fair to punish them for it by involving them in any city-suburb desegregation scheme.
But Burger wanted this opinion to be precisely right. One of his clerks worked on it for several months, under closer supervision than usual. One day during its preparation, the Chief had all his clerks to lunch in the Ladies Dining Room. The Chief treated the lunch like a seminar and he talked freely. The discussion touched on the busing case, and somehow the mention of blacks in the city triggered a recollection.
Why, just recently, the Chief remarked, he had recommended to a fellow trustee at the Smithsonian Institution that unemployed blacks be trained as gardeners to work on the Mall between the Capitol and the monument grounds. Blacks would make talented gardeners, he said. They have such a great sense of color.
The subject somehow shifted to Jews. Unlike blacks, they can get mortgages, the Chief said, because Jews are generally more able and successful and trustworthy.
Oblivious to the startled glances of his clerks, the Chief turned to the subject of women. Women should not be allowed to serve as judges in rape trials, he said. They are too emotional, and incapable of fair judgment. Women judges greatly increased an accused rapist's chances of conviction.
Burger's draft in the Detroit case was finally completed in April, and circulated to the Court. Powell read it carefully. As much as Powell wanted to limit future busing, Burger had gone too far. The Chief's draft had totally foreclosed the possibility of
any
city-suburban school busing.
Powell was distressed also at the inadequate research and drafting. "If an associate in my law firm had done this," Powell told a clerk, "I'd fire him."
Stewart, too, was upset with the draft. He still wanted to stick to his basic opposition to city-suburban busing, but he found it difficult to desert the black parents who had struggled so long for equal educational opportunity for their children. Nor did he want to rule out totally any future possibility of city-suburb desegregation.
Blackmun and Rehnquist were also unhappy with the Chief's draft; all four members of Burger's majority showed no inclination to join.
Word of the universal unhappiness with the Chief's draft heartened Marshall. He had been sick about the conference vote. The decision would be the first major cutback in desegregation remedies by the Court since he had argued the
Brown
case nearly twenty years before. But Burger's draft was appalling. It was incredible, the lengths to which the Chief went to distort the facts of the case. Burger's draft claimed that the lower court had tried to use strict racial balancing of schools. In fact, the district court had done nothing more or less than Judge McMillan had done in the Charlotte case.
The majority opinion implied that local school board action had not segregated the schools. Marshall knew that to be untrue. The majority indicated also that a city-suburb plan would result in massive busing. Marshall knew that that too was a misinterpretation. He saw little hope, however, that the liberals could pull this one out. So he decided it was time to let loose. He authorized his clerk to prepare a sharp dissent. The majority was no longer concerned about the education of black children in a segregated urban school system. Its concern now was the convenience of white suburban children.
Stewart and Powell got together to discuss their problems with the Chief's draft. The problem, once again, would be to get the Chief to bow to the weight of the Court's center.
Powell suggested drafting
a
"ghost" opinion that they would gradually try to force on the Chief, piece by piece. Stewart agreed. Burger was disturbed at the obvious attempt to manipulate him, but he finally capitulated on the main issue. His opinion would not foreclose the possibility of city-suburban school busing in future cases, if a direct constitutional violation could be proven in both the city and suburbs.
Stewart then agreed to join. But he also prepared
a
concurring opinion, going further than the Chief. If state officials were involved in a discriminatory act, such as housing or zoning laws which had led to segregated school systems, he would support city-suburb busing.
Stewart's obvious attempt—as the fifth and crucial vote —to set the limits of the opinion irritated Burger even more.
Marshall continued to hold out. His dissents were not the kind to win votes, but they had their emotional impact
Stewart had never publicly voted against school desegregation in a major case. Marshall hoped against hope that he could reach Stewart. Time and the Chief were his only allies. As Stewart struggled with the Chief throughout the term, Marshall looked for any sign that Stewart's frustration might make him reconsider his Detroit vote. If only he would agree at least to send the case back for further fact finding. Then, if the parents could show illegal acts on both sides of the city line, the revised Burger draft would permit city-suburban busing there. But Stewart would not budge. And Marshall would not pull a Hugo Black and keep the opinion from coming down altogether, no matter how strongly he felt. But he waited until the end of the year before letting it be announced.
Near the end of the previous term, on Saturday, May
12, 1973,
less than two weeks after Nixon's top aid
es, H. R. Haldeman and John Ehrli
chman, resigned because of the Watergate scandal, the Chief went to his annual reunion with his former law clerks. More than forty of them were expected at the black-tie, stag dinner in the ornate East and West Conference rooms. The Chief was edgy and tired as usual at the end of a Court term. But he loved these gatherings and he loosened up with a glass of sherry followed by a glass of white wine. Each of the clerks had paid about forty dollars for the dinner and a gift for the Chief. Essentially it was an event to remind themselves and their friends and colleagues that they had been part of the secret workings of the Court, that they had served the Chief Justice of the United States.
Some of the Chief's old Court of Appeals clerks knew him well and truly liked him. The recent clerks, who had seen Burger only in the somber and pressured atmosphere of the Supreme Court, were inclined to be less charitable toward him. Several took a few stiff drinks to get them through the evening. As the Chief circulated before dinner, he often forgot their names, much to everybody's embarrassment.
The former clerks had banded together in a group calling itself the "WEB Fete Society" and had planned an elaborate menu.* Six different wines, one for each course, had been carefully chosen, all in consultation with the Chief, a lifelong member of an international wine tasting society. Shortly after
7
p.m
. the group—all white, all male, well-scrubbed and ill at ease in dinner jackets—ambled into the West Conference Room for dinner. There was no head table. An empty seat was left at each table so the Chief could move from table to table with each course, talking about whatever popped into his head—the wine, the building, the case load, travel.
After nearly three hours, the waiters cleared the tables and closed the doors behind them. A toast was proposed to the Chief Justice of the United States. As the highlight of the evening, the Chief had agreed to take questions and give his "family" his candid views.
Burger didn't have to remind them that he was speaking off the record. They all knew he considered every word he uttered confidential. They also were aware they would get nowhere with hard questions. The city was ablaze with Watergate, but the clerks, rising from their seats to ask their questions, avoided the subject.
The Chief sat as each question was asked. Then, standing, he wandered about each topic for as much as ten minutes in a blizzard of free association.
At last someone asked a direct Watergate question: Would the upcoming Senate hearings and publicity prejudice a fair trial later?
The Chief bristled and started to skirt the issue, but suddenly he changed his tone. It all had to be put in historical perspective, he said. Nixon had been elected to change some things. That was his mandate. Watergate was
* The menu listed the following
wines and brandy:
Zeltinger Riesling
1970
Sherry Dry Sack
Muscadet
1970
Sevre et
Main
e Beau Soleil
Chateauneuf-du-Pape
1971
B&G Margaux
1966
B&G Courvoisier V.S.O.P.
The food included:
Hors d'Oeuvres
Double Consomme
au Sherry
Striped Bass
Champagne
Sauce
Parsleyed Potatoes
Entrements
Loin of Beef Sauce Be
arnaise
Asparagus au Beurre
Assorted Cheese
ll
e de France Bread
Demitasse
a political battle, a way for certain political elements to do what they had failed to accomplish in the
1972
election. The President was doing what he was elected to do. Now, the news media were on a witch-hunt trying to tie the actions of his aides to the President himself. The newspapers had become character assassins, the Chief declared. All the innuendo, distortion, hearsay and sensational headlines were vindictive.
Burger's defense of Nixon, after so much evidence and so many resignations, startled some of the clerks. The Chief seemed to view Watergate in personal terms, as if the legitimacy of his own appointment, his own mandate, hinged on keeping Nixon free from the taint. "Apart from the morality," the Chief concluded,
"I
don't see what they did wrong."
The damaging news from the Senate Watergate hearings blared forth day after day from a portable black-and-white television set perched on a table in Stewart's outer office. Clerks, messengers and secretaries clustered around the set. Occasionally, another Justice would stop by to savor or deplore the latest revelation. Marshall, a frequent visitor, became the informal master of ceremonies and provided a running commentary. When White House counsel John Dean charged that Nixon himself was involved, Marshall shouted gleefully, "Right on, brother Dean." Falling into his stylized Amos-and-Andy routine, Marshall made it clear that he felt "Brother Dean" was telling the truth. "Dat de way it wuz, sho' wuz," Marshall declared. Nixon's defenders, on the other hand, were greeted with calls of "You lie, you lie."
Most of the Justices followed the news with fascination, concern and some detachment. They might well get a Watergate-related case; they might be required to rule on some legal question such as pre
-
trial publicity, or attorney-client privilege. But for now Watergate was a problem for politicians, not for Justices.
The television in Stewart's outer office was on as usual on Monday, July
16,
when the Senate committee announced a surprise witness. The clerks bunched around the set had never heard of Alexander Butterfield. His testimony was shocking. Nixon had secretly taped his White House meetings and telephone conversations.
Archibald Cox, the special prosecutor whom Nixon had been forced to appoint to investigate Watergate, immediately subpoenaed the tape recordings of nine Nixon-Dean meetings. The White House asked U.S. District Court Judge John J. Sirica to quash the subpoena on the grounds of executive privilege. Though it was often claimed by Presidents, the Court had never defined the scope of such privilege or even stated explicitly that it existed.
Sirica refused to quash the subpoena, and Nixon appealed the ruling. Anticipating that the case would soon be in the Supreme Court, White House spokesman
Ron Zieg
ler said only that the President would obey a "definitive" decision by the Court
At a pre-term briefing and cocktail party for new clerks in September, the Watergate tapes case was the principal topic of conversation: what did Nixon mean by "definitive"?
The Chief began with a routine welcoming speech, but quickly moved to Watergate. He said it was likely that the Court would get the tapes case. That would pose extraordinary problems, and the foremost among them would be security. Historically, outsiders had treated the Court's deliberations as sacrosanct. This time, however, reporters would be desperate for stories; they would use every trick. Burn bags, clean desks, and locked files would be necessary. The Chief then introduced Justice Stewart, to describe the perils of dealing with reporters. Stiff and awkward, Stewart gave a mercifully short talk. The clerks should not talk to reporters, he said, and they should be careful in dealing with them at all.
Marshall missed the session, but later got a full report from his clerks. The Chief had made an ass of himself again, Marshall concluded. The clerks told him that the Chief had put an absolute gag on all conversation with anyone. "But if I don't tell Cissy what's going on in this one, she'll kill me," Marshall said. He told his clerks it was up to each to decide whether to discuss the case with his wife.
On October
12,
just into the second week of the Supreme Court term, the Court of Appeals upheld Judge Sirica
5
to
2.
Midnight,
Friday, October
19,
was the deadline for the President to file an appeal to the Supreme Court. Reporters and TV camera crews were massed outside the Court anticipating the arrival of the President's lawyers. A lawyer getting out of his car was engulfed by reporters who thought, incorrectly, that he was there on behalf of the President.