Five Chiefs Read online

  The law, Roper, the law. I know what’s legal, not what’s right. And I’ll stick to what’s legal…. I’m not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can’t navigate, I’m no voyager. But in the thickets of the law, oh there I’m a forester…. What would you do? Cut a great road through the law to get after the Devil?… And when the last law was down, and the Devil was turned round on you—where would you hide, Roper, the laws all being flat?… This country’s planted thick with laws from coast to coast—Man’s laws, not God’s—and if you cut them down… d’you really think you could stand upright in the winds that would blow then?… Yes, I’d give the Devil benefit of law, for my own safety’s sake.

  Partly because of its quality and partly because of its history, it is one of my favorite opinions.

  Five years later Burger wrote a unanimous opinion in a case in which a Florida trial judge had divested a divorced mother of the custody of her three-year-old daughter because her new partner, whom she later married, was an African American. The Florida Court of Appeals had affirmed the order without opinion, and in February of 1983, the mother filed an application for a stay in our Court, seeking to maintain the status quo pending our review of the case. In my view, she had a strong case: the child had been in her custody for three years, there was no question about her fitness as a parent, and her argument that the race of her new partner did not provide a constitutionally acceptable basis for giving her ex-husband custody of the child was a strong one. On March 7, the Court entered an order denying the stay application. Volume 460 of the official United States Report, at page 1018, correctly states that I voted to grant the stay, but my own notes reflect that after our conference, Thurgood circulated a memo changing his vote to a grant. Neither my notes nor the official report contains any explanation for the majority’s decision.

  We did not act on the mother’s petition for certiorari until after the summer recess, but at our conference on October 14, 1983, four of us—Bill Brennan, Thurgood, Harry Blackmun, and I—voted to grant review; the case was argued in February of 1984 and decided in April. During that period of more than a year, the order giving the father custody remained in effect.

  Warren Burger’s lucid five-page opinion concluded with this statement:

  Whatever problems racially mixed households may pose for children in 1984 can no more support a denial of constitutional rights than could the stresses that residential integration was thought to entail in 1917. The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.

  The reasoning in his opinion explains why the mother’s application for a stay should have been granted. I suppose the Court reached its proper conclusion “with all deliberate speed,” but I continue to regret its failure to act more promptly.

  In 1983 Burger made two significant contributions to First Amendment law. In that year, John Anderson ran as an independent candidate for president and challenged the constitutionality of an Ohio statute that required him to meet a March filing date in order to have his name on the ballot. The chief provided the critical fifth vote backing my opinion in Anderson v. Celebrezze (1983) giving greater weight to the associational rights of his supporters than to the interests in protecting the two-party system from competition. In 1983 Burger also joined my opinion in Branti v. Finkel, which, as I noted before, held that the Constitution protects assistant public defenders from being discharged solely because of their political beliefs.

  It was in 1980 that the chief’s repeatedly stated views about the limited reach of the Second Amendment gained voice in Justice Blackmun’s opinion for the Court in Lewis v. United States. Warren Burger particularly enjoyed conversations about the history of the Constitution—indeed, his eventual decision to resign from his position as chief justice was motivated by his desire to provide appropriate leadership in the celebration of the bicentennial of the Constitution. On a good many occasions he went out of his way to criticize scholars who argued in favor of a broader reading of the Second Amendment. Although none of his colleagues shared his rather emotional reaction, I never heard anyone on the Court express any disagreement with his views about the Second Amendment. And in Lewis, Blackmun wrote on behalf of the Court that “the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia.’ ” That uncontroversial statement remained an accurate characterization of the Court’s long-settled and correct understanding of the meaning of the Second Amendment up until the Court’s unfortunate decision in District of Columbia v. Heller (2008), in which the Court held that the Second Amendment protects the right of individuals to keep a handgun in the home.

  As I have already mentioned, Burger used his position as chief justice of the United States to improve the administration of justice throughout the nation. At the Court, this effort led to many improvements as well as to some changes that I do not think were for the best. One area where Burger unquestionably made a positive difference was in securing and developing the heritage of the Court.

  Warren Burger was a great admirer of Chief Justice John Marshall. (I think he gave greater deference to Marshall’s rulings as a trial judge in the famous case against the former vice president Aaron Burr than he did to opinions of the entire Court.) Consistent with this admiration, he succeeded in having the Court acquire possession of the statue of John Marshall that had previously been located outdoors on Capitol Hill.

  Ronald Reagan’s inauguration as president was what made the acquisition possible. Prior to that event, presidential inauguration ceremonies had been conducted on the east side of the Capitol; the Marshall statue was located on the west side, where, of course, it was not visible to observers of the ceremony. When Burger learned that Reagan’s 1981 inauguration would break with tradition and be held on the Capitol’s west side, Burger requested that the statue of John Marshall be moved to a new home inside the Supreme Court. That request was approved, and the statue was moved to its present location on the ground floor of the Court. In the intervening years, the statue has reminded the thousands of tourists who visit the Court each year of the important role that the great chief justice played in our history. For those particularly familiar with the history of the Court, the statue has special significance as the work of the sculptor William Wetmore Story, who was the son of Justice Joseph Story. Justice Story not only served with Marshall but also was one of our greatest justices.

  It is also thanks to Chief Justice Burger that since 1972 the mahogany chair from which Chief Justice John Marshall presided over the Court is the seat that each new justice takes during the investiture ceremony. Whether or not members of the audience are impressed by that detail, I can testify without fear of contradiction that every one of us who sat in that chair as our presidentially signed commission was read in open court will never forget the experience.

  Burger showed special respect for Marshall and the history of the institution that he led in other ways as well. He is entitled to credit for creating the position of curator of the Court and for organizing the Supreme Court Historical Society. That society regularly publishes scholarly articles in its periodical, sponsors important research about the early documentary history of the Court, and operates the kiosk. And to help the chief perform the nonjudicial responsibilities that I described in the second chapter of this book, Burger persuaded Congress to authorize the appointment of an administrative assistant for that purpose.

  Burger obtained portraits of both of the litigants in the famous case of Marbury v. Madison and had them hung in the small dining room on the second floor. When only a few members of the Court are present for lunch, instead of using the regular justices’ dining room, they frequently decide that the Marbury v. Madison room will provide a better setting for friendly conversation. Normally, when t
he justices lunch together in either of those adjacent rooms, the conversation does not include any discussion of Court business. That is one of the traditions that preserve the genuine collegiality among the members of the Court.

  A similar tradition that Burger initiated and that his successors have faithfully followed may have been inspired by his being a connoisseur of fine wines. Before every justice’s birthday that occurred when the Court was in session, he sent around a note announcing the date when we should all be sure to be present at the lunch in the justices’ dining room on the second floor to celebrate the occasion. He provided the wine that was used for the toast that preceded the singing of “Happy Birthday”; the rendition was always enthusiastic and heartfelt, even if the harmony left much to be desired. Like the practice of shaking hands with every member of the Court before going on the bench to hear oral argument, that custom played an important role in maintaining the cordial relations among the nine individuals who sometimes used pretty strong language when expressing disagreement with the views of the majority on more important issues.

  I think Warren Burger is also entitled to credit for several improvements in the Court’s procedures and machinery that provide significant savings in the scarce time of busy justices. Three involve changes to the Court’s rules. These include the rule imposing maximum limits on the number of pages in the parties’ briefs, the rule requiring that the question presented by a petition for certiorari be set forth on its first page, and the rule prescribing the colors of the covers of the different categories of printed documents that the parties file. For example, a petition seeking review via certiorari will have a white cover, the response an orange one, and any reply to the response a tan one. If the Court grants the case, the parties then submit merits briefs. The petitioner’s brief has a light blue cover, that of the respondent has a red cover, and any reply comes in yellow. Interested nonparticipants, known as amicus curiae—that is, friends of the court—also often submit briefs. Amicus briefs filed before the Court decides whether to hear a case have cream-colored covers; those filed after the Court grants review are green—dark green if they support the petitioner, and light green if they support the respondent. And whenever the United States files a brief, it uses a gray cover. Being able to recognize instantly that, say, the red brief is the respondent’s brief on the merits may save only a few seconds each time a justice or a clerk looks for it, but the total time saved as a result of the rule is enormous.

  Chief Justice Burger’s leadership in introducing electronic word processing into the routine work of the Court also resulted in unquestionable benefits. The change, along with the consequent closing of the print shop, has saved justices and their staffs countless hours in performing their routine duties. The risk that the Court will be unable to adjourn until well into July—as happened in my first term as an associate justice—is now virtually nonexistent.

  Perhaps the contrast between the pre-Burger and post-Burger technologies is best illustrated by noting another technological advance. Before Burger, the Xerox machine was unknown to the Court.

  It has always been my judgment that Warren Burger was an excellent presiding officer during oral arguments. He was courteous and fair to counsel. He did not hesitate to allow a lawyer a few extra minutes when questioning from the bench had taken up so much time that the advocate had not had a fair opportunity to make his or her argument.

  Burger was not, however, equally proficient as a presiding officer at our conferences. Four shortcomings are worthy of note. His introductory description of the issues in an argued case was sometimes incomplete or more fairly described as a statement of his own views about the case. Perhaps for that reason, either Bill Brennan or Potter Stewart would often introduce his own presentation with a neutral statement of the issues before commenting on the merits. Potter was particularly skillful in summarizing complexities in simple, lucid language; he was unusually brilliant and articulate.

  On occasion, instead of waiting until each of his eight colleagues had spoken, the chief would interrupt the discussion to add a point he had omitted or even to repeat a point that had already been made. He was less well prepared, and less articulate, than either of the men who held the position after him.

  Based on conversations that I have had with former clerks of Chief Justice Warren, I understand that Warren followed the same practice with regard to the order of voting that Chief Justice Vinson had—namely, after introductory comments were made in order of seniority, the most junior justice was the first to vote, and the chief was the last. Warren Burger must have been responsible for what I regard as an unfortunate reversal in the order of voting.

  Of greater importance, in cases presenting multiple issues, he did not always take accurate notes about the views expressed by each of his colleagues on each issue. For that reason, there were cases in which he assigned the majority opinion to a justice whose views on one or more issues did not command a majority. There were also occasions on which he assigned the majority notwithstanding his own continuing uncertainty about the proper disposition of the case. The better practice—followed by his successors—would have allowed the next senior justice in the majority to make the assignment. An assignment that he made to me in my first term on the Court illustrates the sometimes tentative character of the views he expressed at conference.

  Buffalo Forge Co. v. Steelworkers (1976) presented the question whether a federal court could enjoin a union from engaging in a sympathy strike that was expressly forbidden by the union’s collective bargaining agreement. At our conference in March, five of us—the chief, Bill Brennan, Harry Blackmun, Lewis Powell, and I—voted in favor of the employer’s position that the no-strike clause was enforceable even before the dispute had been arbitrated. The chief assigned the majority opinion to me, and Byron White stated that he would write a dissent.

  After I circulated my draft, Thurgood Marshall changed his vote and joined my opinion. While that welcome letter led me to believe that I would have six votes supporting my opinion, Harry Blackmun responded with a letter stating that after reading my draft he had changed his mind and planned to join Byron’s dissent. Finally the chief circulated a note advising us that although he favored my result, he had concluded that it required action by Congress, and therefore he was joining Byron, which made the vote five to four in Byron’s favor. In the next few days Byron and I redrafted our respective opinions so that the case could be announced on July 6.

  Perhaps that sequence of events proves merely that Byron was more persuasive than I. It was, however, also consistent with friendly advice that Potter Stewart gave me in a conversation shortly after I joined the Court. He said, in substance, that the author of a Court opinion should always keep in mind the possibility that either the chief or Harry, or possibly both, might not adhere to the position expressed at conference.

  Of course, there are a fair number of cases in which some justices disagree with the majority at the conference after oral argument but ultimately are persuaded to join its opinion. Byron White, on occasion, concluded that an issue was not sufficiently important to justify the preparation of a dissenting opinion; he referred to his reluctant join in such a case as a “graveyard dissent.” Some of our greatest justices followed that practice many years ago. In my judgment, however, the institution and the public are better served by an accurate disclosure of the views of all of the justices in every argued case.

  I can recall—with some pride—announcing at least two significant unanimous opinions in cases in which the Court had originally been divided at its conference. In my first term, we heard reargument in Mathews v. Diaz (1976), a case involving the welfare rights of alien residents. The eight justices who had heard the argument the term before had been equally divided; they eventually all joined my majority opinion upholding a federal requirement that aliens have five years of continuous stateside residence and be admitted to permanent residence in order to participate in a federal medical insurance program. And in the m
ost frequently cited opinion that I ever wrote—Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984), a case in which we held that the court of appeals should have accepted the administrative agency’s interpretation of an ambiguous provision in the statute—Byron White had assigned the opinion to me because both the chief and Bill Brennan had voted the other way. After I circulated my draft majority, the chief joined without comment but Bill raised a question about my reading of the statute. I visited his chambers to discuss the point with him and his law clerk Michael Klausner (who is now a professor at Stanford Law School). After our meeting, I think he joined my draft without requiring any changes.

  I also disagreed with the chief on a matter of writing conventions. This became clear during a tea I shared with Burger in his office. When the chief wanted to discuss a controversial matter with a colleague, he would often extend an invitation for that colleague to have a cup of tea with him in his chambers. On the occasion in question, he and I discussed the use of the word we in Court opinions. I found the issue particularly interesting because I had had a similar discussion with Tom Fairchild when he was the chief judge of the Court of Appeals for the Seventh Circuit. On that court, I had written a few opinions in which I made it clear that my vote was based on stare decisis—the doctrine that judges should adhere to rules announced in earlier cases—rather than on my own views about the issue. Tom had persuaded me that the law would be better served by using the word we to confirm the fact that the court was a continuing body bound by stare decisis regardless of our individual views.