Stewart indicated that he favored striking individual laws as they came up and, perhaps after a number of years, doing what Brennan proposed. It would be better for the dynamics of the law—a slow evolution and then a clearly logical ultimate step. Besides, Stewart was
certain
the Equal Rights Amendment would be ratified. That would relieve the Court of the burden. The responsibility really should be assumed by legislatures.
With Brennan continuing to press him for his vote, Stewart proposed a compromise. If Brennan would go back to his first draft opinion and simply strike the one law, Stewart would probably go along with his broad constitutional rule on the next sex discrimination case. But it was important that Brennan not publish the alternative draft without his vote. If that happened, Stewart would be on record against him and it would be more difficult for Stewart to join a similar opinion in a year or two. He would look inconsistent. Outsiders might question his sudden conversion.
Brennan perceived Stewart's offer as a "deal." He rejected it and decided to publish the alternative draft, even though he had a plurality of only four. Stewart concurred simply in the part striking the one law.
Brennan felt certain that he had come within an inch of authoring a landmark ruling that would have made the Equal Rights Amendment unnecessary. If either Earl Warren or Abe Fortas had still been on the Court, he lamented to his clerks, he would have won.
When Powell first arrived on the Court the previous year and voted with Burger in a particular case, Stewart asked why. "I thought I would follow the leadership of the Court," Powell had replied.
Stewart was dumbfounded. He decided he had better explain to his new colleague something about the realities of life at the Court. The leadership was not Burger. He was Chief Justice in name only. The leadership belonged to the Justices in the center, the swing votes, those who were neither doctrinaire liberals nor conservatives. It belonged to Stewart and White and Lewis Powell if he chose.
By his second term, Powell understood. The Chief provided no intellectual leadership. In fact, when it came to legal analysis, he was grossly inadequate.
Powell was writing a majority decision
(In
re Griffiths)
in which the question arose as to whether states could prohibit resident aliens from becoming members of the bar. A Dutch citizen, living in Connecticut, had challenged that state's citizenship requirement as a denial of equal protection under the Fourteenth Amendment. Powell thought it was a simple question of fundamental fairness. Resident aliens paid taxes, served in the armed forces and contributed to the country in various other ways. The Supreme Court permitted resident aliens to argue cases. Powell could see no basis for Connecticut's rule barring a whole class of people from practicing law.
As work on the opinion progressed, Burger came by for one of his frequent, unscheduled visits. He plopped down in a chair in Powell's office. Powell was annoyed at the interruption. Now he was at the Chiefs mercy. There was no telling what he would want to discuss, or how long he would stay. Often the visits took two hours out of Powell's afternoon. Powell joked that the Chief was giving open-ended discussion a bad name. He had tried to stop these visits. He had told his secretary that if the Chief called to say he was corning, she was to say that Justice Powell requested that he be allowed to come see the Chief instead, since protocol demanded that a junior Justice visit the senior. That way Powell could visit Burger and leave after a few minutes, pleading an appointment or pressing work. It had seemed a good idea. But the Chief had simply stopped calling ahead.
On this visit, Burger said he had been thinking about the Connecticut lawyer's case. Maybe they should change their votes. The Fourteenth Amendment was being overworked. Wasn't this a state question, something states were empowered to regulate? Lawyers were officers of the courts. Perhaps the Court had an obligation to protect the profession.
Powell was a bit confused. Exactly how, he asked the Chief, would keeping aliens out of the bar association protect the profession? Lawyers were already subject to sanctions or disbarment or even prosecution if they did something wrong.
Well, lawyers were not held in the esteem they merited, the Chief complained. Recent disclosures in the growing Watergate scandals regularly exposed unethical and illegal behavior by lawyers. The most newsworthy lawyer of the day was White House counsel John Dean, accused of covering up the Watergate break-in.
Powell politely asked what that had to do with an alien who wanted to practice law.
Burger seemed to think that aliens might somehow contaminate the legal profession. The Chief kept referring to the image of lawyers and how this would harm that image.
Powell recoiled from Burger's conclusion. Here was the head of the American judiciary lobbying a fellow Justice, a former head of the American Bar Association, to prevent aliens from practicing law.
Powell was determined to stick to his opinion. He was ultimately joined by everyone but the Chief and Rehnquist.
It was not just the Chiefs intellectual inadequacies or his inability to write coherent opinions that bothered PowelL
There was something overbearing and offensive about the Chief's style. Once, after apparently spending a long time reviewing the voluminous record in one case, Burger brought the record to conference. When Powell expressed his opinion, the Chief rebuked him. "Lewis," Burger said, "you can't possibly say that. If you'd read the record, as I have, you would know that is simply not the case." He then reached back for the record. "Here, Lewis, take the record and read it," he said, handing Powell the huge file.
Powell returned to his chambers sheepishly, blaming himself and his clerk for not having been more thorough. Guiltily he read the record only to find that the Chief had either misunderstood or misrepresented it. He ultimately concluded that the Chief's heavy
-
handedness could not be viewed as merely a superficial trait. At the first conference in June, the Justices met to review the status of all outstanding majority opinions in order to make sure all were in circulation. Traditionally, all majority drafts were to be sent out by June i, so there would be at least some chance that the Court could adjourn by the middle of the month.
Each Justice except Blackmun said that his majorities were in circulation or at the printer. Blackmun said that there was one case that he just couldn't get out. He had been working on it day and night, but he had been unable to complete it.
Burger showed no sympathy. As the others sat in silence, Burger chastised Blackmun.
"I really caught it at conference," Blackmun told his clerks after he returned to his chambers. He resolved to work even harder.
Powell's clerks, however, discovered that Burger also had a majority opinion outstanding. Once again, they raged to Powell about Burger's hypocrisy. For the first time, Powell did not defend the Chief.
The Chief's stunts on delaying his votes and on the assignments also irritated Powell. He had been too tolerant his first year. Now he was less indulgent about Burger's manipulations. Whatever the Chief's motives, the result was inexcusably sloppy.
Powell had also been initially skeptical about stories of Marshall's laziness and inattention. His disbelief had deepened a few days after he had circulated a thirty-two-page majority draft opinion ruling out a challenge to the use of property taxes for financing public education
(San Antonio
v.
Rodriguez).
It was a monumental case, billed as promising massive educational upgrading for poor children everywhere. Marshall, White, Brennan and Douglas felt that the property taxes had to be reallocated, to even out the expenditures in different areas. Otherwise, there would never be a way to ensure equal educational opportunities, a right they felt was guaranteed by the Constitution.
The other side argued that the Constitution did not require any such reallocation.
Powell's thin five-man majority depended on Stewart's crucial fifth vote. Stewart was unwilling to get the Court embroiled in another issue of such magnitude. If the Court were to get involved, it would precipitate hundreds of cases in the federal courts as their decisions had done in desegregating schools and requiring reapportionment to meet the "one man, one vote" standard.
Moreover, Stewart felt it struck at one of the foundations of a capitalist state. People accumulated wealth in order to spend it where they chose—on their children, in their own communities.
Marshall was unhappy with Stewart's position. He assigned one of his law clerks, among the best at the Court, to prepare a devastating legal analysis of the majority opinion. For months the clerk did nothing else. Marshall circulated the forty-page dissent, responding to each of Powell's arguments and to some not even offered. It was well-reasoned, even brilliant.
How, Powell asked his clerks, did Marshall turn out such a masterpiece so quickly?
The clerks were frank. Marshall's clerk was first rate, and Marshall had given
h
im
several months to write the opinion. Depending on whom you believed, Marshall himself had spent maybe fifteen minutes to an hour going over the draft.
Powell couldn't quite believe it. "Who is the Justice down there?" he asked rhetorically.
He finally decided to see for himself. Congratulating Marshall on his fine dissent, Powell asked him a question regarding one of the major issues. "Did I say that?" Marshall cracked, brushing the question aside. Powell was not sure Marshall even understood the question.
Powell also found White an enigma. Not a particularly likable man, not genial like Brennan, White was fiercel
y combative. He was especially in
timidating when he was struggling to hold a majority. Powell couldn't quite figure out what made White tick. His opinions, like his personality, were a constant puzzle.
Powell had a difficult time making up his mind on
a
Fourth Amendment search case that White was writing
(Almeida-Sanchez
v.
U.S.).
Powell had been counted as the tentative fifth vote in the conference majority of White, Burger, Blackmun and Rehnquist to uphold the search. Stewart, to whom Powell found himself growing closer, both personally and professionally, was dissenting with the liberals.
Federal immigration agents, acting as a roving border patrol, had stopped a car about twenty-five miles from the Mexican border in California to search for illegal aliens. The roving patrol was authorized by federal law to stop and search cars within
100
miles of the border. The agents searched the car and found no illegal aliens. But they did find
161
pounds of marijuana.
The driver of the car, convicted of illegally transporting drugs, appealed on the basis that his Fourth Amendment rights had been violated. The occupants of the car had given no consent for the search; the federal agents had no search warrant; and the agents acknowledged there was no probable cause to suspect that the particular car was carrying illegal aliens. The car, in fact, had been stopped on an east-west highway, not a north-south road that connected directly with the border.
White's draft argued that the case involved a border search: government agents were allowed to search people at the border without warrant, consent, or any probable cause. The roving patrol was an extension of the border search.
Powell promised one of his clerks that he would not join White's opinion until the clerk had prepared a memo arguing the other side.
Stewart had written in dissent that if the Fourth Amendment was going to mean anything, federal agents had to obtain consent or have some probable cause to conduct a search. If neither was required, Congress could effectively legislate the Fourth Amendment out of existence.
Powell didn't agree. Immigration agents were not the same as regular police. Powell also recognized that the growing, number of illegal aliens from Mexico was a major problem in the Southwest. He did not want to take another enforcement tool away from the government. He sent his join memo to White, without letting his clerk know. White now had his fifth vote.
Powell's clerk, feeling betrayed, complained heatedly. But Powell said it was late in the term and the decision could only wait so long. He was the Justice, and would make the final choice.
Re
-
examining White's draft, however, Powell found some troubling points. White had accepted Congress's determination that such a roving patrol search was reasonable: "Congress had long considered such inspections constitutionally permissible under the Fourth Amendment." The problem was that the Court, not the Congress, made the final rulings on what was constitutionally permissible under the Fourth Amendment. Powell decided that his clerk was right. There was no way to ignore the Fourth Amendment.
Perhaps there was some middle ground. Warrants obviously could not be required for each car search, but maybe there was a way to observe the spirit of the Fourth Amendment's warrant requirement. What if the border patrol were required to seek warrants for specified areas or roads for limited periods of time, say days or weeks? Powell settled on that as his compromise. But, since there had been no warrant in the particular case, he would join the Stewart dissent overturning the conviction and giving Stewart a majority. He would write his own concurrence. Powell notified White's chambers that he was switching sides.