Douglas, Brennan and Marshall went to Stewart's chambers. Stewart was nervous about the implications of a meeting of five Justices—a potential majority, the very sort of rump caucus Warren used to hold—so White had not been invited. Stewart emphasized that he was unwilling to take the opinion away from the Chief. His goal, he said, was to pull the conference together, not to divide it. He did not want to be a leader, or even a member, of any faction.
The other three Justices tried to reassure Stewart. He alone was in a position to rally their votes and those of White, Harlan and Blackmun. If he was unwilling to make his draft a counter opinion, he must at least take the responsibility of negotiating with the Chief.
Stewart felt pressured. But at the same time, he rationalized that he was pulling the liberal wing along into a more moderate posture, one more likely to result in a true consensus. It was clear to Stewart's clerks that he liked the idea of being the principal negotiator with the Chief.
Back in his chambers, Douglas was worried. Desegregation sentiment in the country had peaked. This time, there was a very real threat of a backlash. The antibusing sentiments salted throughout Burger's draft would appeal not just to segregationists in the South, but to a substantial blue-collar constituency in the urban North. If Burger's opinion surfaced in its present form, it would appear to legitimize Nixon's anti-busing, anti-desegregation polices. The Court would look like an instrument of Nixon's will.
For Douglas, the Court's credibility, its prestige and its independence were at stake. Normally he preferred to publish his views in a separate opinion rather than compromise with his colleagues. But this was too important. Black's desertion, his apparent support for the entire Burger effort, left Douglas unsure where the final Burger draft would come out They key to any meaningful alternative was clearly Stewart. Stewart's memo was not that bad, as far as Douglas was concerned. His approach and his tone swept in the proper direction. But there was one major problem.
Douglas made a decision. He walked over to Stewart's chambers, and knocked on the door that led directly from the hall into Stewart's own office. Stewart was surprised to see him. "I like your memo," Douglas said, "except for one thing—the result."
In Douglas's view, the question of whether elementary-school children should be bused in Charlotte was of far less significance than the symbolism of how the Supreme Court treated Judge McMillan. It was important to endorse McMillan's logic. If it were affirmed, every district court judge would have to go to the McMillan opinion for guidance, instead of merely reading the Supreme Court's opinion. That was what Douglas wanted.
Was it absolutely necessary, Douglas asked Stewart, to reverse McMillan because he had ordered the busing of elementary-school children? Douglas had an alternative. Suppose the order affirmed McMillan—thus upholding the use of racial balance as a criterion for designing a desegregation plan—but went on to point out, in the text of the opinion, the difficulties and considerations in busing young children?
Okay, Stewart said.
Douglas left and Stewart ordered his draft changed— from reverse to affirm.
Marshall was happy to see that Stewart was willing to affirm McMillan. That was vital. But in general, Marshall had some strong reservations about Stewart's version. First of all, it was nearly as conservative as the Chief's. Worse, it was too specific. Too lawyerlike. Too well written. Stewart's draft, Marshall feared, would make all too clear the extent to which the Court was not fully backing up McMillan. Marshall felt that the goal of protecting the extensive desegregation efforts already underway in the South would best be served if the Court affirmed McMillan and accompanied the order with something like the hodgepodge prepared by Burger. Lower court judges would not be able to understand a mushy opinion like that. They would be forced to read McMillan's opinion for guidance to see what it was that the Court was affirming.
As Burger's senior clerk labored in his second-floor office, he began receiving frequent visits from a clerk who worked for Marshall. Marshall had a number of problems with Burger's first version.
Ideally, Marshall would have liked to go as far as possible in this case to maximize desegregation. But he was practical enough to recognize that sweeping changes were not about to be realized in this case. He focused, therefore, on more limited goals.
One problem with Burger's draft was the way it held that a judge should not attempt to correct for residential segregation patterns in designing school desegregation plans. That was precisely the question that judges had to weigh, Marshall felt, if there was to be any meaningful desegregation of big-city school systems, particularly in the North.
So Marshall's clerk began lobbying through Burger's clerk, trying to persuade him to move a discussion of residential segregation that had been buried in Footnote
11
up to the main body of the next draft. Burger at last gave in, though he refused to go along with most of the other changes sought by Marshall.
Stewart continued his negotiation with the Chief. He knew now that his alternative draft implicitly commanded the votes of at least five justices and, with Harlan, six. But the process of trying to bring Burger around was painfully slow. Stewart finally came to the conclusion that the Chief's principal commitment was to his own language. He seemed flexible on where his language and phrases appeared, as long as they were somewhere in the opinion.
So, to diminish the overall negative tone, Stewart began dispersing the Chief's most damaging sentences throughout his draft. A string of sentences in the middle of Burger's original draft, suggesting sympathy with desegregation delays, was softened by the elimination of one sentence, additions from Stewart's draft, and the relocation of some of Burger's other material. Nearly every paragraph required
a
drawn-out negotiation. As Stewart pushed to insert as much of his draft as possible to dilute the Burger rhetoric, the length of the opinion almost doubled.
Black remained a major obstacle. Spurning the negotiating process, Black insisted that he would not join any opinion that mentioned or approved of busing to achieve racial balance. And Burger used Black's intransigence as
a
lever in his negotiation with Stewart. It had been difficult to coax Black along, Burger explained. Hugo had already compromised
a
great deal. The others would also have to compromise.
Stewart could hardly contain his frustration in his face-to-face meetings with the Chief. Privately he knew that what the Chief painted as an
8
-to-1
split was really a
7
-to-
2
split. As one of the two members of the minority, the Chief was doing his best to control the opinion. "If Black did not exist, Burger would have to create him," one clerk complained.
Stewart's frustration had reached its limit. He still hoped for
a
unanimous court. But if Black insisted on holding out, an
8
-to 1
opinion would be close enough. Black would be dealt with later, once the other eight agreed. It was time to call the Chiefs bluff. He let the Chief know he wanted his changes made.
Brennan, too, felt frustrated. By not writing himself, by letting Stewart—who was really in the middle—negotiate for the liberals, it was going to be difficult to get an acceptable opinion. Stewart's final draft, even with modifications, would have been barely sufficient. Now, he was making compromises with Burger that Brennan found increasingly unsatisfactory.
It was clear that the Chief had moved from his true position in order to accommodate the majority. He wanted to be the author. What had started out as an antibusing opinion was taking shape as at least a moderate endorsement of busing and McMillan. The negative tone, if it was not yet positive, was at least becoming neutral. But the Chief had not come far enough, and now he seemed to be digging in. It was time to act.
Brennan had all three of his law clerks draft a detailed memo listing his objections to the latest Burger draft. "This is my shot," Brennan told his clerks, "and I want to draw the line." Because the Chief wanted unanimity, Brennan felt there was no reason not to threaten to be as immovable as Black.
Brennan's memo made four basic points:
Brennan sent his memo to the Chief and the other Justices. Faced on all sides with insurrection, the Chief circulated still another draft. The tone, and much of the substance, was a far cry from his first draft four months earlier.
Where Burger's first draft had declared that past delays by Southern school boards in dealing with desegregation were "not now relevant," the new draft said that "the failure of local authorities to meet their constitutional responsibility aggravated" problems in desegregation.
The Chief had also declared in his first version that judges had less power in school desegregation cases than in other types of cases involving constitutional violations. Now, in a victory for Stewart, the latest draft declared them identical. Burger's section prohibiting federal judges from taking into account residential segregation had also been removed. On the other hand, Douglas's suggestion that judges be
required
to consider residential segregation had not been adopted either. Marshall's language had been adopted, specifying that courts should give "great weight" to residential segregation in designing desegregation orders if the residential segregation was at least caused in part by school board decisions—such as decisions to close or open schools in certain neighborhoods.
The racial-balance question was split down the middle, but basically it affirmed McMillan. The draft still said that the Constitution did not require it. But, on the other hand, it stated that "the very limited use made of mathematical ratios was within the . . . discretion of the District Court." In case the message was missed, the final draft praised McMillan's "patient efforts."
Not all the battles, however, had been won by the liberals. A "small number of one-race" schools was not necessarily a mark of an illegally segregated system, the draft said. But there was a "presumption" against them, and the goal should be their elimination.
Burger and Stewart had agreed on two other sections that gave the liberals some problems. The age of students, the draft said, should be taken into account in busing orders. A section tacked onto the end also made it clear that it was unnecessary to readjust the racial composition of schools each year—a defeat for Brennan.
But the bottom line—the answer to the question of how much desegregation was adequate—was a clear victory for the liberal wing of the Court. "The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation," the new draft said.
The Chief had abandoned his earlier language about "limitations" on busing. The new version approved McMillan's plan as "reasonable, feasible and workable." Burger had also worked out a tricky compromise that was meant to avoid offending either McMillan or the Fourth Circuit Court of Appeals headed by Judge Haynsworth. The order said that the Fourth Circuit was affirmed to the extent that it affirmed McMillan. And, it said, the remainder of McMillan's order was also affirmed. Thus, without saying so, the Court actually reversed that portion of the Fourth Circuit opinion which had not upheld McMillan.
The order was a jumble of compromises, but the new draft had one thing going for it: it had the backing of eight Justices.
Black remained unhappy. The time had come, he decided, to make his stand. He had heard all his clerks' arguments that desegregation
now,
which he had demanded the previous year, could not be accomplished without busing. He was not willing to accept that logic They were two entirely different issues.
Black was convinced that massive forced busing would trigger a wave of militant, perhaps violent, resistance in the South. For two decades, he had believed that white parents would never desert the public schools. Now he was convinced they would take their children to private and parochial schools.
Black sent a memo to his colleagues. He would not go along with any opinions that explicitly approved compulsory busing. Unless the others acquiesced, removing the endorsement of McMillan's busing order, Black was going to dissent.
Harlan was peeved. It had been bad enough the year before, when Black had threatened to dissent in the Mississippi desegregation case unless he got his way. Now he was doing it again. These continuing blackmail attempts were outrageous. Faced with recalcitrant school boards willing to seize any difference, unanimity in school cases was an important tradition. To hold it hostage, Harlan felt, demeaned both Black and the Court.