The Chief was in a good mood. His first term was about to end, and there had been no major blowup. He himself couldn't have picked a better person to fill Fortas's seat.
Burger had paid attention to his administrative and housekeeping chores. He had tried to add life and warmth to the building and to his relations with the other Justices whenever possible. He had brought geraniums from his home to be planted in the courtyards. He made a personal gift of silver goblets to his fellow Justices to be used on the bench instead of the ordinary drinking glasses. The lunch hour had been extended from thirty minutes to an hour so the Justices would have more time to converse in their private dining room. (Douglas usually ate alone in his chambers and found the extended lunch period ludicrous. Black thought the additional half hour wasteful; he told Burger they might all begin to overeat.)
The Chief tried to remember each Justice's birthday or anniversary of service on the Court. On May
19,
he sent out a memo:
Dear Brethren:
Tomorrow, Wednesday, is John Harlan's birthday. If there are a sufficient number at luncheon we will break out a bottle of chilled German grape juice to take note of the occasion. Please let us know if you will be available. Would
12:30
be convenient for all?
Brennan, fiercely optimistic, had initially adopted a softer line on the new Chief than Douglas had. For years, at their regular weekly lunch, Bazelon had told Brennan tales of Burger's churlishness, but Brennan preferred to accept any plausible explanation for the Chief's actions. On substantive matters, Brennan characterized Burger as "ideologically reactionary but not evil." But his disappointment with the new Chiefs style in running conferences had begun to increase. The fun and fascination Brennan had felt as the playmaker on the Warren Court was gone now. He was growing skeptical of the new Chief and about his own future role on the Court. By the end of the term, he was talking openly of resigning.
The other Justices also began to resent Burger's style.
In preparation for Blackmun's swearing-in ceremony on June
9,
the Chief sent a memo saying that Blackmun would be "traveling light" and would wear only a dark business suit. Burger said he himself would "go a bit more formal but without 'cutaway.' Members are free, of course, to follow any course they desire."
Black was irritated about having someone even remind him that he could wear what clothes he wanted. Burger was much too concerned with appearances. He scrawled a note, "I shall go to the Court dressed as usual."
At the swearing-in ceremony, Blackmun took his place at the far-left side of the bench, the seat reserved for the junior member. The seat had, in the past, been occupied by Oliver Wendell Holmes, Benjamin N. Cardozo, and Felix Frankfurter. Blackmun pulled out the drawer in the bench by his seat and started examining the contents. He found a copy of the Constitution stamped "O.W. Holmes," and apparently signed by Frankfurter. Suddenly White's loud whisper came from his right. "Harry! Harry, where's your spittoon?" Blackmun looked around as White snapped his fingers to one of the two pages that sat behind the bench to run errands for the Justices. "Get the Justice his spittoon," he ordered. The traditional spittoon, used as a wastebasket, appeared. Blackmun glanced down the bench. Without looking up from his papers, Douglas flipped an empty cough-drop box behind him. It had barely hit the floor before a page picked it up. Moments later, the page handed Douglas a fresh box.*
Blackmun had arrived at the busiest time of the year, the "June crunch," when the undecided votes in dozens of cases were finally cast and the results announced. These cases were often the most important and difficult to decide, the Justices having wrangled over them much of the term. By tradition and informal agreement, the Court tried to take final action on each of the argued cases before the end of the term. A decision might be issued. A case might be
dismissed as improvidently granted
—meaning that a majority had decided, at times even after oral argument, and often for technical reasons, not to decide the case. Or a case might be put over for re
-
argument the next term. This year there were sixteen cases put over for re
-
argument, an unusually high number.
Blackmun sat quietly at the last conferences. He had not participated in the hearings, so he could not vote. No one said anything about it to him directly, but he soon realized that they were putting over most of the cases because the vote was deadlocked
4
to
4.
His vote would decide most of them.
At a special conference on Thursday, June
25,
Blackmun watched as Black and Harlan squared off on two cases. The cases
(Sanks
v.
Georgia
and
Boddie
v.
Con
necticut)
involved the constitutionality of state laws requiring that everyone, including the poor, pay a small court fee to fight a housing-eviction notice or to obtain a divorce. Harlan thought the fees, small as they were, violated the guarantee of due process, a guarantee that amounted to the right to have a fair hearing. The fees made it virtually
* See National Geographic Society,
Equal Justice Under the Law: The Supreme Court in American Life,
rev. ed., p.
127
.
impossible for the poor to get their day in court. Harlan had been assigned the cases, and he had the formal votes for his opinions. He wanted the cases to come down on Monday.
Black said he wanted more time. He had circulated his dissent in draft form only that morning. The cases were an outrage, he indicated. The Court had no license to make such a broad application of due-process guarantees. Nothing in the Constitution granted equal access to the courts in civil cases, such as divorce or eviction hearings. The Constitution granted that access only in criminal cases. The Court's intent to hand down the decisions would be
a
revival of the notion of "substantive due process"—a generalized notion of fairness as defined by the Justices. This doctrine had been used, much to Black's dismay, to protect corporations from government regulations. "The Court doesn't enjoy a roving jurisdiction to do good," Black often told his clerks. It was not a matter of whether a law was unfair or fair, as long as it applied to everyone equally. As long as everyone had to live with it, the legislature that made the law would have to be accountable, not the Court.
Harlan was adamant. He would respond to Black by revising two footnotes. He would not rewrite the whole thing, nor would he agree to put the cases over. The Court had already put over a large number of cases and there was no reason to add this one to the list. He wanted his opinions to come down.
Black played his last chip. By tradition, a single Justice, even a dissenter, could insist that an opinion not come down until he had finished his own opinion. This was the conference's equivalent of senatorial courtesy. Black said he needed more time for his dissent in the eviction case. He really wanted the time to lobby some of the other Justices.
Harlan knew what Black was up to. He had seen this many times before.
Blackmun sat wide-eyed as the two went back and forth. Harlan seemed truly irked. If the eviction case were held over, then, Harlan pointed out, they might as well also put over the divorce-case opinion, since it relied heavily on the reasoning used in the eviction case.
A majority also wanted the opinions to come down. They urged Harlan to see if he could make the revisions by the next day's special conference. Harlan grudgingly consented. In spite of the sometimes heated argument, Harlan and Black walked out arm and arm, gently arguing as they headed down the hall to their chambers.
Harlan called in his clerks and told them what they were going to do: they would take the legal reasoning used in the eviction case and put it into the divorce case. They worked nearly all night cutting and pasting, and at conference the next day, Harlan presented his revisions.
Black wasn't satisfied with Harlan's massive effort of the previous night. "I don't want them to come down," Black said. Such a major opinion would have implications for many other cases.
Burger stepped in. He, too, wouldn't mind a little more time to go over both cases.
That did it.
Harlan was furious; Black had won again. He was still put out after conference as he prepared to go to dinner at Black's house. But by evening, all was forgiven.
Blackmun was dumbfounded. All over the country there were people who couldn't get into court on civil cases because they couldn't pay the fees. A majority of the Supreme Court had resolved the problem. But a single Justice had the power to force them all to wait. And now he was a Justice and had that same power.
1970 Term
A
s
his second term approached
, Burger worried increasingly about how his tenure would measure up against Earl Warren's. In Warren's first term, the Court had handed down the
Brown
school desegregation ruling. Over the next sixteen years, his monumental reputation for leadership and integrity had rested in large part on the continuing chain of school desegregation cases.
Burger's first term had not provided any such opportunity, but now Burger saw a wave of cases rising through the lower courts that presented the potential for a landmark decision. The Court's
per curiam
decision the term before in the Mississippi desegregation case
(Alexander
v.
Holmes County)
had made it clear the Court meant that desegregation was to occur now. The new cases raised the question of how it was to be achieved.
All that summer, the Supreme Court had been under fire over what seemed to be rapidly becoming the country's most volatile domestic political issue—busing. The furor had been growing since the spring of
1970,
when U.S. District Court Judge James B. McMillan ordered each of the public schools of Charlotte, North Carolina, and surrounding Mecklenburg County to desegregate, not piecemeal, but totally. Like many federal judges, McMillan felt that desegregation no longer meant simply putting a single black student, a James Meredith, into an otherwise all-white school, like the University of Mississippi.
Since roughly
71
percent of the school population of the Charlotte area was white and
29
percent black, McMillan felt that a
71—29
white-black pupil ratio for
each
school should be the goal. While conceding that "variations from the norm may be unavoidable," he had radically altered school attendance zones and ordered busing for
13,000
additional students to achieve "racial balance," as it was called, in each school.
Burger felt that what McMillan had ordered amounted to forced racial mixing, an attempt to remedy residential segregation. This went far beyond the intent of the
Brown
cases, which ordered
desegregation
—the end of separate schools for blacks and whites. That was a proper task for the Court, Burger thought, and he supported it. But this was an order for
integration.
"Desegregation" and "integration" are often used interchangeably, but they are very different matters, Burger told his clerks. "Integration" implied more—racial mixing, strict racial balance. Desirable as this might be in a perfect society, it had no legal foundation as an appropriate ruling by the Court.
Five weeks after the McMillan order, Burger published a concurrence to an opinion in another desegregation case
(Northcross
v.
Memphis Board of Education).
Though he did not mention McMillan's Charlotte opinion, Burger suggested that it was now time for the Court to determine how far lower court judges could go in ordering desegregation in general and busing in particular. He posed several key questions.*
Two weeks later, the President issued an extraordinary eight-thousand-word policy statement on desegregation. Though he did not address the Charlotte situation specifically, the President told how he himself would answer Burger's questions. Although he had supported the Warren Court's
Brown
decisions, Nixon found the situation far different now. The reason some black children were still going to all-black schools, he said, was that they lived in all-black neighborhoods. Children should attend their neighborhood schools, the President argued. These lower court decisions, ordering busing to equalize racial proportions in each school, went far beyond what the
Brown
decisions required. "Unless affirmed by the Supreme Court, I will not consider them as precedents to guide administration policy elsewhere," Nixon declared. He was shifting the onus of public hostility from his administration to the federal court system. A challenge had been issued.