Shortly after the
Pentagon Papers
decision was announced, Griswold asked to see the Chief. He informed Burger that he had been privy to some extremely reliable leaks on voting patterns within the Court, including the temporary deadlock in the A
li
case, and that he regularly learned which cases would come down each Monday. He had known precisely when the Pentagon Papers case would be announced, Griswold said. He had wanted to tell the Chief earlier, but had decided to wait until the term's work was complete. Griswold expressed concern about the confidentiality of the conference. He did not elaborate, but he remarked simply that some members of his staff knew some clerks at the Court. The Chief thanked him.
It was clear when he brought the issue up at conference that Burger was upset. Th
e F.B.I., he said, should inter
view each clerk, and conduct lie-detector tests. Personally, Burger said, he avoided the possibility of leaks by not telling his own clerks about votes or discussion at conference.
"You can tell he doesn't talk to his clerks by reading his opinions," Brennan later remarked.
When the other Justices objected to the lie-detector tests, the Chief backed down and' appointed a committee on security to be chaired by Stewart and to consider the matter further.
The Chief took one other step as well. In the future, the law clerks would no longer schedule basketball games against teams from the Solicitor General's office.
Douglas was especially pleased with the outcome of the Pentagon Papers case. He was now confident that he could gather the votes to grant cert on the constitutionality of the war if the right case were to come along. Brennan and Black were now ready to consider it. With Stewart and Harlan, he would have a comfortable margin of at least five to grant cert.
1971 Term
In late August
1971,
the Chief invited his new clerks to join him for lunch. It was a last-minute invitation. Several arrived at the ground-floor Ladies Dining Room carrying their cafeteria lunches on trays. Since they had come to the Court at various times over the summer, Burger's clerks had had only fleeting contact with their boss.
Alvin Wright, the Chief's messenger and valet, stood in the doorway wearing a white waiter's jacket. The sight of the familiar messenger dressed as a waiter was startling enough, but suddenly Wright pivoted and snapped to attention. "The Chief Justice of the United States of America," he called out.
By reflex, the clerks rose.
"You've got to be shitting me," one mumbled in the face of a hostile stare from Burger's senior clerk.
Burger strolled into the room, greeted each clerk graciously, and took his place at the head of the table. The antique table was covered with a linen cloth and set with the Court Historical Society's china and silver. Here in this dining room with pale-yellow walls covered with portraits of the wives of the former Chief Justices, Burger felt comfortable. He had taken a great interest in the proper refurbishing of this room. Newly acquired antiques, financed through the Society wit
h donations from prominent Wash
ingtonians and members of the bar, were selected by the Chief with great care. The room itself was a vestige of an age when the Court's oral arguments were among Washington's premier social events attended by the Justices' wives and their guests.
Burger enjoyed entertaining in the midst of this elegant collection of period pieces. The guests that he invited to dinners here were as carefully selected as the decor, drawn for the most part from admirers he encountered as he
moved through social Washington. But the esteem of outsiders was not enough. Burger genuinely sought understanding and respect from the young men who came each year to work as his clerks. He missed the relaxed days of the Court of Appeals, when he often took his clerks to his house in Arlington and cooked them a gourmet meal. Now, with the press of Court and administrative duties, he was lucky to manage lunch with his clerks once a month.
Burger began this gathering with an introduction to the approaching term. Lamenting the fact that both John Harlan and Hugo Black had recently been hospitalized, he told some anecdotes about the warm affection that existed between these ideological opponents. He emphasized his respect and admiration for the two legal giants.
The Chief also expressed concern about Marshall's recent emergency appendectomy. Marshall had not allowed the news media to know about complications that had arisen from a stomach ulcer.
And
though Douglas was healthy, he had had his heart "pacemaker" batteries replaced three months before.
The message was clear. Reluctantly but inevitably, the Chief was having to assume additional burdens of leadership. One of the most pressing problems of the approaching term was the evident confusion of the lower federal courts in the wake of the Charlotte desegregation and busing decision. Many district judges had ordered massive busing in an apparent attempt to achieve racial balance in each school, the Chief explained. This had provoked a massive public outcry. It was all unnecessary, the Chief said. The Charlotte decision did not require racial balance. He told the clerks how he had struggled to overcome Black's adamant opposition to any busing. Only his personal effort had allowed the Court to come down with a unanimous decision.
One of the clerks, familiar with the case from a year's clerking at the Fourth Circuit Court of Appeals, politely challenged Burger. In the Charlotte case, the Supreme Court had approved Judge McMillan's order and McMillan had used racial balance in devising the busing remedy.
No, the Chief explained patiently, as the author of the opinion he knew what the Court was trying to achieve. Since the original school desegregation decisions in
1954
and
1955,
the lower courts had been confused about whether the Supreme Court was calling for desegregation or for integration. Clearly, the Court was calling only for desegregation. Forced racial mixing, racial balance, or total integration had not been demanded.
Federal district judges in about twenty desegregation cases in large Southern metropolitan regions had misread the Charlotte opinion, Burger told them, and the result had been orders for massive busing. As it happened, he had an emergency request on his desk from the Winston-Salem, North Carolina, school district to stay a busing plan ordered by a district court judge. The judge had mistakenly ordered busing to achieve racial balance. Burger said he would end the unnecessary confusion over busing by writing a single-justice opinion to accompany his order. This would be no
"post hoc"
repair job, Burger said, but simply a clarification.
The clerks had heard the rumors of the rancorous debates over the Charlotte case. Varying scenarios placed Stewart, Brennan, Harlan, Douglas and even Marshall in key roles resolving a conflict brought to a head by the obstinacy of both Black and the Chief. Now, they were bewildered to find that Burger expected them to believe that he had been the single author of the final opinion. Several wondered whether the Chief even understood what he had "authored" in the Charlotte case. He was espousing the position he had been forced to surrender last term.
Burger turned to other matters, pausing briefly here and there before spinning off in new directions. Several clerks glanced at their watches. They had hundreds of cert petitions and scores of memos to complete. The Chief's head clerk noticed that the nodding of one of the new clerks was becoming more and more pronounced. He seemed to be asleep. A nudge was passed along the perimeter of the table.
It was nearly three o'clock when Burger got up and returned to his office to deal with the Winston-Salem case. He telephoned several of the other Justices, some of whom were not yet back in Washington.
Brennan was adamantly opposed to a stay. The lower court had acted properly, he declared. Several of the Justices also expressed their opposition. On the other hand, the week before, Black had
issued a stay order in a similar
busing case (Corpus Christi), saying that the situation way too confused to be considered on the spur of the moment. Burger did not want to grant the stay on his own; his intention could too easily be misunderstood. He did, however, want to make the point that integration and strict racial balance were not required. He finally thought that he knew how to achieve both objectives. He wrote that an inadequate record and the fact that only one week remained before the schools were scheduled to open made it impossible to grant a stay in the Winston-Salem case. But any interpretation that the Charlotte opinion required racial balance was "disturbing," and might involve "misreadings." He believed the district and appeals court judges in Winston-Salem had read the Charlotte opinion to mean that racial balance was required. The Chief wanted to send a message to those judges and all other lower-court judges.
In the Charlotte opinion, the others had insisted on saying that racial balance was not simply a means to assess whether there was a violation of the law, but that it was "a useful starting point
in shaping a remedy
to correct past Constitutional violations." Some selective editing was needed, Burger concluded.
He wrote that racial balance was "an obvious and necessary starting point to decide whether in fact any violation existed," and he stopped there, leaving out any reference to its use in shaping a remedy. Then he carefully chose from the Charlotte opinion the language that he felt was important. "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing,
that approach would then be disapproved and we would
be
obliged to reverse.
The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." To be sure that no one missed the point, the Chief added the emphasis. He released his ten-page opinion on August
31,
the day after the schools opened in Winston-Salem.
Brennan was especially unhappy with the tone. The order had been written as if it were meant to be construed as a majority opinion, as if the Chief were speaking for the Court. Burger had mischaracterized the case, Brennan told his clerks. The Court had settled all this last year.
There were, Brennan was well aware, vague, even contradictory notions in the Charlotte opinion. That had been inevitable, given the demand for unanimity. But the lower court judges had interpreted it correctly, as Brennan had hoped they would. Now, in order to put the brakes on the lower courts, Burger was trying to confuse the situation all over again. Brennan was offended that the Chief in his opinion would go so far as to offer his view that three hours average daily busing was excessive. Brennan agreed, in fact, with this view, but it was inappropriate for the Chief to offer his personal standard.
Burger had also suggested that if the busing was too extensive, students should be allowed to transfer to schools nearer their homes. This was an invitation to school districts to subvert desegregation orders, Brennan thought. One of Brennan's clerks joked that Nixon—who the month before had ordered the Department of Health, Education and Welfare to hold busing to "the minimum required by law"—had given Burger his marching orders.
No, Brennan responded, Warren Burger did not need Richard Nixon on this issue.
Tension over Burger's unilateral redefinition of the Charlotte case was eclipsed by the rapid physical deterioration of Black and Harlan.
The Pentagon Papers case turned out to be only a temporary reprieve for Black. His headaches had resumed with greater frequency and intensity. Douglas counseled Black to resign. But Black would not accept the advice.
He had checked into the Bethesda Naval Medical Center for four days in mid-July and returned for two more days of tests later in the month. Despite his doctor's conclusions to the contrary, Black was certain that he had cancer. He had lost his appetite and weighed barely
115
pounds when his doctors asked his family to bring him back to the hospital in mid-August. Two days before he entered, he asked a former clerk, Lou Oberdorfer, a prominent Washington attorney, to draft a letter of resignation. Oberdorfer brought a copy to Black the next night. Black left the date open, but he signed it. "This," he said, "will protect the Court."
Black entered the hospital the next morning, August
27.
Harlan, undergoing diagnostic testing for recurring back pains, was in the next room.
In contrast to Black, Harlan continued to run his chambers from his hospital bed. Nearly blind, he could not even see the ash from his own cigarette, but he doggedly prepared for the coming term. One day a clerk brought in an emergency petition. Harlan remained in bed as he discussed the case with the clerk. They agreed that the petition should be denied. Harlan bent down, his eyes virtually to the paper, wrote his name, and handed the paper to his clerk. The clerk saw no signature. He looked over at Harlan.