The next two days, Monday and Tuesday, were a whirl of paper. Drafts and counterdrafts of proposed orders floated around. Scribbled ideas and proposed changes flew from chamber to chamber as the Justices added their thoughts. The main actors were the Chief, Stewart, Harlan, Brennan and Marshall. Black and Douglas had apparently decided on their view. White was leaving most of the work to the others. His main concern was unanimity.
The eight-man Court seemed deadlocked
4
to
4.
Black, Douglas, Brennan and Marshall were on one side, agreeing on immediate desegregation and no full Court opinion. On the other side were Burger, Harlan, Stewart and White trying for something firm but less absolute, more practical, more sympathetic to the concerns of the Executive Branch.
Burger worked hard on his draft opinion. When it was typed he gave rough copies only to those who seemed to be on his side—Harlan, Stewart and White.
Stewart read it quickly. It confirmed his worst suspicions. Burger was a part of the Nixon administration. The draft opinion read like an administration press release. It was an unbelievable document, listing all the administrative difficulties involved in school desegregation, lauding H.E.W., flattering the administration for its efforts in the face of the problems. It was also a confused, rambling account, tracing the history of desegregation cases, offering all the arguments for delay and then, like an O. Henry short story, it ended with a surprise. No delays would be granted.
Stewart knew that if the opinion were issued, it would effectively make law out of the administrative difficulties encountered by the government in enforcing desegregation. It was a thoroughly disreputable effort. He told one of his clerks the opinion was too abstract and asked him to draft something that would stick to the facts in this case, make no dangerous statements, and steer between the Chief and Black.
In the meantime, Harlan was polishing off another draft order—one last effort to bring Brennan and Marshall over to his side. He decided to set two specific deadlines. First, the Court of Appeals would be instructed to decide on specific desegregation plans by November
10
and to issue an order putting those plans in effect. He would allow two months for the details to be worked out. Actual desegregation had to take place by December
31.
Students would attend desegregated schools after that date. He still called this "interim relief." He was certain that once the desegregation was initiated, there would have to be some changes to accommodate unforeseen developments. This schedule would give the school board time to implement the plans, but told them in no uncertain terms that they could not wait until the coming year.
Harlan circulated his second draft order on Tuesday. Stewart's draft opinion was also ready. With the Chief's draft, the more conservative group now had three documents to go over. They caucused. Harlan indicated he had no support from Brennan and Marshall for his latest effort.
But more significantly, the more conservative members could not begin to agree among themselves. For his part, White was unwilling to spend any more time on the issue. He disliked giving a disproportionate amount of his schedule to politically sensitive cases. The Court had over a hundred cases per term. White was more interested in the bottom line than in every intermediate step. One by one, they decided that they migh
t as well give in and join Bren
nan. It was more important that the Court be unanimous, perhaps just as important that they act that week, to emphasize their commitment to desegregation. By the end of the day all four had approved the Brennan order with a few changes in wording. There would be no full opinion to follow. It was to be issued as a two-page
per curiam,
meaning that it was the opinion of the Court without a designated author. Though it was an opinion, it read like an order, with a short introduction and five numbered paragraphs directing the Fifth Circuit.
Black had won every major point. "All deliberate speed" was declared over, "no longer Constitutionally permissible." No delay would be permitted. In effect, the Court ruling said that the deadline had passed fifteen years ago. The final opinion stated, "The obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools." The Fifth Circuit was directed to issue its order "effective immediately." The H.E.W. plans could be used insofar as they helped achieve immediate and total desegregation.
Stewart thought the case was a demonstration of the new Chief's inability to lead them through a crisis. The Court's reputation was a result of its bold desegregation decisions, and Burger had done nothing to sustain that reputation. The Chief's job was to harmonize and synthesize. The Court had agreed on a two-page order and had issued it quickly, but the Justices had not agreed on its legal grounds or the reasoning behind it. Burger, Stewart concluded, had failed to bring about a true consensus.
Stewart felt that Earl Warren would have explained to Black that no one was going to dissent, period, and that they would all work something out. Black would never have pulled such a stunt with Warren.
Harlan withheld judgment on Burger. Given Black's obstinacy, any Chief Justice would have had difficulty with this situation, Harlan felt. But he did view the resolution as particularly lamentable. Though the Court had acted unanimously, it had handed down a meaningless and unworkable abstraction to the lower courts. What could "immediate" and "at once" and "now" mean to lower-court judges faced with fact-finding and competing interests that had to be weighed?
Burger was elated that the decision was unanimous.
The next morning, Wednesday, October
29,
six days after oral arguments, the decision was announced. The news stories noted that the decision was a setback for the Nixon administration—the end of dual school systems, and without further delay. Senator Strom Thurmond of South Carolina decried the decision, while praising the President. "The Nixon Administration stood with the South in this case."
The new Court under Burger, declared former Alabama Governor George Wallace, was "no better than the Warren Court"; the Justices were a bunch of "limousine hypocrites."
One of Burger's clerks congratulated him on standing up to the administration, saying this case would show the country that the Chief wasn't Nixon's puppet. Burger was flabbergasted. "Do you think people really think I'm a Nixon puppet?"
At the White House, the President and his strategists were content. Nixon had lined up his administration squarely in favor of reasonable delay. The Supreme Court had said no more delay. Elections could be won or lost on the question. White Southerners would be enraged by the decision, but it was the Court's fault, not his.
Nixon's Southern strategy suffered another defeat a few weeks later. The President had nominated conservative South Carolinian Clement F. Haynsworth, Jr., chief judge of the Fourth Circuit Court of Appeals, to fill Fortas's seat on the Supreme Court. But the liberals—by then recovered from the shock of the Fortas affair—had counterattacked.
Labor and civil rights groups opposed the confirmation, shrilly denouncing Haynsworth's opinions as consistently anti-union and against school desegregation. The liberals picked up the support of moderate Republicans when it was discovered that Haynsworth had participated in a case indirectly involving a company in which he held stock. It wasn't a major conflict of interest, according to experts who testified. But, added to the raw political opposition to Haynsworth, it was enough to tilt the votes against him. On November
21,
the Senate rejected Haynsworth's nomination
55
to
45-
Burger had been looking forward to the arrival of a conservative vote that might help him shift the Court's direction. He blamed the White House for mishandling the nomination. Haynsworth was a victim of Washington's "jungle" politics, Burger told his clerks. While he himself knew how to operate in that jungle, the hapless Haynsworth, Burger said, simply did not. He had not performed well at his hearing before the Senate Judiciary Committee. That had done him in.
Brennan, though he held out little hope that Haynsworth would share many of his views, had thought him nevertheless an acceptable candidate. Just after the nomination was announced, Brennan had sent Haynsworth a congratulatory note. Black also felt the Senate had made a serious mistake in rejecting Haynsworth. He told friends he thought Haynsworth was a "decent man" who would make a fine Justice. He was fond of him. The night the nomination was defeated, Black had him over for dinner at his house on Lee Street.
For the Court, the defeat meant more months without a ninth Justice. Numerous petitions for Supreme Court review were pending. Four votes were needed before the Court would take a case, and dozens of cases were on hold because they had only three votes. They had been put in a "hold for Haynsworth" file, to see if he would cast the fourth vote. Now the file was renamed "Hold for Justice X." The number of petitions waiting there grew each day.
Harlan had looked forward to Burger's arrival, and the first Friday conferences since he had come seemed more open. Everyone spoke more freely, more persuasively. There was not the sense, as there had been at times under Warren, that the debate was a sham. The Warren-Brennan pre-conference strategy sessions, during which the two Justices coordinated their positions, were things of the past.
Harlan thought it possible that if Burger and the new Justice were independent and open to reason, new majorities might emerge once Fortas's seat was filled. Harlan despised coalitions, revering reasoned discourse among independent Justices. But in the first months of Burger's tenure, the new Chief gave Harlan reason to pause. Harlan confided to his clerks that Burger seemed inclined to slide around issues in order to achieve certain results. He paid less attention to legal reasoning than Harlan thought necessary. He was willing to decide cases without explaining the logic or the Constitutional grounds, and without responding to each argument he had rejected.
Harlan did not believe that the Court should reach out to decide questions that were not specifically before it in a case. But at the same time, the Court had to address issues that were fairly presented. When faced with one of the numerous statutory cases, those calling upon the Court to interpret the meaning of a law or to establish the intent of the Congress that had passed it—the Court should not avoid its responsibility. In one such case
(Tooahnippah
v.
Hickel),
the issue was whether the Interior Department had the power to invalidate an American Indian's will leaving personal property to his niece and nothing to an illegitimate daughter. The vote was
7
to 1
to reverse the Interior Department's action, with Black the lone dissenter. Burger assigned himself to write the opinion for the majority. The case was a "peewee," Harlan's term for insignificant matters that came before the Court, but he objected to the Interior Department's high-handed paternalism.
When the Chief's first draft came around, Harlan discovered that Burger had limited himself to the question of whether the federal courts had either the jurisdiction or the power to review an order of the Secretary of the Interior disapproving an Indian will. The Chief had not decided the question of whether the Secretary of Interior had properly exercised his power. Instead, the case was remanded—sent back—to the Court of Appeals for decision. Harlan was distressed that Burger would dispose of a case without addressing all the basic questions. The case might be a "peewee," but every case deserved as much time, effort, and explanation as it took to make the issues clear.
Harlan wrote a memo to the other Justices suggesting that the Court resolve the real question and provide some guidance. In response, the Chief produced a second draft in which he added a single, final paragraph saying that the
Department's decision was "arbitrary and capricious" and was therefore overturned.
To Harlan, this was not an adequate explanation. The Chief had not reviewed the applicable statutes and legislative history nor had he surveyed the prior administrative decisions of the Interior Department. Burger had reached the correct result, as far as Harlan was concerned, but there was simply no explanation for the decision in his draft. The Chief would overrule one particular decision of the Interior Department, but leave unclear the scope of the Secretary's power to disapprove wills.
After his own careful revi
ew, Harlan circulated an opinion explaining how the Secretary had exceeded his authority. Since he agreed with the Chief's result, he joined the Chief's opinion, but he added his own "concurring" comments to be published simultaneously with Burger's opinion.
The Chief did not like concurrences. He felt that they were often nitpicking, that they added little to the law, and that at times they split majorities. Separate opinions by each individual Justice giving his precise reasoning were generally an unnecessary exercise. They confused as much as they enlightened the lower court judges, Burger felt. Also, concurrences detracted from the main opinion and were, in some cases, almost an insult to the author assigned for the majority.
Burger decided in this case to borrow much of Harlan's concurrence, hoping that Harlan, seeing his reasoning adopted, would not publish. But Harlan s
till wasn't satisfi
ed. Burger's next draft was much better, but not good enough for Harlan. Burger had reached the crux of the case, but in a mediocre way, by simply paraphrasing sentences from Harlan's opinion. He had not used Harlan's citations from prior Court decisions, or his review of the legislative history and prior administrative practices that was so critical in determining the intent of the Congress that had passed the law.