* See William Satire:
Before the Fall: An Inside View
of
the Pre-Watergate White House.
something that might damage Republican chances in the upcoming November congressional elections unless it was absolutely essential for national security.
"Speaking in the greatest confidence, Mr. Chief Justice," Nixon replied, "I am realistic enough to know that if this operation doesn't succeed—or if anything else happens that forces my public support below a point where I feel I can't be reelected—I would like you to be ready to be in the running for the nomination in
1972."*
In response to press inquiries, the White House issued a statement the next day saying that Chief Justice Burger had come to congratulate the President on his Cambodian action. Burger had the Supreme Court press officer issue a statement saying he had called at the White House on "judicial business."
Blac
k was huddled comfortably over h
is law books one day in the late fall when an old friend came through his doorway. "Tommy," Black called out, greeting Thomas G. "Tommy the Cork"
Corcoran, a Roosevelt brain-tru
ster from the old days, now a lawyer in private practice in Washington. Corcoran and Black had been friends since the
193
os, when both were zealous advocates of the New Deal. Black had introduced much of Corcoran's trust-busting legislation in the Senate and guided it through.
Now sixty-nine, Corcoran had gone over to the other side as far as Black was concerned. The charming Irish salesmanship had been fine when Corcoran was fighting the special interests. Now he represented them. His law practice was known for influence work, lobbying and backstairs deals.
Corcoran sat down in Black's office. Black had no idea why he was there. But they shared a family interest in Corcoran's twenty-eight-year-old daughter, Margaret. A Radcliffe College and Harvard Law School graduate, Margaret Corcoran had clerked for Black three years before, and was a member of Black's "family" of former law clerks. Recently she had been suffering from a series of personal problems, which Black presumed had occasioned Corcoran's visit.
* See
RN: The Memoirs
of
Richard Nixon,
p.
452.
The Court had done a great injustice, Corcoran told Black. Its ruling the previous term in an antitrust case against El Paso Natural Gas Company, the world's largest gas pipeline company, threatened the survival of the corporation
(Utah Public Service Commission v. El Paso Natural Gas Co.).
Black was shocked. No one came to the Supreme Court to lobby, even to "put in a good word" for a petitioner. The mere mention of a pending case at a cocktail party was forbidden. Out-of-court contacts with Justices about cases were unethical. There was currently before the Court a petition requesting a rehearing of the El Paso case, and Corcoran had come to lobby for the company. Black cut his old friend off quickly.
No.
He shooed Corcoran out of his office.
The El Paso case had been in the federal courts for the past twelve years. It was the most celebrated and the most litigated antitrust case of the decade. It had been to the Supreme Court three times until finally, in the previous term, the company was ordered to divest itself of monopolistic holdings in the West.
The rehearing petition that was pending before the Court was a common, last-ditch, usually futile, effort of the losing side, asking the Court to reconsider what it had just done. Black thought it unlikely that El Paso would win review. The Court, which had just decided it the term before, was not going to reverse itself unless dramatically different circumstances presented themselves. As far as Black knew, there were none.
The previous term's opinion had been a
4
-to
-2
vote, with three Justices not participating. White and Marshall were out because they had been involved in the case while at the Justice Department; and Fortas had resigned before the decision. Black, Douglas, Brennan and Warren had formed the majority. Harlan and Stewart had dissented.*
*
The Court's rules provided strict guidance on rehearing petitions. Rule
58
said th
at the conference could not con
sider
* "Those Republicans will ruin us all," Black once told a
clerk.
**
"John Harlan is one of the smartest, nicest guys who ever
lived;
I love him. But you know, he's a Republican. You know,
that's
Potter's problem too," Black said.
a petition unless it was brought up by one of the Justices from the previous majority. Those who had dissented could not propose a rehearing. The rule was logical, since, ordinarily, there was no reason to reconsider a case unless someone in the original majority had changed his mind, or had found a reason to hear the case again. Otherwise litigation would never end.
Since Warren was gone, the only remaining members of the old four-man majority were Brennan, Black and Douglas. Unless one of them took the initiative and brought up the petition at conference, it would die.
Under a long-standing tradition of the Court, new Justices—in this case the Chief and the eventual replacement for Fortas—would not even vote on rehearing petitions. That could mean that a previous decision would be left standing, even if a clear majority of dissenters and new Justices thought it was wrong. This was essential if the Court was to maintain credibility as its membership changed. The Court must be perceived as a continuing body, whose opinions do not change merely because new Justices join it.
Black could almost forgive Corcoran for his carelessness. Corcoran had been an advocate all his life; he was unable to stop pressing for his clients' interests. But in his thirty-two years on the Court, Black had never had the arm put on him in such an overt way in his own chambers by a lawyer for a private party involved in a dispute before the Court.
Corcoran, however, was not about to give up. His lobbying efforts had been disregarded before in Washington. He was used to taking his knocks. He made an appointment with Brennan.
Brennan had no idea why Corcoran, whom he did not know well, had requested an appointment. He greeted Corcoran warmly. The two Irishmen sat and exchanged a few pleasantries. Corcoran quickly got to the point. Why was the Court determined to ruin El Paso?
Brennan was surprised.
Corcoran said that the deathbed statement of one of the gas pipeline lawyers in the case, John Sonnett, had prompted his visit. Sonnett had said that a grave injustice had been committed by the Court in its sweeping, dictatorial divestiture order against El Paso.
Brennan stood. He said that he, of course, could not and would not ever discuss a pending case, and showed Corcoran to the door. He immediately went to tell his clerks. Something awful just happened, he said. His shock was evident on his face as he described Corcoran's visit. Brennan said he had had no way of knowing beforehand what Corcoran wanted. Corcoran's name had not been on the petition for rehearing or on other briefs and papers. It was outrageous, a lawyer coming to lobby a Justice. The question was what to do now? He probably would have to disqualify himself from participating in the consideration of the rehearing petition. Disqualification is voluntary, a decision left to each individual Justice in situations where his neutrality could be questioned. Even though Corcoran had been unsuccessful and had not influenced him, Brennan suggested that the appearance of the situation might call his impartiality into question.
But, Brennan felt, the Court might have been wrong in the El Paso decision. After all, the states in the West supported El Paso because they were bothered less by monopolies than by the threat of a shortage of natural gas. Perhaps zealous trust busting was not feasible here.
The Chief believed that the
4
-to
-2
El Paso decision of the previous term was one of the classic excesses of the Warren Court. He wanted to grant a rehearing and a reversal. Though tradition seemed to suggest that he not participate, and though Rule
58
might keep the conference from even considering the case, Burger was looking for a way around these obstacles. The El Paso decision involved a procedural twist that, in his view, dramatized the willingness of the Warren Court to bend the rules to meet its goals.
The Chief thought it fantastic and unprecedented that all those involved in the dispute—the El Paso Company, the individual states, and the Justice Department which enforced the antitrust laws—had finally agreed to a compromise, something less than the total divestiture ordered earlier by the Court. All parties involved the term before had asked that the case be dismissed. Rule
60
of the Court said such a request for dismissal by all parties should be granted automatically.
As the Chief saw it, that should have ended the case. It was simple. How could the Court make a ruling when there was no controversy, no complaint, no dispute? But the Warren Court had refused to let the parties dismiss the case.
Incredible as it seemed, the Court had allowed a former California public-utility official to argue as a "consumer spokesman." Traditionlly, an individual had no legal standing to intervene in a government antitrust suit. By law the Justice Department had the job of enforcing the antitrust statutes, and it had decided to let the twelve-year controversy die. That should have been it for the Court. But the Court had set itself up as a sort of review board, saying there had been a dispute, and the Court wanted to resolve it anyway. This was not mere judicial activism, but judicial interventionism—an arbitrary exercise by the Court of its power to do justice when no one had requested it.
The Chief felt Warren had bent the rules in this case. If the rehearing petition were granted and the preceding term's decision were eventually reversed, it would be a body blow to Warren Court activism. It would signal that the Burger Court was going to play by the rules. Overturning the decision would not be merely overruling one case with another (something that happened on the average of once a term); it would be taking the very case itself and saying that the previous Court had been wrong.
The Chief thought the obstacle of Rule
58
could be cleared. The majority of the current members of the Court should prevail, and any Justice should be able to bring up
a
rehearing petition. The tradition that prevented new Justices from voting made little sense. Burger planned to cast his vote despite the tradition. He thought the votes were there for a
4
-to
-3
victory. Harlan and Stewart, who had been vigorous dissenters in the previous term's decision, would no doubt join the Chief and the Fortas replacement, giving them four votes to defeat Brennan, Black and Douglas.
But Douglas had a strong interest in seeing that no rehearing was granted. For him, the issue was also simple, and also of fundamental importance. The Supreme Court was having some trouble getting the lower courts, as well as the Justice Department and big-business interests like El Paso, to obey its rulings. Just as segregationists in the South had in effect ignored the Court's school rulings with tricks and delays, now corporations and utilities were dodging unfavorable rulings with their high-paid country-club lawyers and delaying tactics.
In Douglas's opinion, the Court had to show its willingness to ensure that its decrees were obeyed, and divestiture of El Paso meant just that. The corporate interests were thwarting the Court; the Justices had to stand fast. There was a coalition of energy, environmental and consumer interests involved in this case. According to one press account, El Paso was making one million dollars a day by retaining its monopoly. According to another, it. was spending millions lobbying Congress for legislation to guarantee that it could keep its holdings.
The Court's decision in the preceding term was necessary. Douglas was suspicious about the Justice Department's withdrawal from the case. Nixon and Mitchell had been partners in a New York law firm that had done some legal work for El Paso. Legal fees of
$771,000
had been paid to the Mudge, Rose, Guthrie & Alexander firm during the
1960s.
Soon after the Corcoran visits, the conference took up the El Paso petition. Brennan recounted to the full conference the details of Corcoran's visit, his plea, and his account of the purported deathbed statement of one of the lawyers. The lobbying effort was improper, Brennan said. Nonetheless, he felt that perhaps El Paso did have an argument, that possibly a rehearing should be granted.
Douglas interrupted sharply. That was no deathbed confession, merely a lawyer's distress at having lost a case. How could Brennan even consider it? In the first place, Brennan was wrong in suggesting that El Paso had a legitimate claim. But more important now, Douglas said, it was Corcoran's lobbying that was the issue. If the Court granted a rehearing, Tommy Corcoran would be all over town bragging about how he had stopped by Bill Brennan's office and had twisted his arm—and, in turn, how Bill Brennan had bamboozled the rest of the Court. Did they want their halls filled with influence peddlers?