White said it was important that the Court not discredit itself by deciding cases one way and then shifting and deciding them the other way. Two votes added to the minority side of a
4
-10
-3
would become a new
5
-to
-4
majority. The others stirred uncomfortably in their seats. They were unsure of their ground and no one wanted to force the issue.
Powell and Rehnquist said they would prefer not to participate in any vote on whether to hold the cases over for re
-
argument. It was up to the other seven. Powell added that he wasn't sure how he would come out on the cases, particularly the abortion cases. They should not be reargued for him.
One 4-to-3 case involved an antiwar demonstrator who had cursed at a policeman
(Gooding v. Wilson).
The Chief said it should be re
-
argued.
Douglas was sure the vote had been
5
to
2.
"Who was the third vote to reverse?" he asked.
"White," the Chief replied.
His jaw jutting out, White stared at the Chief. No, he was with the majority, he stated. The issue of re
-
argument was finally dropped.
Brennan was relieved. In fact, they didn't even have a draft in the abortion case. Maybe they were getting ahead of themselves. If Blackmun and Stewart shifted positions, then he, Douglas and Marshall might be on the short end of a 4-to-3, themselves demanding that the abortion cases be put over.
Blackmun spent his time—apart from oral argument, conferences and a bare minimum of office routine—in the Justices' library. Awesome quantities of medical, as well as legal, books were regularly carried in. But all indications pointed toward no circulation of a first draft until much later in the spring.
Burger had not yet given up on the federal jurisdiction issue. If he could derail the opinion on this important subject, the abortion issue would not have to be decided. On January
25, 1972,
the Chief circulated a memo and a historical analysis raising three problems with the federal jurisdiction issue settled in the Florida bookstore case that Douglas had assigned to Stewart.
Stewart was not yet prepared to respond. Instead of circulating his opinion, he circulated a memo that Harlan had prepared over the summer on the history of the issue.
Douglas then had one of his clerks get out an elaborate memo on the issue. Unusually detailed and well documented, it responded to each of the questions the Chief had raised. The four-member majority on jurisdiction held firm.
In early April, since several significant opinions remained to be settled, the Chief called for a special conference to deal with the crush of argued and reargued cases. It had to be worked in around the Chief's extensive ceremonial calendar, Douglas's speaking engagements, and long-standing commitments of the other Justices. Burger's secretary called each chamber, double- and triple-checked, and a time was finally set for early in the week.
Shortly before the conference, Marshall asked for a postponement in order to attend a f
amil
y funeral. A new date, Wednesday, April
12,
was set and confirmed. But when Marshall returned from the funeral, he was startled to learn that the conference had taken place at the original time without him. He called the Chief's office. Had not the conference been rescheduled for April
12?
Yes, Burger's secretary explained. But in the interim, the Chief had learned that former Justice James F. Byrnes's funeral had been scheduled for April
12.
So the Chief had decided to hold the conference according to the original schedule.*
Marshall was weary of the Chiefs unilateral decision
making for the conference. He dictated a short memo. No conference had ever been held before, under any Chief Justice, without informing all members of the Court. Now, under Warren Burger, the Court had taken to holding conferences without one of its members.
The Chiefs racial priorities were clear, Marshall sniped privately. A chance to appear in public with the President, who had also attended the Byrnes funeral, was obviously more important to Burger than Marshall's attendance at conference.
The other Justices were mortified. They had not objected on Marshall's behalf. The conference was repeated, every vote retaken. No decision came out differently.
While Blackmun continued to labor on the abortion decision, the Court, now at full strength, took up a case involving antiwar demonstrators who had distributed literature at a shopping center in Portland, Oregon
(Lloyd
v.
Tanner)
. The protesters had been ejected by shopping center guards.
* After retiring from the Court, Byrnes had become governor of South Carolina. In the famous
Brown
school cases he had personally hired John W. Davis, the preeminent Supreme Court advocate of his time, to argue the segregationist position against Marshall, who represented the Inc. Fund.
The Chief was unsure of his position. Technically, a shopping center was private property. But the demonstrators were exercising free speech in what was, in effect, a public place, with numerous stores and thousands of people coming and going all day. Was the demonstrators' action protected by the First Amendment?
Marshall argued that the case was "on all fours" (identical) with his opinion in
1968
(Amalg
amated Food Employees Union
v.
Logan Valley Plaza),
in which he had written that union pickets could not be stopped from picketing a grocery store in a private shopping center. Marshall was proud of that decision. Now, he spoke firmly and knowledgeably about the case before the Court. The outcome should be obvious.
Douglas, Brennan, Stewart agreed. White had some reservations. There was a limit to free speech on private property. Blackmun, Powell and Rehnquist, each with a slightly different view, sided with White.
With the Chief still undecided, the vote seemed to be tied
4
to
4,
and Marshall had little doubt as to where Burger would finally come out. He returned to his chambers that day a beaten man. For the first time, his clerks saw him truly depressed about the future of the Court. Powell and Rehnquist were going to make a big difference. It was not just a close vote in one case. It was the first wave of full-scale revisionism. The work of the Warren Court would be destroyed.
Douglas returned to his chambers, however, with a different view of the tie. Since the Chief was apparently undecided, Douglas was the senior Justice with a position in the case. He would assign. Because of Marshall's expertise and interest in the area, Douglas selected him to write the
Lloyd
opinion.
But on April
24,
with Douglas out of town, a memo from the Chief came around assigning Powell to write the Lloyd case. When Douglas returned, he was incensed. He prepared a new memo. His careless and crimped scrawl was ordinarily legible only to the trained eye. Now he hacked paragraphs on his legal pad so quickly that the words flowed together.
"Dear Chief Justice:" he wrote instead of the usual "Dear Chief."
You apparently misunderstand.
Lloyd
is already assigned to Thurgood and he's at work on an opinion. Whether he will command a majority, no one knows.
Under the Constitution and Acts of Congress, there are no provisions for assignment of opinions. Historically, the Chief Justice has made the assignment if he is in the majority. Historically, the senior in the majority assigns the opinion if the Chief Justice is in the minority.
You led the Conference battle against affirmance and that is your privilege. But it is also the privilege of the majority, absent the Chief Justice, to make the assignment. Hence, [the
Lloyd
case] was assigned and is assigned.
The tragedy of compromising on this simple procedure is illustrated by last Term's
Swann
[The Charlotte busing case]. You who were a minority of two kept the opinion for yourself and faithfully wrote the minority position which the majority could not accept. Potter wrote the majority view and a majority agreed to it. It was not circulated because we thought you should see it. After much effort your minority opinion was transformed, the majority view prevailed, and the result was unanimous.
But
Swann
illustrated the wasted time and effort and the frayed relations which result when the traditional assignment procedure is not followed.
If the Conference wants to authorize you to assign all opinions, that will be a new procedure. Though opposed to it, I will acquiesce. But unless we make a frank reversal in our policy, any group in the majority should and must make the assignment.
This is a two-edge sword. Byron (fifth in seniority) might well head up five members o
f the Court, you, Bill Brennan,
Potter Stewart and I being the minority; and we might feel very strongly about it. But in that event it is for Byron to make the assignment. It is not for us in the minority to try to outwit Byron by saying "I reserve my vote" and then recast it to control the assignment. That only leads to a frayed and bitter Court full of needless strains and quarrels.
T
he
Lloyd
case] stays assigned to Thurgood.
Douglas omitted the ordinary closing salutation and directed that copies of the memo, with its mocking, patronizing tone, should go to all the Justices.
There were no more cases to be argued. Douglas had pitched his battle on the last assignment of the year. Never a man to procrastinate before wreaking havoc, he sent the memo out on Monday, May i.
Brennan and Marshall were worried. In principle, Douglas was right. They too doubted the Chief's sincerity in reserving his vote. As usual, he was maneuvering to make sure he could assign the case regardless of how the vote went. But if the vote was
4
to
4
with the Chief reserved, then the Court would go whichever way the Chief voted. If Burger assigned Powell, Powell might as well write it. Marshall could write all he wanted, he would never command a majority.
Marshall realized that he was writing his opinion as a dissent. There was always a chance that he might win White's vote, but he was very pessimistic about it since he had been shooting for White's vote all year without much success. All through the term, one of White's clerks had tried to convince Marshall's clerks that he could deliver White's vote on a certain case if Marshall would change a particular sentence. Bullshit, Marshall said. All of them— Marshall, his clerk, and
white
's clerk—knew that Byron White listened to Byron White and to no one else. Marshall was bitterly resigned that he was on the losing side in the
Lloyd
case. And Douglas was not helping with this frontal attack on the Chief.
The Chief was surprised by Douglas's memo. It had never occurred to him that he might be wrong on this assignment. He wrote a note explaining patiently that the case, as he saw it, was
5
to
4
with himself the senior in the majority. Powell would write. Anyone else could also write. They would see who got five votes.
Behind Douglas's back, Burger was less diplomatic. Any unnamed person who thought he was assigning cases improperly was "stupid" or "lying," he told other Justices and friends—at best, simply wrong.
Powell's opinion declared that private property rights were precisely that, private. In the balance, they must prevail over the First Amendment rights of protesters. It won the expected five votes. Powell had carefully sidestepped overrating Marshall's
1968
opinion directly. But he infuriated Marshall by using language from the dissenting opinions in the earlier case. How could Powell claim he was not overruling when he had taken the dissenting position almost exactly, Marshall wondered.
Marshall had his clerk rework his dissent, adding uncharacteristically harsh words. "I am aware that the composition of this Court has radically changed in four years. The fact remains that [the earlier case,
Logan Valley]
is binding unless and until it is overruled."
Marshall was so irritated that he switched his vote from a Powell opinion in the case
(Kleindienst
v.
Mandel)
of a Belgian Communist barred from receiving a visa to speak in the United States.
Marshall was now sure that the First Amendment was threatened by the Nixon Court. The only choice was to stand firmly with Douglas and Brennan.