiations over the scope of the opinion, he picked up Lewis Powell's vote in addition to the five votes he had from the previous term. White and Rehnquist wrote dissents, leaving only Burger to cast his vote.
By early January 1973, there was still nothing from the Chief. Blackmun grew increasingly nervous. He was worried about his reputation for being chronically late. He had not yet brought down an opinion for the term. Abortion was ready; he wanted it to come down at once. Blackmun and the others in the majority finally began pointing toward a Monday, Jan. 15, announcement of the abortion decisions. Still there was nothing from Burger.
On Jan. 12 at Conference, Stewart put it to the Chief directly. "Vote now or let the decision come down with only eight votes," Stewart suggested.
To the majority's surprise, Burger said that he had decided to join the Blackmun opiinion but, like some of the others, he wanted to add his own concurring remarks. "I'll get it to you next week," he promised.
Stewart and Brennan thought he was stalling. The Chief was scheduled to swear in Richard M. Nixon for his second term as president on Jan. 20. It would undoubtedly be embarassing for Burger to stand there, swearing in the man who had appointed him, having just supported a sweeping and politically volatile pro-abortion opinion that repudiated that man's views.
At the Friday, Jan. 19, Conference, the Chief said that his schedule had been busy, and he still had not gotten to the abortion decision. Stewart figured that, having manipulated a delay until after the Inaugural, Burger would acquiesce. The others wanted a Monday, Jan. 22, announcement, three days later, and Burger said that he would have something.
Over the weekend, he wrote a three-paragraph concurrence.
On Jan. 22, 1973, the abortion case came down. It was a broad decision declaring that states could not prevent women from obtaining abortions in the early months of pregnancy.