Five Chiefs Page 9

  What I regard as the virtual incoherence in Justice Douglas’s opinion in Griswold is no doubt attributable to his agreement with Justice Black’s dissent in an earlier Fourteenth Amendment case—Adamson v. California (1947). There, Black had a different interpretation than that of Justice Harlan, who viewed the scope of the liberty that the due process clause protected as standing “on its own bottom” rather than as a mirror reflection of the first eight amendments to the Constitution. Black, by contrast, wrote that “the first section of the Fourteenth Amendment, taken as a whole”—including its guarantees of the “privileges or immunities of citizenship,” freedom from deprivation “of life, liberty, or property, without due process of law,” and “the equal protection of the laws”—required states to respect all of the rights identified in the first eight amendments to the Constitution. He excoriated his fellow justices for instead letting themselves “roam at will in the limitless area of their own beliefs as to reasonableness.” He firmly believed that the liberty protected by the Fourteenth Amendment did not extend an inch beyond the Bill of Rights. (I remember Potter Stewart telling me that Justice Black would refuse to join any opinion that cited either Pierce or Meyer.) In later cases, the Court has firmly rejected Justice Black’s rigid view.

  Shortly before the end of the 1967 term of the Court, Warren attended a June 13, 1968, meeting at the White House at which he handed President Johnson a letter stating his intention to retire “effective at your pleasure.” The president then nominated Associate Justice Abe Fortas to become the next chief. Fortas, however, was never confirmed because of allegations that he had both received financial benefits from a former client and acted as an adviser to the president while a member of the Court. The resulting controversy led to his departure shortly after the president’s term of office expired. Thus, the resignation of Earl Warren did not become effective until confirmation of Richard Nixon’s appointment of a new chief with a surprisingly similar name—Warren Earl Burger.

  V

  Warren Burger

  Warren E. Burger, Chief Justice (1969–1986)

  WARREN BURGER WAS PRESIDENT of the student council at the St. Paul, Minnesota, John A. Johnson High School, from which he graduated in 1925. In college, he sold insurance to support himself, then earned a magna cum laude degree in 1931 from St. Paul’s William Mitchell College of Law. He entered private practice in Minnesota and became active in politics. He supported Harold Stassen’s successful bid to be elected governor of the state, and his unsuccessful attempts to become the Republican candidate for the presidency. In 1952, when it became clear that Stassen would not be nominated, Burger reportedly led the Minnesota delegation in its decision to support Dwight Eisenhower. After becoming president, Eisenhower made Burger assistant attorney general in charge of the civil division of the Department of Justice. Three years later, the president selected him to fill a judicial vacancy on the court of appeals for the District of Columbia Circuit, where Burger served until 1969. That year, President Nixon decided to name him chief justice. He was confirmed by a vote of seventy-four to three.

  I would not meet Warren Burger until three years later, during a seminar for newly appointed federal judges held at the Dolley Madison House a few blocks from the White House. Although I had been a judge on the United States Court of Appeals for the Seventh Circuit in Chicago since November of 1970, that was my first opportunity to attend such a conference. It was a memorable event for me. I imagine that it was less so for Burger, who had by that time already written five landmark opinions and transformed how the Court handled its business.

  Burger’s opinion for the Court in United States v. Nixon (1974) required President Nixon to produce the tape recordings that eventually led to his resignation. The decision not only had a historic effect on American politics and society but also powerfully illustrated the integrity and independence of the Court. It may well have done more to inspire the confidence in the work of judges that is the true backbone of the rule of law than any other decision in the history of the Court.

  Though not nearly as famous as the decision in Brown v. Board of Education, Warren Burger’s unanimous opinion for the Court in Reed v. Reed (1971) marked the emergence of an approach to the guarantee of equal protection in the Fourteenth Amendment that would make gender-based discrimination—like race-based discrimination—constitutionally suspect. The case held that Idaho’s desire to avoid hearings to resolve contests between qualified applicants for appointment to administer a decedent’s estate did not justify a rule providing that the tie always go to the male applicant. The chief’s brief opinion was remarkably persuasive, possibly because it avoided any elaborate analysis and simply stated that a rule mandating a preference based solely on gender was arbitrary and hence contrary to the equal protection clause of the Fourteenth Amendment. The opinion silently rejected the notion that a habitual way of thinking about different classes of equally qualified individuals provided a legitimate basis for a discriminatory rule.

  The district court’s orders requiring and supervising the desegregation of the schools in Charlotte, North Carolina, gave rise to several appeals, two of which produced unanimous Supreme Court opinions authored by Warren Burger. The first opinion, in Swann v. Charlotte-Mecklenburg Board of Education (1971), made it clear that district courts have broad remedial powers in segregation cases, specifically including the authority to approve busing as a remedy. In the second of those two opinions, the Court invalidated a state statute that flatly forbade assignment of any student to a particular school on account of race or for the purpose of creating a racial balance or ratio in the schools. The statute, the Court explained, impermissibly intruded upon the remedial powers of the courts. Along similar lines, the chief also pointed out that “school authorities have wide discretion in formulating school policy, and that as a matter of educational policy school authorities may well conclude that some kind of racial balance in the schools is desirable quite apart from any constitutional requirements.”

  While not as well known as his opinions in the Nixon tapes case, the sex-discrimination case, or the desegregation cases, Burger’s opinion in Morrissey v. Brewer (1972) marked a major change in the law affecting the rights of prisoners. The case held that a convicted felon who had been released on parole—that is to say, permitted to live a normal life as long as he did not violate any of the conditions of his parole during the term of his original sentence—had a constitutionally protected interest in his conditional liberty that could not be revoked without a hearing. The case effectively repudiated the old rule that a prisoner could be treated as a slave.

  Burger’s opinion in Morrissey provided the basis for the opinion that I wrote for the court of appeals in United States ex rel. Miller v. Twomey (1973), which held that a prisoner’s good-time credits were also protected from arbitrary cancelation. As I shall explain, that opinion provided the basis for my response to questions posed to me by Senator Edward Kennedy during my confirmation hearings.

  Notwithstanding the significance of these five early Burger writings, it was another set of Burger’s achievements preceding my tenure on the Court that foreshadowed his signal contribution to American law: improvements to the administration of justice within and beyond the Court. While Earl Warren had been interested in deploying American-style rule of law abroad to achieve world peace, Warren Burger concentrated on improving the administration of that legal system domestically in both federal and state courts. He was thus a strong supporter of the work of the Federal Judicial Center that Congress had authorized in 1967 to provide education and assistance to federal judges. The creation of the National Center for State Courts, in 1971, was also largely due to his efforts. His interest in the center’s educational programs remained high in subsequent years.

  Even more active in administrative matters at the Supreme Court itself, Burger made changes that have had a lasting effect on its work. One of the most obvious—though often forgotten today—was the change in the shape of t
he bench that took place during the winter recess of the October 1971 term. What was formerly a straight bench, which prevented most of the justices from seeing any colleagues other than their immediate neighbors, was angled in three sections. As a result, all nine justices can now see and hear one another as well as the advocates. Whereas the two most junior justices—seated at opposite ends of the bench—once had great difficulty hearing exchanges, now all nine members of the Court have equal access to one another as well as to the advocate.

  Each justice has access to one of the pages sitting behind the bench on seats that are not visible to most people in the courtroom. The justices normally have the written briefs in the case being argued on the bench with them, but they also each have two pads of paper. One, a blank pad, is for notes that a page will deliver to a colleague at the other end of the bench or occasionally to a guest of a justice in the audience. The second pad contains forms on which the justice may request the page to obtain a specific court opinion. Most such requests are for previous Supreme Court opinions gathered in the volumes shelved in the area immediately behind curtains that are opened when the justices ascend the bench. Prompt responses to requests for books in the library on the third floor are possible because that area is served by a book elevator. Promptness is important because requests are usually motivated by an interest in either checking the accuracy of a statement made by counsel or a colleague or providing the basis for propounding questions to counsel.

  Other equipment available to the justice but not visible to the audience includes a water pitcher, a goblet, writing materials, a drawer (in which I kept a pocket-size copy of the Constitution), and a toggle switch to turn on the microphone when the justice starts to ask a question. By long-standing tradition each justice also has a metal spittoon next to his or her chair; I have never seen anyone make use of that elegant remnant of tradition.

  When the microphones are turned off, a justice will occasionally exchange a comment or two with his immediate neighbor. For most of our careers, Nino Scalia and I sat next to each other, and I was the beneficiary of his wonderfully spontaneous sense of humor. One morning when we heard a case involving a defendant who had refused to answer questions about the crime under investigation but volunteered a long incriminating statement about a more serious offense and a second case in which the defendant had refused to sign a written confession while verbally describing inculpatory facts in great detail, Nino whispered to me that this must be our “dumb defendant day.”

  On another occasion many years ago, while listening to an inept argument, Potter Stewart, who had a powerful bass voice and was sitting on the other side of Lewis Powell, my immediate neighbor, failed to turn off his microphone before intoning in what he intended to be a whisper: “Where did this guy come from?” I’m sure his booming voice was heard throughout the courtroom.

  I believe Burger was the primary person responsible for a change in the rules governing oral arguments that has had lasting significance. Oral arguments matter because they are often the first time that the justices speak with one another concerning the merits of the case. While it is often said that a lawyer can lose but cannot win a case at oral argument, I view that dichotomy as misleading. Lawyers seek to highlight key points for the justices and, equally important, assist the justices as they discuss the case among themselves. Thus, it is the one time when lawyers and justices labor together in the same room, albeit not always collaboratively, on the work of the Court.

  When Burger joined the Court, the rules authorized two hours for oral arguments, with each side having a full hour. While the Court occasionally placed cases on the summary docket, which allowed each party only thirty minutes, on July 1, 1970, the Court implemented its present rule limiting the time for each advocate to thirty minutes in all cases. The primary concern motivating that change was the overcrowded condition of the docket that then required afternoon sessions on every argument day. (Because the Court’s shrinking docket has meant that that concern no longer exists and because several justices now consume so much time asking leading questions, it would make sense for them to take a second look at that rule.)

  While Burger spent the years before our first meeting working on landmark cases and improving the administration of American justice, I supplemented the last few years of my practice with a different kind of high-minded pursuit: I learned to pilot a single-engine plane and began flying on a regular basis. In 1968 I paid $10,500 to become the proud owner of a one-year-old Cessna 172 with the call sign 1688 F. During the two summers before I became a judge, I commuted between my second home in Michigan and Meigs Field on the lakefront of Chicago in eight-eight foxtrot. The change in my employment when I became a judge in 1970 involved a cut in pay that made it necessary to sell the Michigan house, but I kept the plane, which I used on weekends.

  Coincidentally, Robert Sprecher, who also left private practice when he became the junior judge on the court of appeals a few months after I did, found it necessary to sell his summer home in Fox Lake, Illinois, when he became a judge. The fact that the salaries of federal judges are significantly lower than the market value of their services as practicing lawyers has prevented many qualified lawyers from accepting the opportunity to perform judicial service. But because I have always enjoyed and been gratified by the opportunity to serve as a federal judge, I have never regretted my career change.

  Group photograph of Court of Appeals for the Seventh Circuit (1975).

  Seated from left: Judge Luther Swygert, Senior Judge John Hastings, Chief Judge Thomas Fairchild, Senior Judge Latham Castle, and Judge Walter J. Cummings. Standing from left: Judge Philip W. Tone, Judge John Paul Stevens, Judge Wilbur Pell, Judge Robert Sprecher, and Judge William Bauer. Used with permission of the United States Court of Appeals for the Seventh Circuit.

  On one Saturday I flew to DePauw, Indiana, to hear Harry Blackmun give the commencement speech at his daughter’s graduation. After his talk, I introduced myself, explaining that I had been recently appointed to the Seventh Circuit by President Nixon. Early the next week, Bob Sprecher, who had joined the court shortly after I had, received a gracious letter from Harry saying how nice it was to have met him at DePauw. Years later, after I became a colleague of Harry’s, I enjoyed recounting that event as evidence of (a) what a nice guy Harry was, and (b) his having, despite his reputation for meticulous accuracy in all of his work, in fact made at least one mistake.

  My Cessna also provides one of the two reasons for remembering the significance of my first meeting with Warren Burger. The meeting occurred shortly after I landed at Dulles International Airport, completing my first solo flight to a destination from which I could not return to Chicago on the same day. The second reason is that it gave me an opportunity to talk to the chief about the unanimous opinion he had recently announced in Groppi v. Leslie, a case in which a Catholic priest had challenged the constitutionality of a resolution adopted by the Wisconsin legislature. Groppi had led a parade protesting cuts in welfare payments onto the floor of the general assembly and publicly stated to his cheering supporters that they had captured the capitol and intended to stay until the legislature restored funds for welfare recipients. Their occupation of the assembly lasted from approximately midday to well near midnight. Thereafter, the protesters were kept out of the state capitol building by police, sheriffs, and the National Guard. Those facts would seem to provide ample support for bringing charges against Groppi. But rather than allowing a prosecutor to initiate criminal proceedings, the legislature instead took the unusual step two days later of adopting a resolution finding Father Groppi guilty of contempt and sentencing him to prison. In its opinion denying Groppi’s petition for habeas corpus, the Wisconsin Supreme Court—a well-respected state court composed of elected judges—had taken judicial notice of facts reported in the press.

  Nevertheless, Jim Doyle, the federal district judge sitting in Madison, granted Groppi’s petition for habeas corpus after Groppi brought suit before him to challenge
his confinement. Doyle reasoned that even though there were rare situations in which a legislature might hold a party in contempt, the Groppi resolution was flawed because it was adopted without giving him any notice or affording him an opportunity to present a defense or information in mitigation. A few days before I was sworn in as a judge, a Seventh Circuit panel composed of three excellent judges—John Hastings, Walter Cummings, and Wilbur Pell—reversed Judge Doyle, concluding that no hearing was necessary because the contemptuous conduct had occurred in the presence of the legislators who had adopted the resolution.

  A few days after I was sworn in as a circuit judge, John Hastings, who had been appointed by President Eisenhower and had served as the chief judge of the circuit court, paid me a visit and we had the first of many conversations about the court, our experiences as practicing lawyers, and the law. When he was the chief judge, he had attended a number of judicial conferences in Washington at which Earl Warren had presided. While John was not an admirer of Warren’s jurisprudence, he had high praise for the way he chaired judicial meetings and for his friendly personality.

  Discussing his own approach to judicial work, John told me that he always wrote the first draft of his opinions (as opposed to having a clerk do so) because, as he explained, if you write a complete and accurate statement of the facts, “the rest of the opinion will write itself.” In later years, he expressed concern that, as he grew older, he might not realize that the quality of his work was declining, and he asked me to promise that I would tell him if I thought that was happening. I never had to do so, but I had that conversation in mind when I obtained a similar commitment from Justice David Souter regarding my own work many years later. When John passed away in 1977, I flew to Washington, Indiana, in eight-eight foxtrot to attend his funeral.