There was a more personal reason, Burger said, that made him believe the Court shouldn't hear the case. Apparently there was a majority for Harlan's point of view. But in his first year as Chief, Burger said, a decision that would be viewed as another Court effort to tie the hands of the police would look awful. The press could make such a decision embarrassing both to him as Chief and to the Nixon administration.
Harlan could not believe that Burger was advancing such a blatantly political argument. Harlan himself felt that a judge should be wholly removed from politics. He never even voted in presidential elections. The Court was independent, removed from the political push and pull. The administration, the press, personal embarrassment— real or imagined—should have no effect on the Court or its deliberations. Harlan did not wish to lecture the Chief, however, so all this went unsaid. Aware that Burger obviously considered him an ally and a friend, Harlan simply told Burger that he did not think he could withdraw his vote.
Burger pressed.
Harlan found it difficult to say no to the Chief. He proposed a compromise. He would withhold his cert vote and they would hold the case over. He would then vote to grant a hearing for the next term.
Burger thanked him. That would do.
In considerable but controlled agitation, Harlan described Burger's visit to one of his clerks. There were, he said, reasons not to take the case. And he certainly didn't consider himself a judicial activist. But to worry about how it would "look" in the news media, or for the administration? Incredible, Harlan said, shaking his head in disbelief.
The clerk saw that Harlan was distraught. He urged him not to do as Burger wanted. But Harlan had promised, and the case was held for the next term. He would not refuse a personal request from the Chief Justice.
Often the Chief found that his conservative colleagues, with their concern with precedent, caused him as much difficulty as the liberals. In one part of a complicated criminal case
(Coleman
v.
Alabama),
the conference had voted
7
to
1
that a person charged with a crime did
not
have a right to an attorney at a routine preliminary appearance before a magistrate to determine whether there was sufficient evidence to bring the person to trial. Harlan, the lone dissenter, thought that the preliminary hearing was part of the prosecutorial process. Though he didn't like it, the logic of precedent dictated that the person who had been charged was entitled to an attorney.
Pleased to see Brennan upholding the conviction—refusing to extend the right to have an attorney—Burger assigned him the case. Brennan was relatively quick to circulate his majority opinion. It was not well received. Black announced that he had reconsidered and would join Harlan in dissent. Brennan was upset that his majority draft had apparently triggered Black's switch.
Burger sent Black a memo chiding him gently. Black, the avowed strict constructionist, always claimed that his judical views were drawn literally from the Constitution, and from nowhere else. He carried a Government Printing Office pocket edition of the Constitution with him. "Dear Hugo," the Chief's memo said, "Please tell me what article or amendment covers this."
Black responded the next day. "Dear Chief, Amendment VI." He went on to quote from the amendment, which said that
"in all criminal prosecutions, the accused shall enjoy the right
...
to have the assistance of Counsel for his defense."
Although the Sixth Amendment doesn't go into detail on when,
...
it would disregard reality to say that a preliminary trial is not an important part of a prosecution under which a state is preparing to punish a man
...
Where is there anything in the Constitution that says that although a man has the right at the time of prosecution, he cannot claim that help the first time he needs counsel?
Black's vote was firmly with Harlan.
That left the vote 6 to
2,
with the Chief still on the winning side.
Next, Harlan circulated his dissent. Though he had dissented from most of the Warren Court decisions that extended rights to the accused, and still felt they were incorrect, Harlan now chastised the majority for its apparent willingness to disregard the logical implication of its recent decisions. In the landmark
Miranda
decision
(Miranda
v.
Arizona)
in
1966,
with Harlan, Stewart and White dissenting, the Court had decided that an arrested individual had the right to an attorney. Whatever a person said without an attorney present could not be admitted in a trial or used against him, unless he waived his right.
The previous term, Harlan reminded them, the Court, with the same trio in dissent, said that those rules apply even when a suspect is questioned in his home. How, Harlan asked, could the Court now say that a potential defendant has the right to an attorney at a police station or in his own home, but not the first time he enters a courtroom?
Brennan was worried. Though he still had the votes, he was uncomfortable that the conservative Harlan was making the liberal argument. Also, Brennan could see the logic of the position. The votes would likely slip away from him sooner or later. Douglas and Marshall were not firm, and he himself was having second thoughts. If the others switched on that one section, Harlan would end up writing the whole opinion. Brennan did not want to lose control over the other sections of the opinion he had already drafted.
In a recent case
(Interstate Commerce Commission
v.
Black Ball Freight Service),
Brennan had had a majority when the decision was assigned to him, and then lost it to Douglas, who had a different view. Brennan was not accustomed to having a majority stolen out from under him. "I'm not going to lose another one," he told a clerk, and he grimly instructed him to revise part of the opinion so that the result came out the opposite way. Douglas, Marshall and White soon joined Brennan's new opinion.
Burger, however, had no intention of changing his vote. The right to counsel at the preliminary hearings was something for legislatures to enact, not the Supreme Court. He dashed off a blistering dissent excoriating the new majority. It was an "odd business" that it took the Court "nearly two centuries to 'discover' a constitutional mandate to have counsel at a preliminary hearing."
Douglas read Burger's opinion and decided to respond with a separate opinion. He didn't know whether Burger would retract his dissent or tone it down and issue it as a concurrence. He had already done both several times that term. "I add a word as to why I think that a strict construction of the Constitution requires the result reached," Douglas wrote in a lecturing tone. "It did not take nearly
200
years of doubt to decide" the matter. "The question has never been reached prior to this case. We experience [on the Court] the case-by-case approach that is the only one available under our 'case' or 'controversy' jurisdiction under Article III of the Constitution." He was reminding the Chief that the Court could not reach out to decide issues that were not presented as live controversies.
When Burger did not withdraw his dissent, Douglas went ahead and published his rebuke.
As the author for the majority, Brennan wound up with six votes for the revised part of his opinion. Black, Marshall, Douglas and White and Brennan himself had switched to Harlan's view.
Potter Stewart's initial optimism about the new regime had also faded. One of his clerks, a committed liberal, had observed Burger in action at the District of Columbia Court of Appeals the previous year. He had sent early and repeated warnings to Stewart, characterizing Burger as petty, unpleasant and dishonest.
Stewart didn't want to jump to conclusions. He just laughed nervously as his clerks told new and old Burger tales, which always painted the Chief in the worst possible light. But as the term progressed and Stewart compared notes with the other Justices, particularly with his friend Harlan, his reservations about Burger turned to acute distress.
It occurred to Stewart that Burger was much like Earl Warren, inclined to shoot from the hip, or to view cases in purely political terms. In some respects, Burger was worse. At times the Chief changed his ground in a case three or four times. Legal arguments couldn't reach him. Often it seemed that all Burger cared about was upholding criminal convictions. He would go out of his way—bend the law, overlook earlier Court decisions—to hold a majority to keep someone in jail. But, unless the Chief could get at least one other Justice to go along with his hard-line views, he invariably moved toward the center, joining the most conservative position available. Stewart's clerks, and a number of others, worked out a theory of Burger's jurisprudence. The Chief would never be alone in dissent. "Always to the right but never alone," the slogan went.
Stewart was especially demoralized by the Chief's responses to a series of routine petitions that had come to the Court. Prisoners who made a claim in a federal district court that their rights had been violated in a state prosecution were, at times erroneously, denied hearings by the district court. Almost always, the intermediate court of appeals would order the district court to hold a hearing; then the state would petition directly to the Supreme Court for review of the appeals court's demand. The Supreme Court routinely denied such petitions because its prior decisions demanded the district court hearings. But Burger wanted to simply ignore previous Supreme Court decisions that provided for the prisoner's right to make such appeals, and reverse the intermediate courts without even holding oral argument.
Stewart considered Burger's position bizarre. With no knowledge of the facts in the cases before the Court, it was absurd to reverse the appeals courts. Though the Chief lobbied heavily on these cases during the term, he never got another Justice to go along with him.
Another criminal case considered early in the term involved a double jeopardy claim of a Missouri man, Bob Fred Ashe, who was alleged to have robbed six men at a private poker party
(Ashe
v.
Swenson).
Ashe was put on trial for robbing one of the six players and found not guilty. The prosecutors reworked their case, focusing on the witnesses that had been helpful to the prosecution and ignoring those whose testimony was not. Some witnesses' memories improved. The state then tried Ashe for robbing another of the players. This time he was convicted. Cert had been granted the year before to clarify a decision of the previous year
(Benton
v.
Maryland)
that said the states had to adhere to the Fifth Amendment's protection against double jeopardy, the doctrine that a person cannot be tried twice for the same offense.
The tentative vote in conference was
5
to
3
to free Ashe, though the majority couldn't agree on a single theory. The Chief was a dissenter. Black, as the senior Justice for the majority, assigned Stewart to write the opinion. Gradually all the Justices but Burger agreed to join Stewart. Ashe would be freed. There were separate concurrences by Black, Harlan and Brennan. Stewart's opinion banned retrials in many circumstances. Brennan, joined by Douglas and Marshall, agreed with Stewart but wanted to go further and ban separate trials for each crime committed in a single criminal episode like the poker-game robbery.
Burger was furious. In the first place, he believed that, given the record in Ashe's two trials, the Court was going to impose a rule on the states that would free a guilty man. The Court, in Burger's view, should refrain from making more rules that limited a prosecutor's opportunities to bring criminals to justice. The robberies of the individual poker players were separate crimes; Ashe should be accountable for each. The Fifth Amendment stated that double jeopardy applied to the "same offense." Here there were six offenses. The majority's view, Burger reasoned, invited a criminal to commit multiple offenses, since there would be no accountability after the first one.
This time, Burger decided, he would dissent even if he stood alone. He would write an opinion that spelled out in his most dramatic prose the nature and meaning of the majority's position. The
1966
Chicago slaying of eight nurses by Richard Speck, one of the most notorious crimes of the decade, provided an interesting parallel. With that example, perhaps the other Justices and the public would understand the implications of providing criminals such a loophole. The Chief wrote that if the poker robbery was to be viewed hypothetically as akin to a man breaking into a woman's dormitory, as Speck had done, raping and killing eight women, the crimes beyond the first one were effectively "free." In effect, the Court would be encouraging mass murder.
Reading the Chief's draft, his law clerk assigned to the case thought it inflammatory to equate the poker-game robbery with the Speck murders. The draft would reflect poorly on the Chief and the Court; he removed the comparison. When Burger received the redraft, he severely reprimanded his clerk and reinserted the Speck comparison. The clerk tried once more, again without success. The dissent was then circulated.
White was amused by the Chief's choice of metaphors. If other members of the Court wanted to be inelegant, White was perfectly willing to let them. He cared only about the case's effect on precedent and about his own opinion. In the margin of his copy of Burger's draft, next to the reference to the man who had raped eight women, White wrote, "Some man!"