Marshall called Brennan, who suggested a solution that would avert an embarrassing confrontation between the Court and the Executive Branch, and at the same time avoid overruling Douglas directly.
To protect himself against the possibility that Douglas might accuse him of unilaterally overriding another Justice, Marshall called each of the other seven Justices to secure their agreement. Then he asked his clerk to draft the complicated opinion. The clerk, who was avidly opposed to the war, and impatient with Marshall's timidity and inattention, refused. Marshall would have to write it himself, he said.
After struggling with a full opinion, Marshall gave up and drafted a simple order. He filed the nine paragraphs six hours later. Since the district court order had not yet gone into effect, the Pentagon did not miss any of its scheduled bombing sorties for the day.
A few days later, Douglas released a bitter dissent, openly rejecting Marshall's circumvention of his order and challenging the use of the telephone to poll the conference. In addition to undermining an exchange of views, it was in violation of the six-member-quorum rule, he charged.
I do not speak of social propriety. It is a matter of law and order involving high principles
...
A Gallup poll type of inquiry of widely scattered Justices is, I think, a subversion of the regime under which I thought we lived
...
What members of the Court told Brother Marshall to do on August
4, 1973,
does not, with all respect, conform with our ground rules.
Douglas was even less gracious in private. He referred to Marshall as "spaghetti spine."
Rehnquist slipped into the conference room one day and took his seat.
He pulled a magazine from his stack of papers. The
National Lampoon,
a humor magazine, had just released its February issue. The centerfold was entitled "Amicae Curiae"—Friends of the Court—and it depicted, in a color cartoon, all nine of the Justices engaged in a variety of sexual activity.
The Chief, naked except for holster and pistol, was on the floor licking the boot of an otherwise naked young woman.
Brennan was standing in front of two very young girls holding his robe open.
Stewart was measuring the throat of a young woman with a ruler, apparently in preparation for oral sex.
Rehnquist, clad in a woman's bra and red garter belt, was parading before the others cracking a black whip.
White, a blindfold partially covering his glasses, was apparently engaged in some taxing sexual activity, though the cartoon did not make it clear what that activity was.
Powell was kneeling naked, his hands bound together, while a black woman in underwear marked "Exhibit A" flogged
him
.
Marshall stood by the side of the bench doing nothing but looking up at Douglas, who sat alone on the bench with a naked young boy at his side.
Blackmun was sodomizing a kangaroo.
Chuckling, Rehnquist passed the issue around the table. Most of them laughed. The Chief was angered both by the cartoon and the fact that it had been brought into conference.
Afterward, Marshall sent
a
clerk to buy extra copies for his college-age children.
Brennan proudly told his clerks that while every other Justice was portrayed engaging in some sexual activity,
he
was pictured protecting several young children by blocking their view with his robe.
His clerks decided that they owed it to
him
to explain "flashing."
Blackmun told his clerks how funny the centerfold was, especially the portion depicting Rehnquist "in drag." The only problem, Blackmun said, was that he couldn't figure out what he was supposed to be doing with the kangaroo.
The clerks drew straws to see who would tell him.
The previous year's obscenity decisions began to bear expected fruit as juries returned convictions in erratic and unpredictable patterns. The four obscenity dissenters— Brennan, Marshall, Douglas, and Stewart—continued to believe the Court should reverse such convictions, but despite their four votes they did not insist that each case be granted cert. Brennan knew they would lose and a formal decision would convert local obscenity convictions into national precedents, turn minor inequities into landmark losses. He preferred to let disparities exist in the lower courts without the Supreme Court adding its imprimatur. Instead, they regularly filed a boilerplate dissent from the cert denials. They would not push to take a case until a fifth vote to reverse a conviction seemed likely.
Powell was the most susceptible to being won over as far as Brennan was concerned. Brennan's clerks looked through the movie stills, magazines and books that poured into the Court, hoping to find one where a local jury had clearly gone too far—a case that would show the absurdity of letting local "community standards" prevail.
Each time Brennan found an outrageous conviction, he sent the material to Stewart, who would have the best sense of Powell's reaction. Generally, Stewart reviewed the exhibits on Saturdays so his secretary would not see them. But in no case had Powell gone along. He did not want to second-guess a local jury. Finally, Brennan found a case
(Jenkins
v.
Georgia)
that seemed a sure bet. A movie-house operator in Albany, Georgia, had been convicted and fined
$750
for showing the R-rated
film
Carnal Knowledge.
Here was a movie that was clearly not obscene. It was pure Hollywood establishment and had no explicit sex. The film had been directed by the highly regarded Mike Nichols, was on many critics' "Ten Best" lists, and actress Ann-Margaret had been nominated for an Oscar.
A screen was set up, and several Justices attended the Special showing. As the film progressed, there was little of the usual cackling,
running
commentary or leg slapping.
"I thought we were going to see a dirty movie," Marshall complained at the end of the movie. "The only thing obscene about this movie is that it is obscenely boring," said White. The Chief left early. He told his clerks the camera work and the lighting had been well done. Rehnquist said he liked the music.
At conference, all nine Justices were prepared to say
Carnal Knowledge
was not obscene and to reverse the conviction. But the four First Amendment liberals wanted the
Court to admit that the problem grew directly out of Burger's obscenity opinions of the previous year. The Chief wanted only to send a message to local jurisdictions that there were limits: clearly,
Carnal Knowledge
was not obscene. He did not want to pull back from his landmark opinion the year before. So he assigned Rehnquist the case along with another obscenity case
(Handing
v.
U.S.)
involving
The Illustrated Presidential Report of the Commission on Obscenity and Pornography.
Rehnquist would have to explain why
The Illustrated Report
was obscene and
Carnal Knowledge
was not.
When Rehnquist returned to chambers to work on the opinion, the job looked simple. The
Report
had sex acts explicitly displayed. The movie had only simulated sex. But as he reviewed the Chief's major obscenity opinion
(Miller)
from the year before, he recognized his dilemma. The Chief had written that material could be found obscene where the sexual acts were "actual or simulated," as long as the act itself was "patently offensive." Could not the simulated fellatio in
Carnal Knowledge,
even though not explicit, be "patently offensive"?
Rehnquist decided he would have to carefully reinterpret the Chief's obscenity opinion, and declare that only explicit displays could be ruled obscene by local juries. The others in the Chief's old majority signed on the opinion.
Brennan saw that they were back in the "Redrupping" business; the Court would deal with obscenity on a case-by-case basis. "It is clear," he wrote with some relish, "that as long as the [Chiefs] test remains in effect, one cannot say with certainty that material is obscene until at least five members of this Court
...
have pronounced it so." And he kept sniping about obscenity cases, claiming that the five-man majority allowed convictions to stand without even reviewing the material. Brennan spelled out his concerns in a series of published dissents.
White was irritated. Brennan was pushing too hard He, in fact, had reviewed the materials submitted to the Court. As far as White was concerned, the obscenity decisions of the year before worked perfectly. The Justices still had to review a few cases, but by and large, communities were enforcing their own standards.
The hardest-core pornogra
phy was available in major cities but not in small towns. White singled out one of Brennan's dissents: "One of the publications involved is
Sex Between Humans and Animals,"
he wrote. "Mr. Justice Brennan would apparently hold that the First Amendment prohibits government from denying consenting adults access to such materials, but I do not construe the First Amendment as preventing the States from prohibiting the distribution of a publication whose dominant theme is represented by repeated photographs of men and women performing sex acts with a variety of animals."
At the opening of the term, the press focused attention on the likelihood that the Burger Court might at last leave its imprint on the important race questions of the day. In mid-term the Court heard argument in their first reverse discrimination case
(DeFunis
v.
Odegaard)
which challenged the affirmative action programs designed to give minorities certain advantages. A white applicant to law school had been denied admission while blacks with lower test scores and grades had been admitted. Under the affirmative action program, a certain number of slots had been set aside for minority applicants. Since the applicant was white, he had no shot at them; he had been singled out because he was white, and that, he claimed, was racial discrimination.
At first, all nine Justices leaned toward holding that such fixed racial quotas were unconstitutional. Marshall considered special quotas an insult to minorities, but at the same time he knew better than anyone the difficulties posed by the remaining barriers for minorities in schools and in employment. Affirmative action programs—most of them only a few years old—would all be at stake. On the other hand, to uphold the fixed quota for minorities might create an unfortunate precedent which could be used eventually to exclude minorities.
At conference, several of the Justices indicated that they would not mind avoiding the issue by saying the case was moot; the law student had subsequently been admitted to the law school. The Court would have several more years before another reverse discrimination case worked its wa
y
up through the courts. In the meantime, affirmative action programs could continue to bring about more educational and employment equality. Stewart offered to write a
per curiam
declaring the case moot. Burger, Blackmun, Powell and Rehnquist agreed finally, but not before Douglas had first circulated an opinion ruling out virtually all affirmative action, withdrew it the next day, and then substituted a draft saying that race, as a factor in cultural background, could be taken into account in selecting candidates.
Even the liberals breathed a sigh of relief that the case was gone.* But there was another racial issue they could not avoid—busing. Powell had been pleased when the Court agreed to hear the Detroit busing case
(Milliken
v.
Bradley)
at the beginning of the term. He had been out of the Richmond case the term before because of his nineteen years of service on school boards.
The Detroit case, however, presented the same fundamental question that the Court had addressed in Richmond: could a federal judge order city-suburb school desegregation? Powell wanted to be the fifth vote to put a damper on such court-ordered busing. At conference, he had voted with the three other Nixon appointees and Stewart against the busing. Powell hoped the Chief would assign the majority opinion to him.
But it was also the Chief's first time in the majority on an important school desegregation case since the Charlotte decision. Burger had seen his work subverted there. After twenty years of post-Brown clarifications, he believed it was time for a definitive new direction. He took the opinion for himself. To Burger, the case wa
s simply a matter of establi
shing a fair and equitable remedy. The suburban school children and parents in Detroit's older suburbs had played no role in segregating Detroit's schools. It was un-
* On July
5, 1978,
the Court addressed virtually the same issues in the highly publicized case of
Regents
of
the University
of
California
v.
Bakke.
Its splintered decision held that rigid quotas for minorities in admissions programs were impermissible, but that race could be considered as one of many factors in admitting students. Typically, Powell was the only Justice on both sides. On one hand Powell provided a fifth vote for Burger, Stewart, Rehnquist and Stevens against rigid quotas; on the other, he was the fifth vote joining Brennan, White, Marshall and Blackmun permitting the consideration of race as one of several admission criteria in affirmative action programs.