The Chief could hardly wait for three obscenity cases that were to be among the first argued to the full nine-man Court. He considered it fortunate that the Warren Court liberals had never gotten five votes to agree on a definition; that would have settled the law. Their lack of agreement gave
him
an opportunity to leave his mark in an area of the law on which the Court had been stumbling for fourteen years. There had to be a way to suppress pornography and still protect free speech, he felt.
The January
21
conference, with Powell and Rehnquist now in attendance, was a test of endurance. By the time the Justices got to the three obscenity cases, their energies had measurably faded. The first case
(Miller
v.
California)
was the most difficult, in that it raised questions about the definition of obscenity. The conference put it aside and turned to two cases that involved extending the
Stanley
privacy decision.*
The discussion was complex, the positions difficult to follow, but Douglas counted votes quickly. Stewart and Marshall were ready to vote with
him
to extend the
Stanley
decision to cover both cases. To Douglas's surprise, Powell also joined them. In an effort to bring himself up to par on constitutional law before he arrived at the Court, Powell had asked associates at his old law firm to prepare memoranda on major areas. One of their recommendations had been to extend the
Stanley
privacy doctrine. Powell was willing to follow the advice, at least tentatively. Brennan and Blackmun seemed ready to go along with the four in one case, but not the other.
The Chief waited and spoke last. He was willing to go along in one case, perhaps both. "I'll try my hand at the opinions," he said.
There was nothing fashionable about the boisterous older black man at the corner table of Washington's Trader Vic's restaurant. Amid a Polynesian decor of palm leaves
* US.
v.
Onto
and
U
S. v. Twelve 200-Foot Reels of Super
8
mm. Film.
and bamboo, and in the din of the luncheon crowd on April
27,
two younger men attentively listened to him.
The
older man's heavy dark-brown horn
-rimmed glasses seemed several sizes too small, pinching his massive head. His loud high-pitched "Hee, hee, hee" lasted fully ten seconds as he wheezed at his own jokes.
Marshall was lunching with two of White's clerks. He had turned to his favorite pastime of reminiscing as a respite from the pressures of the Court. An accomplished raconteur, he needed little encouragement to get him started. He would tell stories of Baltimore ghetto life in a resilient family; night riders chasing him along country back roads in the South; courtroom encounters with bigots and buffoons; the little boy in Mississippi who asked him "What's that?" as Marshall ate an orange outside a courthouse; General Douglas MacArthur and the Army's racism.
Often Marshall would corner one of his clerks after lunch and spend hours in the special chair they reserved for him in their office. By the time he had worn out his own clerks' patience, clerks from other chambers might have wandered in for a new round of the endless storytelling. But they could always leave. His own clerks had nowhere to go.
At one point, his clerks tried piling books on Marshall's chair to discourage him from settling in for the afternoon. They underestimated their boss's stamina. Marshall had spent years standing in courtrooms, corridors and school-houses. Finally, the clerks took to hiding in his second-floor office.
The first two years of Burger's reign had had their difficult moments for Marshall. He had always seen Burger as an inappropriate caretaker of a seat that had belonged to a man of the stature of Earl Warren. But his annoyance with the new Chief's style never eroded his respect for the office of Chief Justice.
Now, however, as the four Nixon appointees increasingly joined White and occasionally Stewart to chip away at Warren Court precedents, Marshall felt the outlook was grim. He seemed to grow weary, more discouraged. "I'm going fishing, you kids can fight the battles," he would tell his clerks. "What difference does it make? Why fight when you can just dissent?"
Some clerks in other chambers came to the conclusion that Marshall was unfit to sit on the Court. He was not willing to do his homework, not willing to prepare for his cases, not of the intellectual caliber of Douglas, White, Stewart or Brennan, not combative enough to take on the others in conference.
Marshall's own clerks felt that he knew where he stood on every issue of importance to him. He might not prepare extensively for either oral argument or conference, but his ability to think on his feet—a talent developed during years on the road for the Inc. Fund—made him an incisive questioner at oral argument. And, when he chose to speak, he was a skilled debater at conference.
One of the issues that Marshall enjoyed arguing with his clerks was the question of what was obscene. He loved to take conservative positions with them, maintaining that anything hard-core could be and should be totally banned. What was so important about it? First Amendment principles are not at stake in this case, he would bellow. Dirty pictures are.
What about his liberal opinion for the Court in
Stanley?
his clerks would ask.
He had meant only to protect people's privacy in their own homes, he would claim with a grin. Publishers, distributors, sellers could be stopped.
But, a clerk once pointed out, "You said that the right to privacy must go further than the home."
"No," Marshall retorted. He had never said that.
Yes, the clerk insisted.
No, never, Marshall was sure. "Show me."
The clerk brought the bound opinions.
Marshall read the relevant section.
"That's not my opinion, that's the opinion of [a clerk from the prior term]," he declared. Opening the volume flat, he tore the page out. 'There. It's not there now, is it?"
At Trader Vic's, Marshall had just launched into another story when he suddenly stopped. He stared at his watch a moment. It was about
1.50
"My God, I almost forgot," he said in a stricken tone. "It's movie day, we have to get back."
Movie day was the humorous highpoint of most terms.
Year after year, several of the Justices and most of the clerks went either into a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court.
Douglas, and Black during his years on the Court, never went. In their view, nothing could be banned. "If I want to go see that film, I should pay my money," Black once said, and he wondered aloud why nine men, many in their seventies, should make judgments about sexuality. The Court was acting as a "Supreme Board of Censors," he said.
Burger too preferred not to go.
But the others sat on folding chairs with their
clerks, watching such films as
I
Am Curious (Yellow)
projected onto a white wall. During his later years, Harlan watched the films from the first row, a few feet from the screen, able only to make out the general outlines. His clerk or another Justice would describe the action. "By Jove," Harlan would exclaim. "Extraordinary."
Clerks frequently mocked Stewart's approach to obscenity, calling out in the darkened room: "That's it, that's it,
I
know it when I see it."
Marshall's quips were the best. The previous term, a pornographic movie had used the familiar ruse of posing as an educational film. The actor playing a psychologist had concluded by stating, "And so our nymphomaniac subject was never cured." Marshall retorted, "Yeah, but I am."
Now the lights were about to go off as Marshall and White's clerks plunged through the door to see
Vixen,
a "soft-core" feature with nudity but no explicit intercourse.
The last thirteen minutes consisted of an attempted hijacking of the plane carrying the female protagonist by an Irish Communist bound for Cuba. He gave a talk on the comparative merits of Communist and Western societies. "Ah, the redeeming social value," Marshall said.
The clerks were disappointed that the movie was such soft core.
Powell left after the first film.
The second movie was
Sexual Freedom in Denmark,
a feature documentary that had been released two years before. A very serious commentator explained the harmful effects of liberal Danish sexual attitudes, and showed a photograph of a penis in the last stages of syphilis. The dull narrative was punctuated by drawings of sexual and reproductive functions in color.
Blackmun sat stone-faced, ignoring the banter from Marshall and the clerks. Marshall turned to him when the lights came on as the projectionist changed reels. "Well, Harry, I didn't learn anything, how about you?"
Blushing, Blackmun joined the rest of the room in
a
hearty laugh.
The second reel had the first hard-breathing segment as two women made love. Then the film returned to its clinical, documentary style. Blackmun found it distasteful. The film's tone, if not its content, degraded women. That alone was enough to predispose him against all pornography.
Back in chambers, Powell's clerks remarked to him that
Vixen
had been disappointing. Two clerks confessed that they had seen all the movies of the director Russ Meyer— the master of sex-exploitation films. Yale Law School had even presented
a
Russ Meyer festival.
Powell's gaunt face was expressionless. He had never before seen such
a
film
,
he explained slowly. He had had no idea such movies were even made. He was shocked and disgusted. He did not wish to discuss it further.
Powell's clerks were amazed. There could not have been
a
milder movie for him to have seen. There had been nothing more than nudity, and facial and bodily expressions that suggested orgasm. How would he have reacted to the hard-core peep-show reels with nothing but explicit sex from beginning to end?
His clerks decided not to let any other clerks know of Powell's reactions. His vote would be crucial. He was
a
reasonable man. Perhaps when the shock had faded
a
bit, his initial distaste could be overcome.
As the spring wore on and the conference waited for the Chiefs circulation, the liberals were encouraged by two cases.
Douglas found
a
case that pointed up the danger of obscenity laws. A radical underground paper in Madison, Wisconsin, had been run out of business, and its publisher had been harassed with a two-year prison sentence and
a $2,000
fine for publishing "obscene" pictures and poems. The obscenity laws had been only a means for suppression of unpopular papers, Douglas contended. He was pleased when all the others agreed. They seemed a hair's breadth from at least establishing that printed material without illustrations could never be obscene
(Kois
v.
Wisconsin).
The Chief assigned a
per curiam
opinion to Rehnquist. Though striking down the conviction, Rehnquist stopped short of where the others were willing to go. He did not write that purely textual material could never be obscene.
Douglas's second victory of the spring came in a case in which the movie
Carmen Baby,
a loose contemporary adaptation of Bizet's opera, had been declared obscene. The female lead's body had been displayed on an outdoor movie screen in Richland, Washington, and had been visible to neighborhood children
(Rabe
v.
Washington).
Douglas argued that the movie would not be obscene if shown indoors, and since the statute said nothing about location, it was too vague a factor to have forewarned the theater manager. Pleased that all his colleagues except Rehnquist and the Chief agreed, Douglas assigned himself the opinion. He had never authored an opinion that accepted a definition of obscenity, however, and chose to write this one as a
per curiam,
so that it would be anonymous.
Douglas was a bit surprised when the Chief filed a two-paragraph concurrence, "a little snapper." If the law in question had explicitly required that certain movies not be exhibited to unwilling viewers and children, it would have been constitutional, the Chief wrote. Douglas took some consol
ation that at least Burger was th
inking about the distinction between public and private exhibition. Certainly that would be a factor in, any extension of the
Stanley
privacy doctrine.