Five Chiefs Read online

  Whereas my most vivid memory of my first oral argument on the court of appeals is the friendly handshakes with Luther Swygert and Roger Kiley, what I remember most clearly about the first argument I heard as a Supreme Court justice is how I approached and left my seat on the bench. The approach identified a five/four division among the nine members of the Court; the exit reflected my respect for Lewis Powell, who sat next to me.

  Seniority determines where each of the nine justices sit. The chief has the center seat, the senior associate sits on his right, the next most senior on his left, and so on. When the marshal shouts, “Oyez, oyez” (the traditional equivalent of “Hear ye, hear ye”; it is pronounced “Oh yay,” not “Oh yez”), and requests all of the spectators in the courtroom to rise, the justices ascend the bench in groups of three: the chief justice and the two most senior justices are in the center; the fourth, sixth, and eighth most senior justices enter at the right end of the bench; the fifth, seventh, and ninth most senior justices enter at the left end. Thus, using numbers to describe the lineup in the conference just prior to entering the courtroom, the sequence is 123-468-579.

  The five-four split that impressed me on my first day was that of the five justices who were over six feet tall and the four—Justices Brennan, Stewart, Blackmun, and Stevens—who were all within an inch or two of five feet six. As the most junior, I was at the end of the line, with the six-foot Lewis Powell (number 7) in front of me, and the even taller Bill Rehnquist (number 8) in front of him. The only other justices visible to me were the broad-shouldered Thurgood Marshall (number 5), the all-pro running back Byron White (number 4), and our handsome leading man (number 1). I won’t say that I felt insignificant, but I did feel that I was beginning my tenure as a member of a small minority.

  During the argument, Lewis Powell carefully explained that when we adjourned I should be sure to push my chair back far enough to enable Thurgood and himself to walk past it before descending the steps from the bench. At the end of the argument, attentive to that counsel, I gave my chair such a firm shove that I missed catapulting down those stairs by only a matter of inches. I continue to thank the good Lord for saving me from what would have been a truly memorable opening argument.

  Though in 1975 I was the most junior justice and Burger was the chief, we were equals with respect to the most important duty and privilege involved in our work: casting votes and expressing views about how cases should be decided. Becoming the junior justice after the Court has heard arguments in over sixty cases is somewhat like leaping onto a moving train after it has left the station and is still gaining speed. At the time of my arrival at the Court, it seemed that every one of my new colleagues was busily engaged in drafting, criticizing, and rewriting portions of the 294 pages of opinions that were announced on January 30, 1976, in the famous campaign finance case known as Buckley v. Valeo. While I did not participate in the case, because it had been argued before I arrived, I was provided with copies of the seemingly endless parade of writings that my new colleagues circulated. Because I thought that I should keep abreast of the ongoing debate, my principal memory of my first weeks on the Court is one of extreme distaste for debates about campaign financing. That distaste never abated, and I have felt ever since that the Court would be best served by inserting itself into campaign finance debates with less frequency. That view may have had an impact on the unusually long dissent that I wrote during my last term on the Court against the Court’s overreaching in the Citizens United case—a case in which the Court essentially rewrote the law relating to campaign expenditures by for-profit corporations and unions in order to decide that a wealthy nonprofit corporation could use its assets to televise and promote a movie about Hillary Clinton wherever and whenever it wanted.

  In addition to my overriding hostile reaction to the subjects discussed in Buckley, I also recall puzzlement about why the Court failed to endorse the position expressed by Justice White in his dissent. He effectively explained why the distinction between limitations on contributions (which the Court upheld) and the limitations on expenditures (which the Court invalidated) did not make much sense, and why the Court should have respected the congressional judgment that effective campaigns could be conducted within the limits established by the statute. Time has vindicated his prediction that without “limits on total expenditures, campaign costs will inevitably and endlessly escalate.” He thought it quite proper for Congress to limit the amount of money that a candidate or his family could spend on a campaign in order “to discourage any notion that the outcome of elections is primarily a function of money.”

  The majority’s response to Justice White relied on the rhetorical flourish that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” The assumption underlying that colorful argument is that limitations on the quantity of speech in public debates are just as obnoxious as limitations on the content of what a speaker has to say. But there is nothing even arguably unfair about evenhanded rules that limit the amount of speech that can be voiced in certain times or places or by certain means, such as sound trucks. If we view an election as a species of debate between two adversaries, equalizing the amount of time (or money) that each can spend in an attempt to persuade the decision-makers is fully consistent with the First Amendment. Otherwise, appellate court rules limiting the time that the adversaries spend in oral arguments would be invalid because they limit the speech of one adversary in order to enhance the relative voice of his or her opponent.

  While I was still digesting the circulations in the Buckley case, the chief provided me with copies of the pool memos that had been prepared for upcoming conferences, and he invited me to join the pool. Those memos were a response to the problems presented by the need to process the voluminous papers filed by litigants asking the Court to review the decisions of federal and state courts that had ruled against them. In Warren Burger’s first term as chief, 3,435 such filings arrived, more than double the number filed in Earl Warren’s first term.

  Before I joined the Court, Justice Lewis Powell had suggested that a great deal of valuable time could be saved by having a clerk prepare a memorandum for each application, summarizing it and recommending an appropriate disposition. The chief and Justices Byron White, Harry Blackmun, and William Rehnquist agreed with Lewis’s suggestion, and their clerks formed a pool whose work products those justices shared.

  I found the sample pool memos to be extremely thorough summaries of the parties’ filings, but based on my earlier experience as a law clerk, I was convinced that in most cases I could make an accurate judgment about whether to grant or deny the petition more easily by glancing at the original papers than by reading an unnecessarily detailed description of the arguments favoring and opposing review. I therefore declined the chief’s invitation to join the pool. Before making that decision I did not discuss the matter with any other justice, but I do recall a later conversation with Justice Stewart in which he expressed a favorable reaction to my decision because he thought the pool should not include more than five justices. While I have never had second thoughts about staying out of the pool, my refusal may not have been the most diplomatic decision that a new member of the Court could have made. I was, however, joined in my abstinence by Justices Brennan, Stewart, and Marshall.

  Early in that term, the chief initiated a conversation with me about National League of Cities v. Usery (1976)—a case that presented the question whether the Constitution permitted Congress to require states to pay their employees federally mandated minimum wages. I think that was the only case whose merits the chief and I discussed before argument. A majority of justices on the Court ultimately held that Congress did not have the challenged power. Bill Brennan wrote a powerful dissent in that case, but because he used such strong language—referring to the majority’s “catastrophic judicial body blow at Congress’ power under the Commerce Clause”—I decided t
o write a brief dissent of my own. While I have since concluded that Justice Brennan’s rhetoric was entirely appropriate, I think my dissent, coupled with my refusal to join the pool, may well have affected the chief’s appraisal of his most junior colleague. Despite his possible disappointment, though, I never felt that the chief treated me unfairly when making opinion assignments—or, indeed, in any other respect.

  The only way in which Burger changed my responsibilities as a junior justice from those who had preceded or would succeed me was by not asking me to testify at congressional hearings to review the Court’s budget proposals. I was happy to avoid that responsibility. It also probably explains why I have never known as much about the financial operation of the Court as my colleagues. I am the only former justice appointed after Burger became chief whose sole appearance at a congressional hearing came while being considered for confirmation.

  The junior justice on the Court has a variety of other duties, most of which were ones to which I acclimated quickly. I remain confident that I was competent in my performance of two in particular. One was the product of long-standing tradition. The second was a by-product of Warren Burger’s leadership. It is the job of the junior justice to get up and open the door if anyone knocks while a conference is being held. I did commit one unforgivable error in my first or second conference: I was so absorbed in the discussion that I did not realize that someone had knocked until Bill Brennan on my left and Bill Rehnquist on my right pushed back their chairs and got up to answer the door. That humiliating lesson taught me to keep track of priorities—for the junior justice, there is one responsibility even more important than being fully informed about the views of your colleagues: remembering that you are what Tom Clark described as the most highly paid doorman in the country.

  That incident reminds me of my favorite way of explaining my vote when I was the last to speak after four of my seniors had voted to reverse, and four had voted to affirm. Because Brennan and Rehnquist were invariably on opposite sides of such cases, I liked to begin by announcing: “I agree with Bill.”

  From what I have been told, I understand that Warren Burger is responsible for another unique task now performed by the junior justice. Apparently, before Harry Blackmun came aboard, the chief justice noted the decisions made by the Court on petitions for certiorari and similar matters and later reported those actions to the clerk of the court for announcement on the official order list, which was then published on the following Monday. Harry—who, as I have noted, had a deserved reputation for meticulous accuracy—observed on more than one occasion that the clerk’s announcements did not correspond with his own notes. When Harry advised the conference that the chief was not an entirely reliable note-taker, apparently everyone agreed that Harry should undertake that task; it has been performed by the junior justice ever since. I hope I am correct in remembering that I performed it with the skill and reliability of a Harry Blackmun.

  The chief, rather than the junior justice, was responsible for one significant nonjudicial aspect of our conferences. As a regular part of the proceedings, we would have a midmorning coffee break that lasted for at least fifteen or twenty minutes. It was the chief’s responsibility not only to be sure that coffee and tea were promptly served but also to select the menu, an assortment of pastries and fruits. More important, he personally dunned each of his colleagues for the ten-dollar contribution he collected every few weeks to finance our extravagant tastes. We often took those breaks after voting on one of the argued cases, and an informal understanding that usually—but not always—prevailed during those breaks was that we would suspend discussion of legal issues.

  In my judgment, Warren Burger’s contributions to the law in the years after I joined the Court have not been fully appreciated, possibly because unfriendly critics have had so much to say about Burger’s evolving views about the abortion issue. Public interest in that issue increased dramatically in the years after 1973, when Roe v. Wade was decided. As the seven-to-two vote in that case illustrates, the basic issue was not as controversial in 1973 as it became in later years. Indeed, in 1975 when the Senate Committee on the Judiciary held hearings on my nomination to the Court, no senator asked me a single question about abortion. And, as Justice Clarence Thomas confirmed during his hearings in 1991, he had not encountered debates over the case among his fellow students when he was attending Yale Law School.

  The debate that did develop in later years may, in part, have been fostered by the difference between Justice Blackmun’s opinion for the Court and Justice Stewart’s more straightforward analysis in his concurring opinion. While Blackmun’s thorough discussion of history and the evolving views of the medical profession merit careful study, and his explanation of why the word person as used in the Fourteenth Amendment does not include the unborn effectively ended the debate on that issue, I think it unfortunate that his legal reasoning placed so much emphasis on a so-called right of privacy protected by “penumbras of the Bill of Rights.”

  Far more persuasive was Justice Stewart’s explanation that the Griswold decision that had upheld the right to use contraceptives could “be rationally understood only as a holding that the Connecticut statute substantively invaded the ‘liberty’ that is protected by the Due Process Clause of the Fourteenth Amendment.” In his view, cases protecting the right of the individual, whether married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision of whether to bear or beget a child necessarily included the right of a woman to decide whether to terminate her pregnancy. He found it “difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas.”

  Neither Justice White’s nor Justice Rehnquist’s dissenting opinion disagreed with the Court’s explanation that an unborn fetus is not a “person” entitled to constitutional protection. Both of them objected primarily to the breadth of the Court’s protection of “abortions performed during the first trimester of pregnancy.”

  The importance of the capital punishment cases decided by the Burger Court is well known. That Warren Burger and Harry Blackmun, who voted to uphold the constitutionality of the death penalty, both opposed it as a matter of policy is less well known. The chief has also seldom been given the credit he deserves for his opinion in Lockett v. Ohio (1978). That case involved a challenge to her death sentence by a woman who had been the getaway driver in an armed robbery during which one of her accomplices had shot and killed a victim. Under Ohio law, the sentencer had been unable to consider such potentially mitigating factors as the defendant’s “character, prior record, age, lack of specific intent to cause death, and her relatively minor part in the crime.” Burger’s opinion reversing the challenged death sentence recognized the rights of capital defendants to introduce all mitigating evidence relevant to the punishment issue. That opinion continues to play a major role in every capital sentencing proceeding in the United States.

  Two other significant opinions that Warren Burger authored after I joined the Court have interesting histories. My favorite is the so-called snail darter case, in which the court of appeals held that the Endangered Species Act required it to enjoin the operation of the virtually completed Tellico Dam and Reservoir Project on the Little Tennessee River to save an endangered species from extinction. In the spring of 1977, when the acting solicitor general filed a petition seeking review of that order, my law clerk Dan Farber (who has since had a distinguished career as a law professor) wrote me a memo stating, in part, that the “arguments made in the [petition] are so feeble that it is surprising that the SG’s office was willing to take the appeal.”

  The Court took no action on the petition that spring, but we did discuss the case at our conference in September before the opening of the term. Not sharing Dan’s appraisal of the case, four justices—the chief, Byron White, Lewis Powell, and Bill Rehnquist—then or shortly thereafter thought the court of appeals was
so clearly wrong that its decision should be reversed without the Court’s even hearing argument. Harry Blackmun cast a vote known as a “join three,” meaning that he would cast the fourth vote to grant review if three others voted that way. The case was then relisted for Bill Rehnquist, which meant that no decision on the matter would be reached until a future conference on the understanding that he would prepare an opinion reversing the Sixth Circuit. During the first week in October, Bill circulated such a draft, and Potter Stewart and I each responded with draft dissenting opinions. Lewis Powell then weighed in with an opinion that used a different line of analysis to reach Rehnquist’s result. After reviewing the opposing drafts, Blackmun circulated a memo stating that his preference was that the conference grant certiorari; three other justices joined him in voting to do this soon thereafter.

  Normally it is the solicitor general or one of his or her assistants who represents the government in oral arguments in the Supreme Court, but there is also a tradition that at least one such argument should be made by the attorney general. Following that tradition, Griffin Bell presented the argument on behalf of the Tennessee Valley Authority contending that the public interest would be served by completing the dam notwithstanding the language in the Endangered Species Act on which the lower court had relied. The main point that he made was that the snail darter was not a species of any great importance—certainly not one that justified the refusal to complete the dam on which millions of dollars had already been spent. To emphasize that, he brought with him a small glass jar containing a snail darter. His argument was unpersuasive; indeed, at our conference on the merits, Byron White voted with those of us who had been in favor of affirming the court of appeals judgment from the beginning. According to my notes, the chief was equivocal during voting, but he apparently remembered differently or changed his mind, for soon thereafter he assigned the majority opinion to himself. The excellent opinion that he then wrote explained why the investment in the dam was less important than obeying a congressional command to protect the snail darter. He closed with a quotation of words attributed to Sir Thomas More about the importance of the rule of law: