Looking McMillan up in
Who's Who,
Stewart found that he and McMillan were almost the same age. McMillan had gone to Harvard Law School, while Stewart attended Yale, and both had served in the Navy during World War II. McMillan was a member of the United World Federalists, a group of idealists working for world government. It seemed to Stewart that McMillan represented a courageous strain of Southern liberalism. McMillan reportedly had received death threats because of his decision, and he had been placed under police protection. But he seemed willing to have crosses burned on his lawn.
"The issue is one of Constitutional law, not politics," he had said. "A judge would ordinarily like to decide cases to suit his neighbors
...
To yield to public clamor, however, is to corrupt the judicial process."
"I've got to admire his courage," Stewart told his clerks. "Some people do cause a lot of trouble. It would be nice if it hadn't happened."
From Stewart's point of view, McMillan had put the Court on the spot. Two decades before, it would have been easier for the Court to back McMillan up. Then, Northern Democrats and Northern Republicans had given bipartisan support to the Court's desegregation orders. Although President Eisenhower had never enforced the orders with any enthusiasm, at least he had not campaigned against them as Nixon had done.
To Stewart, the evaporation of bipartisan support suggested that more than the usual amount of restraint and caution was needed. And above all, the Court's tradition of unanimity in these cases had to be maintained. That was clearly not going to be easy. McMillan's courage created a difficult impasse for the Court. The conference had only reconfirmed the enormous gulf between the extremes. The Chief seemed closely aligned with Black's antibusing stance. Stewart felt that it was highly unlikely that Burger could write an opinion that would shelter everyone under one umbrella.
Stewart saw himself in the center. And it was the center of the Court that would have to prevent the collapse of unanimity. "I don't know what the Chief is doing about this case," Stewart told one of his clerks. "Maybe we ought to have something ready." Stewart told the clerk to research the subject and pull together a memorandum drafted as an opinion. He added some directives: McMillan was about right on the justification for racial balance; racial balance was a goal against which progress in desegregation could be measured; busing and redrawing school-attendance zones were remedies within the powers of the federal courts to order; they should be catalogued and approved, though no one remedy should be glorified.
Yet, McMillan had gone too far on one matter. Stewart could support busing for junior and senior high schools; but when it came to busing elementary-school pupils, he felt that McMillan had gone too far. "They're busing babies, mere babies, mere four-year-olds," Stewart said. "I would not want a four-year-old of mine to go off on a bus for forty-five minutes."
Stewart thought the Fourth Circuit was right on this point. It had agreed with McMillan on the busing of older students, but not the younger ones. The clerk was to prepare a draft memorandum that, on this point, would reverse McMillan and uphold the Fourth Circuit.
There were other tightropes to walk in preparing the draft. Stewart felt that there should be strong language in the opinion welcoming aggressive, innovative approaches to school desegregation. The tone should be positive, to encourage the few lower court judges willing to take this kind of initiative.
But, Stewart cautioned, the sense of the conference was certainly not to go so far as to require the elimination of all one-race schools—something McMillan's opinions had implied was necessary. There were situations in which one-race schools would have to be allowed.
Overall, the draft memorandum should be written as both a legal and a political document. The media would interpret it on a superficial level. Who had won and who had lost? Had the Court reaffirmed its commitment to desegregation? Had the Nixon administration forced the Court to back down? The language had to be chosen carefully. But the tone had to be supportive of McMillan's innovative approach. The federal district and appeals court judges were the real audience.
Stewart's clerk began his research.
On December
8, 1970,
Burger's double-spaced typewritten draft was hand-delivered to each chamber. Stewart read it carefully. It was an appalling effort. The tone was entirely negative, criticizing McMillan, and not approving even the part of his order dealing with the junior and senior high-school students.
After recounting the
Brown
decisions and noting the difficulty in implementing the desegregation of Southern schools, Part III of the Chiefs draft said, ". . . some of the problems we now face [may] arise from viewing
Brown I
as imposing a requirement for racial balance,
i.e.,
integration, rather than a prohibition against segregation."
Stewart saw this as potentially disastrous—certain to draw the wrath of Douglas, Brennan and Marshall.
"The ultimate remedy commanded by [the desegregation cases from
1955
to
1969]
was to discontinue the dual system," the draft continued. The Chief was saying that federal judges could only restore the situation to what it would have been had there never been separate school systems for whites and blacks. This, Stewart knew, would provoke at least half of his colleagues, who wanted the decision to also correct for residential segregation.
Stewart was puzzled. Traditionally, the courts had power to correct violations of constitutional rights. Judges could do whatever was necessary to correct the situation once a violation was proved. Burger wanted to limit judges to the minimum necessary to correct a violation, whereas the consensus of the conference was to have judges do anything that was effective in correcting a violation. Effectiveness should be the measure of a remedy, Stewart felt Lower court judges should not be second-guessed unless they grossly abused their discretion.
Burger's draft then turned to the four main issues presented in the case—racial balancing; elimination of one-race schools; altering school-attendance zones; and busing. These sections were written with one purpose, Stewart concluded. Burger wanted to show that federal court desegregation remedies could not take residential segregation into account. The objective "does not and cannot embrace" the residential segregation, Burger had written. For Burger, all the rest followed. Thus, trying to achieve "racial balance" in each school was not necessary, because imbalance often resulted from residential segregation beyond the courts' power to correct. The conference had been closely divided on this question already. Stewart agreed with the Chief, although he found the draft overstated and severe. Stewart would much prefer to duck this issue for the time being.
Turning to Burger's section on whether the courts could redraw school-attendance zones, Stewart found an incredible phrase dropped in the middle: "Absent a history of a dual school system," the courts could do nothing, the Chief said. That statement would have little effect in the South, where dual systems had existed in most locations, but it would drastically limit Northern desegregation orders.
The remainder of the draft seemed more reasonable to Stewart. It said that busing and alteration of school zones were certainly proper in some instances, but the age of children could be taken into consideration. The Fourth Circuit had properly brought McMillan to task for not considering the age of the elementary-school children. The liberals would not like that, but Stewart would support it.
Burger's draft neither reversed nor affirmed McMillan, but simply sent the case back to him for "reconsideration" in accordance with the opinion. What bothered Stewart was the tone of even those sections that endorsed McMillan. Burger said McMillan's teachnique was "not an impermissible tool." The double negative was a needless jab. The Chief also praised the "valiant efforts" of the school boards, a seeming endorsement of their obstruction.
Stewart concluded that Burger had given a begrudging yes to very limited busing, but that he had undercut the thrust of the McMillan order. If published, the opinion would almost certainly encourage segregationists to use the federal courts to try to cut back on desegregation orders already in effect in the South. It would also preclude efforts to use the federal courts to desegregate Northern schools. 'This will represent a complete retreat," he told his clerk. "It's disorganized and stupid."
Stewart asked his clerk to finish his research memo as quickly as possible. "I want a lot of emphasis on the remedial power of the trial court," Stewart said.
Within a week, Stewart had edited and partly restructured his clerk's memo. He sent it to the printer with the simple heading "Mr. Justice Stewart." He did not want it to be anything more than a memo. Anything suggesting that it was a separate opinion, an alternative draft, or even a dissent, would be threatening to the Chief. "I don't know whether we should circulate this now," Stewart told his clerk after the draft came back from the printer. But a few days later, Stewart told his clerk to take copies to the five other Justices who he hoped would be sympathetic—Douglas, Brennan, White, Harlan and Marshall.
Brennan did not like the Burger draft. The Chief had insulted the intelligence of the conference, Brennan felt.
He was trying to frustrate the will of the majority. Brennan was not entirely pleased with Stewart's memo, but he much preferred it as a basis for discussion. He encouraged Stewart to circulate it to the full Court That way, the Chief would at least have the benefit of seeing it.
Stewart was reluctant, however, to confront Burger with what would obviously be perceived as an alternative draft "I got shitty opinion assignments from
Earl Warren for ten
years, and I'll be damned if I want to get them from Warren Burger for the next fifteen years," Stewart declared.
Brennan again urged Stewart to circulate his effort
.
Privately he considered Stewart far too timid, almost cowardly, for his reluctance to stand up to the Chief.
Douglas, Marshall and White also urged Stewart to circulate. Each had objections, but each felt that, as a basis for negotiation, Stewart's draft was certainly more palatable than Burger's.
Stewart realized that with the votes of the four Justices who were urging him to circulate, he had the makings of a majority. He decided to send the memo to the others, and he prepared a carefully worded cover letter indicating that the circulation was just a research memo, really nothing more than some thoughts and background prepared by his law clerk.
"They think your draft is good," Stewart told his clerk. "But don't get your hopes up."
Burger's reaction to Stewart's memo and cover letter seemed positive. The Chief told Stewart that he would use the memo as the basis for yet another draft, and he quickly set his senior and most trusted law clerk back to work.
The Chief finally circulated his second draft It was, on the whole, a major disappointment to Stewart. Despite Burger's assurances, he had incorporated little of the material in Stewart's memo. The draft was still overwhelmingly negative in tone. "We may have to dissent," Stewart told his clerk. "Your thing may be published yet"
Harlan watched the maneuvering on the cases from a dignified distance. He had assigned a law clerk to prepare a detailed research memorandum on the pertinent law, and he felt that the issue came down to whether federal judges enjoyed a sufficiently broad power to order such remedies as busing for constitutional violations. His research indicated that they had the power to set forth any remedy they deemed necessary.
Harlan had his clerk's massive research memorandum printed and presented it as a set of suggestions for revisions to Burger's draft opinion. His cover memo, restrained in tone, said the Chiefs draft would be acceptable, provided that Burger made a few changes. The changes, however, amounted to deleting almost all of the Chiefs draft and substituting the far longer Harlan memorandum.
Blackmun had also maintained a deliberately low profile. These were the first cases argued since his arrival on the Court. Blackmun took great pride in his progressive views on racial matters. He had, after all, authored some of the opinions of the Eighth Circuit Court of Appeals in the Little Rock desegregation cases. But he worried that McMillan's order would destroy the role played by neighborhood schools in formulating community values.
Still, Blackmun thought that the basic question was the power of judges in the lower federal courts to deal with these situations. Harlan's research had settled this, as far as Blackmun was concerned. Blackmun preferred Stewart's draft, but he was not about to disagree openly with the Chief. If only Burger would alter his own draft to remove any ambiguity about the power of lower federal courts to order busing.
Burger, however, wouldn't move. Black was not willing to budge on his opposition to busing, Burger insisted. The others would have to compromise in order to reach some consensus.
At this point, Douglas, Brennan, Marshall and White took stock. They could not live with the Chief's draft. They preferred, in varying degrees, different solutions. The Stewart draft also fell short of their aspirations, but provided them with some leverage on Burger.