* It was an area the Chief indicated he would like settled as soon as the Court was at full strength. The Fortas seat had not yet been filled at the time, and Marshall was hospitalized.
Shortly after Nixon's statement, the Fourth Circuit Court of Appeals cut back substantially on the McMillan order, ruling out McMillan's extensive busing of elementary-school children. Calling for "reasonableness," without defining it, the majority opinion said that all-black schools need not be totally eliminated if there was "an intractable remnant of segregation" in a large black neighborhood. McMillan's extensive busing had created too great a burden on the community. He had tried too hard to reach his goal of a nearly perfect racial balance in each school, the court implied. It remanded—sent back—the case to him for further hearings.
Before McMillan had an opportunity to hold his new hearings, some black parents appealed the case to the Supreme Court
(Swann
v.
Charlotte-Mecklenburg Board of Education).
They wanted a quick ruling to the effect that every school must be desegregated. Only Black, Douglas and Marshall had been prepared to postpone the end of the previous term in order to hear the case. The others agreed to hear it in October
1970.
And the Court reinstated McMillan's busing of elementary-school children until it would have a chance to rule. Therefore, McMillan's massive busing plan would go into effect when the schools opened in September.
In the meantime, McMillan, encouraged both by the Fourth Circuit's ratification of some of his basic approach and by the Supreme Court's willingness to hear the case, went ahead and held his further hearings. And, once more, he ordered extensive busing of elementary-school children.
Southern politicians stumped the South chastising the Court for taking off the summer without deciding this crucial case before the school term began. Some of them suggested that the Justices were not earning their
$60,000-
a-year salaries.
On Monday, August
31,
Burger took the unusual step of summoning the AP and UPI reporters who covered the Court to his chambers. The Supreme Court, he told them in a forty-five-minute background briefing, had decided not to have a summer session, because it wanted to hear several busing cases and consider the full range of issues. But, Burger said, he had placed the Charlotte case and two other pending appeals
{Davis
v.
Board of School Commissioners of Mobile County
and
McDaniel v. Barresi, Clarke County, Georgia)
at the head of the docket to be argued first in the new term. Burger also suggested to the reporters that the cases under review would likely produce a landmark decision. These cases, it now appeared, would be the most significant since the
Brown
decision. While all the cases involved Southern school districts, the Supreme Court's decision would likely affect every major school district in the country, North as well as South, Burger said. -
The Chief knew that his ability to hold the Court together on the sensitive busing issues would be a crucial test of his leadership. Unanimity in key school desegregation cases was a tradition. But Burger had trouble seeing how unanimity could be achieved. As the term began, however, Burger found that he had an unexpected ally—Hugo Black, the previous term's militant proponent of desegregation "now." Black accepted busing in rural areas; most children were bused all their lives to one school or another. But, for all his hatred of segregation, Black viewed the urban neighborhood school as a foundation of community life. He was opposed to massive busing to achieve racial balance and wanted
limi
ts
placed on the power of federal judges to order it.
"Where does the word
busing
appear in the Constitution?" Black asked his clerks. His approach struck them as almost a parody of his legendary literal-mindedness.
Desegregation, Black argued, meant children should go to the nearest available school. It did not require that they be bused beyond a neighborhood school, in order to meet some precise racial-balance formula. Massive urban busing was an attempt to "rearrange the whole country," he said. He was also sure that black parents, like white parents, did not want their children to spend unnecessary hours on a bus. He asked his messenger, Spencer Campbell, a black man who had been with
him
for over thirty years, what he thought of busing.
Spencer said he agreed with the Justice.
Black related the results of his private poll to his clerks. "Spencer doesn't like busing," he told them. End of discussion.
Black's clerks were convinced their boss was being unrealistic. The Court could not order immediate desegregation without adopting substantial busing, they argued. But as soon as they thought they had made some headway, Black had yet another counterargument. The power to tax was reserved for Congress. Therefore the Court could not require school districts to buy additional buses.
His clerks argued that many of the Court's decisions, including several written by Black himself, had required local governments to spend money.
Black's rebuttal was straightforward. He would allow limited busing to desegregate most schools, but he felt busing for racial balance was unnecessary.
Burger would stop by Black's chambers planning to lobby Black on the busing cases. But, for all of Black's famous "liberal" leanings, Burger found that Black had deep-seated conservative instincts. Each time, it was Black who ended up lobbying Burger.
It was clear that Burger could count on Black's vote. Burger was also confident of the position of his newest ally, Blackmun. The remainder of the Court, however, was another matter. At the opposite pole was Douglas.
For Douglas, the essence of the
Brown
cases was not that they ended segregation. He viewed the Warren Court rulings as an attack on the
stigma
—the stamp of inferiority —that segregated schools left on minorities. The only way to end that stigma, in Douglas's view, was through "integration." This was not likely to be achieved, however, with
neighbourhood
schools. All-black
neighbourhoods
would have all-black schools. And neighborhoods were not all-black because of random, natural development, Douglas felt. Some kind of discriminatory government action was behind most racial segregation, including that of
neighbourhoods
. Douglas liked the sweeping way in which McMillan had gotten to the heart of the problem in his
Charlotte
decision.
McMillan had said that racial restrictions in deeds of land and actions by local and state agencies, such as zoning boards, urban-renewal agencies, public-housing authorities, and school boards had all contributed heavily to residential segregation. "There is so much state action embedded in and shaping these events that the resulting segregation is not innocent," he wrote.
Douglas subscribed to McMillan's basic premise that any school which could be labeled as predominately
"white" or "black" must be integrated. More than anything else, he wanted to endorse this approach by McMillan. It was a reasonable effort to correct a clear constitutional violation.*
The other Justices were on a spectrum between Black and Douglas. Marshall would probably stand with Douglas if he felt that they could get a majority. Brennan was slightly less aggressive, convinced they could never get all Douglas wanted.
It was a question of what White, Stewart and Harlan would do.
At oral argument in the Charlotte case on October
12
and
13,
Solicitor General Griswold argued for minimal busing, no quotas in individual schools, maximum use of neighborhood schools, and retention of some one-race schools. He strongly opposed strict racial balancing or any efforts by federal courts to correct for residential segregation. Judge McMillan had gone too far, he said. The Constitution did not require such extensive steps. School segregation should end, but children should be allowed to go to the school in their neighborhood—whether it was black, white, or perfectly integrated.
James M. Nabrit III, the Inc. Fund attorney representing the black parents and their children, knew he had to convince the Court that busing students to achieve full desegregation was feasible, not some crazy radical idea. Busing was already a part of most school systems, including Charlotte's. The new busing, an increase of less than
50
percent, was neither expensive nor disruptive.
The second
Brown
decision, Nabrit argued, specifically entrusted the lower courts with designing appropriate desegregation remedies to meet different situations. McMillan could be affirmed, Nabrit said, "on the ground that he did not abuse his discretion in ordering a plan which remedied the wrong he found."
At the Friday conference Burger anticipated that there would be substantial disagreement among the Justices, so
* Douglas knew the McMillan opinion would put a nearly impossible burden on the school boards. They would have to prove that they were not responsible for the existing segregation. And unless the school board proved that, federal judges had unrestrained freedom to choose a broad remedy.
he suggested some preliminary ground rules. To encourage candor on such a sensitive subject, he proposed that the Justices adopt an extra measure of confidentiality, and not brief their clerks on the conference discussion. The Chief said that they should circulate only a single typewritten copy of drafts, instead of providing each Justice with the usual printed copies. This would be quicker and more secure. Burger then proposed that the Justices follow precedent set by Warren during the
Brown
cases, and put off taking even a preliminary vote for the time being. The Chief was anxious to keep the positions of the Justices fluid to avoid having Douglas and Black harden in their views. No matter what the Court finally decided on these cases, Burger wanted, above all, a unanimous opinion.
After each Justice had been given a chance to present his analysis of the cases, Burger quickly seized the initiative. It was obvious, he said, that there was no five-Justice majority for any one approach. Therefore, he would try to draft an opinion reconciling the different views.
Douglas was more than a little put out by the Chiefs move. He had marked his own vote book based on each Justice's remarks. There seemed to be a 5-to-4 majority generally favoring McMillan's order. An even larger
7
-to
-2
majority endorsed the broad remedial powers of federal judges. The five solid votes were Douglas, Brennan, Marshall, Harlan and White.
In Douglas's view, Burger was in a minority of two with Black. As the senior Justice in the true majority, Douglas felt entitled to assign the opinion. Because of the confused conference discussion, however, he would just have to wait and see what the Chief wrote.
As he walked back to his chambers, Burger knew exactly what he wanted. If the opinion was to be unanimous, the important thing would be the wording. It would have to be a reasonable decision, with a little something for everyone —for the school boards, for the Nixon administration, for the Inc. Fund, for the Fourth Circuit, even for Judge McMillan.
Burger quickly briefed his head clerk and set him to work on the draft. The Chief did not have sufficient time to write it himself, but he would stay more closely in touch than usual.
* *
Stewart, meanwhile, once again read the series of opinions that Judge McMillan had written. He was becoming fascinated by this lower court judge. McMillan's final opinion, written in August, after the case had been remanded to him for additional hearings, struck Stewart as among the boldest and best lower court decisions he had ever read.
Over the summer, McMillan had conducted eight days of fact finding. Even in the face of the Fourth Circuit's criticism, he rather daringly had reinstated his original order, demonstrating its reasonableness:
In reinstating his original order, McMillan had criticized the Fourth Circuit's vague directive that he be more "reasonable." He was reinstating the order because "it does the complete job." Stewart admired McMillan's candor and the clever manner in which he had tied the order back to the facts. Since appellate courts were usually supposed to rule only on law and not on facts, except where the factual assessment was clearly erroneous, McMillan's opinion would be hard to reverse.