One of Brennan's clerks started by mentioning a law school professor who planned to use Blackmun's opinion in a course entitled: "Has the Supreme Court Lost Touch with Reality?" How could Blackmun justify his opinion? the clerk asked.
Blackmun explained that the woman wasn't eligible for welfare anyway. He cited a footnote where he had written that the record in this case showed that the woman failed to satisfy the requirements for eligibility, had a bad attitude toward the caseworkers, was reluctant to cooperate, evasive and belligerent.
The room erupted. Many of the clerks were incredulous. Blackmun seemed to think he was still on a lower court, deciding a single case. Didn't he realize that he was creating the law of the land, setting precedent? Blackmun's clerks were embarrassed. Clearly if the recipient wasn't eligible for welfare, no precedent-setting decision should have been written. It was elementary.
More than anything, however, Blackmun often seemed paralyzed by indecision. The problem was greatest on cases where his was the swing vote.
As he left the bench one day early in the term, Harlan overheard Brennan discussing a crucial case
(Younger
v.
Harris et al.)
with Blackmun. It had been held over for three straight years, because the conference was deadlocked on the question of the power of federal courts to intervene in state court proceedings. Harlan, uncomfortable with lobbying, jokingly suggested to Brennan, "Why don't we let Harry confer by himself on these and we'll go back and get some work done."
Black also was concerned about Blackmun. "If he doesn't learn to make up his mind, he's going to jump off a bridge some day," Black remarked to his clerks. Black tried to help, and he would occasionally wander down the hall to Blackmun's chambers to provide encouragement. "Now Harry," Black once said, "you just can't agonize over it You have just got to vote."
But Blackmun plodded along, working day and night, trying to master the record in each case, and read all previous Court decisions in every given area. Blackmun not only couldn't see the forest but was overwhelmed by each tree, Black figured. On one case in which he had voted to join Blackmun's dissent, Black walked down to see how Blackmum was doing. He found his colleague working away as usual, with piles of law books spread all over. Black looked over the work. "That's the way to it, Harry," he said. "Strike for the jugular, strike for the jugular."
The long delays were strategically bad for Blackmun. As he struggled to get out his views, other justices filed theirs and moved on to new cases. His influence was slight. When he first arrived, Blackmun warned Burger that they would be tagged the "Minnesota Twins" after the baseball team for their home towns—the Twin Cities of St. Paul and Minneapolis. It took only half a year of voting together before Blackmun's prophecy came true. He was only surprised it had taken so long.
Still, it particularly offended him, because it was clear that the Chief was the dominant twin. The notion implied that Blackmun had no judicial mind of his own. But the fact remained that he and Burger had found themselves on opposing sides only twice in the first fifty cases decided by the Court. He never seemed to disagree with the Chief when it really counted. The clerk network had another name for Blackmun: "Hip pocket Harry." Burger, they felt, controlled not only his
own vote but Blackmun's as well.
Burger brooded about his public image as a "conservative." The press liked to label Justices as conservatives, liberals or moderates. That was understandable, Burger felt. Most people needed the shorthand, because they didn't read opinions or study the Court. But the labels were misleading and unfair. He didn't think of himself as a conservative. The press had cast him in that role, comparing him unfavorably with their hero Earl Warren. Burger thought of himself as moderate. Warren had been an "activist." Burger was determined to correct his image, to vote with the liberal wing, to write some "liberal" opinions. That, he confided to his clerks, would confuse his liberal detractors in the press.
In one case
(Griggs
v.
Duke Power Co.),
a
group of black laborers at the Duke Power Company in North Carolina had protested the company's requirement that they have high-school diplomas and pass intelligence tests in order to be promoted from laborer to the higher-paying job of coal miner. The laborers charged that the tests were simply a way of discriminating against blacks. They had lost in the lower courts and had petitioned for Supreme Court review. Burger had put their cert petition on the "dead list," a list of petitions that he felt did not even need to be considered at conference. Any single Justice could remove a case from the dead list for conference discussion, but those that remained on the dead list for a conference were automatically denied.
Although Brennan was supposed to be out of the case because he had once represented the company, he got Stewart to take it off the dead list. Brennan hoped the decision would go against his former client. The case was discussed, cert granted, and oral argument heard. The black laborers won.
The Chief assigned the opinion to himself. One of his clerks did virtually all of the research and drafting. Stewart was surprised by Burger's draft. It was well-written with first-rate reasoning. He was staggered, however, by the sweeping language of the opinion. "If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited," Burger wrote.
Although the lower court had found that the company didn't intend to use the test to discriminate against blacks, Burger said that intentions were irrelevant—"Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups." N.A.A.C.P. lawyers and the liberal press praised the unanimous decision. Burger was proud of it.
Later that term, in a sex discrimination case
(Phillips
v.
Martin Marietta),
Burger wanted to rule in favor of a company that refused to hire women with preschool-age children. He strongly supported the company's policy. "I will never hire a woman clerk," Burger told his clerks. A woman would have to leave work at
6 p.m
. to go home and cook dinner for her husband. His first clerk back in
1956
at the Court of Appeals had been a woman, he told them. It had not worked out well at all. As far as he was concerned, an employer could fire whomever he wanted and for whatever reason. That was the boss's prerogative.
When it was suggested that his position amounted to a declaration that part of the Civil Rights Act was unconstitutional, Burger angrily shut off the discussion. He didn't want to argue legal niceties. His experience showed him that women with young children just didn't work out as well as men in the same jobs. The employer was within his rights.
At conference, however, the majority voted the other way. Burger returned to his chambers and announced that he wanted a
per curiam
(unsigned opinion) drafted, ruling that unless the company could show that conflicting family obligations were somehow more relevant to job performance for women than for men, the company would have to lose. "It was the best I could do," Burger told his amazed clerks. The decision became another liberal opinion for the Burger Court.
A month later, Burger told his clerks that he intended to vote to uphold a state court decision ordering a community group to stop picketing near a real estate broker's home
(Organization for a Better Austin v. Keefe).
The organization had distributed literature in the broker's neighborhood accusing him of "blockbusting" in their neighborhood some miles away. A man's home was his castle, Burger told his clerks. The broker's home shouldn't be picketed. But after conference Burger told his clerks that he was writing an opinion to overturn the state court order and allow the group to continue picketing. The order halting it, he now said, interfered with the group's First Amendment rights of free speech and peaceable assembly.
Burger would often write short dissents or concurrences to opinions scheduled to come down the following week. These short opinions were his gut reactions, often angry in tone. They expressed his notion of right and wrong, of common sense—his real political philosophy. He called them "little snappers."
His clerks usually asked to edit them. Blatant political and moral assertions could be rewritten in legal language or couched in terms of "judicial restraint," "strict constructionism," or "states' rights."
A few days later, in a calmer mood, Burger would frequently have second thoughts about these opinions. "Oh, I wasn't really serious about that," he would say briskly. "You didn't send it to the printer did you?"
"I have no plans to retire or not to retire," Hugo Black told reporters at a press conference two days before his eighty-fifth birthday in February
1971.
Such questions were becoming more frequent. He was serving his thirty-third year on the Court. Only four Justices had served longer.
Privately, Black had been giving the notions of retirement and death considerable thought. The previous term, when he was hiring new clerks, he told one applicant: "You must realize that I may die. And I may retire. If you want the job with those risks, it is yours."
As the term moved into the spring, Black's health deteriorated. He was suffering from frequent painful headaches. He took aspirin and painkillers, but the medication made him sleepy and he napped more frequently. It was difficult to discuss things with him. He could latch onto some past event and begin to reminisce. It frequently was impossible for his clerks to steer the conversation to the immediate issue. Black began to stumble badly in conference. He would become tired and confused, unable to remember which case they were on. He bitterly rejected Burger's suggestion, however, that the conferences end
a
bit earlier to accommodate him.
Black occasionally became shrill in dissents from the bench. When Harlan's majority opinion came down in
a
Connecticut divorce case that had been held over from the previous term
(Boddie
v.
Connecticut),
Black found himself alone in dissent. "Is this strict construction?" he demanded from the bench as Burger and Blackmun, Nixon's strict constructionists, stared stonily ahead. "If ever there has been a looser construction of the Constitution in this Court's history, I fail to think what it is."
Once, Black read a dissent from the bench in a search-warrant case
(Whitely
v.
Warden)
in which Harlan had written that the warrant had to be based on probable cause, not simply on what one sheriff had told another. For several minutes, Black railed on, accusing Harlan and the majority of writing a decision "calculated to make many good people believe our Court actually enjoys frustrating justice by unnecessarily turning professional criminals loose to prey upon society
..."
Harlan sadly told his clerks afterward that he wished "Black hadn't done that."
Despite his ailments, however, Black still had the energy to turn the Court his way. In one case
(United Transportation Union
v.
State Bar of Michigan)
Harlan circulated an apparent majority opinion, upholding some restrictions on unions that offered legal services to their members. Black wrote a stinging dissent, arguing that any restriction on the union was unconstitutional under the First Amendment
After dropping it off at the printers, Black took off for lunch with one of his clerks. As they walked down the halt they passed Harlan. "John," he said, "I have a little love note coming over to you this afternoon." Eventually, Black won a majority for his view.
Since
1966,
Douglas had been urging the Court to take up the Vietnam war
{Mitchell
v.
U.S.).
He felt strongly that Vietnam was different from other American wars; it was a war of aggression. The Court, however, had shown little stomach for the issue.
In
1967,
Douglas picked up a second vote, Stewart's, to hear a case concerning whether the
1964
Gulf of Tonkin resolution amounted to a congressional authorization of the war
(Mora v. McNamara).
But at no time had there been four votes to grant cert and bring a Vietnam war case before the Court.
Now, in
1970,
Douglas saw a new opportunity
(Massachusetts
v.
Laird).
The Commonwealth of Massachusetts, a hotbed of vocal war opposition, had passed a law stating that
no
citizen could be required to serve in combat abroad unless the hostilities were constitutional, either under the President's powers or by explicit declaration of war by Congress. Because the state had brought the case against the United States government, it could come directly to the Court. It was up to the Court to decide whether to allow the state to file it.
Douglas wrote a memo conceding that the Court could not, and should not, address the question of whether the country should "fight a war in Indochina," But it should address the question "whether the Executive can authorize [such a war] without Congressional authorization." Stewart quickly indicated his willingness to vote to hear the case. They needed two more votes.