Blackmun, energized for the first time that morning, asked questions about why the women who were suing had not sued the hospital as well as the state of Georgia. He also questioned Hames closely on the widespread practice of requiring that medical panels—not simply one doctor— approve certain types of abortion, thus making them difficult to obtain.
Blackmun's tone was hostile throughout. Overall, he had found the quality of oral argument in these cases poor. The abortion issue deserved a better presentation.
The rule of thumb at the Court was that oral arguments rarely win a case, but occasionally lose one. The Texas Attorney General would certainly have hurt his case had it not been for the fact that the case would be decided on the question of jurisdiction.
As the father of three outspoken women and the husband of another, Blackmun was sensitive to the abortion issue. Even more, as a former counsel to the Mayo Clinic, he sympathized with the doctor who was interrupted in his medical practice by the state, and told how he could or could not treat his patients. On the other hand, Blackmun generally felt the states should have the right to enforce their legislative will
Stewart thought that abortion was one of those emotional issues that the Court rarely handled well. Yet it was becoming too important to ignore. Abortion was a political issue. Women were coming into their own, as Stewart learned from his daughter Harriet, a strong, independent woman.
As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws. The public was ready for abortion reform.
Still, these were issues of the very sort that made Stewart uncomfortable. Precisely because of their political nature, the Court should avoid them. But the state legislatures were always so far behind. Few seemed likely to amend their abortion laws. Much as Stewart disliked the Court's being involved in this kind of controversy, this was perhaps an instance where it had to be involved.
Stewart had no intention, however, of declaring himself the Court's leading activist. The abortion advocates argued that the Court should extend its
1965
decision in a Connecticut birth-control case,
Griswold
v.
Connecticut. A
majority of the Justices had held in that case that, although no right to privacy was explicitly stated in the Constitution, it was implied from a number of the Amendments. They had ruled that Connecticut could not prohibit married couples from using birth-control devices. Abortion advocates wanted that constitutional right to privacy extended to abortion.
Stewart thought that the abortion advocates' argument was too drastic. He had dissented from the
1965
decision, and he was reluctant to renounce his position. It was simply unnecessary for the Court to create another new constitutionally based right.
In a case the previous year
(U.S.
v.
Vuitch),
when the Court had upheld restrictions on abortion in the District of Columbia, Douglas had argued in dissent that a physician's judgment on abortion was a professional judgment that should not be second-guessed. Maybe this was the approach.
Stewart thought he could expand Douglas's argument to show that some anti-abortion statutes inhibited a doctor's ability to exercise his best judgment. Since a state-licensed doctor was a professional, the laws should not interfere with his judgment on behalf of his patient. On that theory, Stewart could vote to knock out the Georgia law—which required that abortions be approved by two doctors and a hospital committee—without creating an explicit constitutional right to abortion. But he did not want to be the one to raise this issue in conference.
Douglas had presented this rationale the year before. Since he was the Justice most likely to point out any inconsistency by Stewart with his past positions, one of Stewart's clerks went to Douglas's chambers. Stewart was considering voting against the Georgia abortion law, he told one of Douglas's clerks. If Douglas were to resurrect his reasoning, it might help.
The clerks compared notes. It seemed that Blackmun had also asked his clerks to
research the same point. Black
mun's high regard for doctors might make him susceptible to this argument. The message from Stewart's clerk was relayed to Douglas.
Douglas was not impressed. Stewart was a patrician, a Rockefeller Republican; bis constituencies were not the poor or women. He was "off in a cloud," hobbled by the
noblesse oblige
of America's upper class. Stewart was more concerned with the appearance of his jurisprudence than with its substance. Douglas was convinced that Stewart was out of touch with three quarters of American society. He used to make fun of Stewart's elitist Yale background. No, Douglas decided, there would be no special assistance for Stewart. As always, Douglas would present his own thoughts and let the others fend for themselves.
The buzzer summoned the seven Justices to conference that Thursday. Douglas's travel plans had caused it to be scheduled a day early.
Before dealing with the abortion cases, the conference took up
Mitchum
v.
Foster,
a case which involved a Florida "adult" bookstore that had been shut down by a state judge for peddling obscene materials.
Mitchum
posed a similar question of jurisdiction that was presented in the abortion cases. Could the bookstore owner go into federal court before the state courts had finished with the case?
Stewart concluded that, despite restrictions the Court had previously placed on federal-court intervention, the doctrine of nonintervention had its limits. The federal courts must be allowed to intervene wherever a glaring constitutional violation was taking place. Contrary to Douglas's expectation, Stewart joined Douglas, Brennan and Marshall to make it
4
to
3
for asserting federal jurisdiction.
Since the jurisdiction question here was the same as in the abortion cases, the Court had effectively decided the abortion jurisdiction issue as well. The Court
did
have jurisdiction. Suddenly, unexpectedly, the Court found itself faced with the underlying constitutional issue in the abortion cases. Did women have a right to obtain abortions?
The Chief had some difficulty in summarizing the cases. The Georgia law, requiring approval by two other doctors and then a hospital committee, put unusual restrictions on a physician who wanted to perform an abortion.
As Stewart had hoped, the discussion focused on the professional rights of a doctor seeking to perform an abortion, rather than on the rights of a woman trying to obtain one. Both Stewart and Blackmun were sympathetic to the arguments for lifting some restrictions on physicians. Each Justice focused on a different aspect of the case. As discussion continued, their positions emerged:
The Chief strongly in favor of upholding the state abortion laws, but not casting a clear vote;
White also for upholding;
Douglas, Brennan and Marshall strongly in favor of striking down the abortion laws on broad grounds of women's constitutional rights;
Stewart and Blackmun in favor of striking down at least portions of some of the laws, if only on narrower grounds of professional discretion.
These are difficult cases, the Chief said. No one could really tell how they would come out until the final drafting was done. The cases might even be candidates for re
-argu
ment after the two new Justices were sworn in.
Brennan and Marshall counted the vote
5
to
2
—Douglas, Brennan, Marshall, Stewart and Blackmun for striking the laws; the Chief and White dissenting.
Douglas, however, thought there were only four votes to strike the laws. Blackmun's vote was far from certain. He could not be counted on to split with the Chief on such an important issue.
For his part, Blackmun was for some kind of limited ruling against portions of the law, but he had not decided what to do.
White believed the vote was three for striking—Douglas, Brennan and Marshall; three for upholding—White, Stewart, and Blackmun; and the Chief, who had passed, but clearly had strong feelings for upholding.
Stewart told his clerks, "We're going to face the abortion issue squarely," and there seemed to him to be a majority to strike the laws. The puzzle was Blackmun.
The Chief's assignment sheet circulated the following afternoon. Each case was listed on the left side in order of the oral argument, the name of the Justice assigned to write each decision on the right.
It took Douglas several moments to grasp the pattern of the assignments, and then he was flabbergasted. The Chief had assigned four cases in which Douglas was sure the Chief was not a member of the majority. These included the two abortion cases, which the Chief had assigned to Blackmun. He could barely control his rage as he ran down the list. Was there some mistake? He asked a clerk to check his notes from the conference. Douglas kept a docket book in which he recorded his tabulation of the votes. It was as he suspected.
In the Florida bookstore case, which raised a similar jurisdictional question as the abortion cases, and in which the Chief was a member of the minority, Burger had not only assigned the case but assigned it to another member of the minority. Douglas was all the more incredulous, since this case provided the basis for jurisdiction in the two abortion cases.
In another case
(Gooding
v.
Wilson),
the Chief had assigned a case in which he and Blackmun were a two-vote minority. Douglas, as the senior justice in the majority, had already assigned this case at conference to Brennan.
In a fifth case
(Alexander
v.
Louisiana),
the Chief had been in the majority but had assigned Stewart, a member of the minority, to write. Stewart sent the Chief a memo declining for that reason.
Never, in Douglas's thrrty-three years on the court, had any Chief Justice tried to assign from the minority in such fashion. For two terms now there had been incidents when the Chief had pleaded ignorance, had claimed he hadn't voted, had changed his vote. Until now they had been isolated instances.
At the first conference of the term, in a prison case
(Younger
v.
Gilmore),
the Chief had taken a position against the other six and, to Douglas's astonishment, attempted to assign the decision to himself.
Douglas had always been deferential to the Chief. As much as he despised Burger, he knew the Chief Justice's prestige determined the Court's: to an extent, its reputation could not be greater than his. Douglas might have differed with other Chief Justices, but he always respected their office. Occasionally, as in Warren's case, the Chief provided brilliant leadership. Douglas was not one to block a Chief's prerogatives; normally, he tended to his own business.
But the prison case had been too much. Douglas had simply gone ahead and assigned Marshall to write a majority
per curiam.
He had then informed Burger that he had made the assignment because the Chief had not been in the majority. The incident had hurt Burger's feelings. He had not voted at conference, he explained in a memo. He had merely given his preliminary view. By the time of the assignment, he had become a member of the majority. He would have drafted a fitting majority opinion. But that time, the Chief had backed down.
Since then, Douglas had let other misassignments slip by. "God, I miss Hugo," Douglas lamented to friends whenever Burger manipulated assignments. "Burger would never have dared pull that if Hugo were around." As senior Associate Justice, Black had helped keep the Chief within bounds. To Douglas's dismay, that role now fell almost exclusively to him.
Four misassignments at one time, however, was simply too much to let pass. Douglas was convinced that as the senior member of the majority, he should have assigned all four of the cases. What particularly bothered him was that the Chief had given the abortion cases to Blackmun, his personal ally. Blackmun had voted with the Chief nearly every time the previous term. The Chief might as well have assigned the abortion cases to himself.
On Saturday, December
18,
Douglas drafted a scathing memo to Burger, with copies to the other Justices. He, not the Chief, should have assigned the opinions in four of the cases. And, Douglas added, he would assign the opinions as he saw fit
The Chiefs response was back in a day. He conceded error in two of the cases, but insisted that the voting in the two abortion cases was too complicated. "There were . . . literally not enough columns to mark up an accurate reflection of the voting," Burger wrote. "I therefore marked down no votes and said this was a case that would have to stand or fall on the writing, when it was done.