Stewart was visibly distressed. This could make the Chief more intractable.
In any event, they told each other, the Chief's
litt
le visit had changed things. Their small intrigue, or what remained of it, was no more. Before the Chief put a more sinister interpretation on the meeting than was warranted, they had to do something, and at once. They had to lay out their demands clearly.
Stewart said maybe they
could turn the incident to their
advantage. The Chief's discovery had given their convocation legitimacy. Burger would be expecting them to come to him with suggestions. It was important to find a way to present their demands with the force but not the appearance of an ultimatum.
With Stewart orchestrating, they singled out the necessary modifications. It boiled down to some changes in wording and the core functions problem.
"Well, Potter," White remarked, "I'm going home. You go tell him."
Everyone laughed.
"I'm not going by myself," Stewart said to more laughter.
"Oh yes," White replied. Stewart was definitely the man for the job. Given his close relationship with the Chief, he would be most effective.
After some more moments of teasing, White agreed to go with Stewart and Marshall. They walked down the hall to Burger's office.
The Chief greeted them. They outlined their suggestions.
It all sounds fine with me, the Chief responded, except the elimination of the core functions analysis.
But that was the biggest problem they had, Stewart said.
Well, the Chief replied, he preferred his core functions section, and he was going to keep it. In fact, this was the part of the opinion that offered the most explicit reason for why the President had to lose—an essential core function of the judiciary was pitted against a general need for confidentiality.
Stewart could see that the Chief was growing increasingly adamant. Instead of debating it right now, Stewart suggested that perhaps he should go back to his office and draft an alternative subsection C along the lines that he and the others had been talking about. He would have it ready for the Chiefs consideration by Monday.
The Chief had little choice but to agree. He would look over Stewart's proposal.
After the three Justices left, the Chief vowed to his clerks that he would hold his ground. He could see that Stewart was the leader. His suggestions were the most sweeping and unacceptable; Stewart was not going to carry it off. No way, the Chief said.
Back in his chambers, Stewart got out his uncirculated version of the privilege section. Brennan, Marshall and Powell had already approved it.
The fault in the Chiefs reasoning lay in his effort to balance the President's interests against those of the courts. On one side, the Chief put the Article II powers of the President, which he said contained executive privilege. On the other side of the scale, the Chief put the Article III power of the courts. Since there was a specific demonstrated need for evidence in a criminal trial, the weight was on the Judiciary's side of the scale. Burger's conclusion in this case was that there was an imbalance. Little or nothing of weight on Nixon's side, and great weight on the Court's.
Stewart was opposed to creating new constitutional concepts such as core functions, but he had other important problems with this section as well. The definition of executive core functions was too broad and too vague. The term was an open door for a defiant reinterpretation by the President. And the definition of judicial core functions was apologetic. The judicial interest seemed manufactured. The Chief's opinion smacked of judicial legislation, as if the Court were conjuring new constitutional grounds for compelling the production of evidence as a special indulgence for fellow judges. Burger had dismissed Stewart's constitutional due process basis for the need for evidence in a footnote rather than in the text.
Also, Burger's effort to balance the needs of one branch of the federal government against the interests of another, raised the separation-of-powers question. Since such questions were generally left to the head of the affected branch rather than the courts, the Chief was simply asking for trouble.
Perhaps there was an easy way of handling this, Stewart thought. The Chief had balanced the needs of the President against those of the Court. Why not balance them against the Constitution? The Fifth and Sixth Amendments guaranteed due process and a fair trial with all the evidence. Taking some language from the memos of Douglas and White to develop a constitutional foundation for a subpoena, Stewart wrote that "the needs of due process of law in the fair administration of criminal justice" required the evidence. This line of argument would force Nixon to pit his claims against the Bill of Rights, the commitment to the rule of law, and the concept of due process.
The case came down not just to the question of a subpoena, the courts' technical requirement, but to the future of the constitutional system. The Chief's version missed the central point, dismissing it in footnote
1
6. The central feature of Burger's section, four pages in his draft, was two long citations from twenty-year-old civil cases (C.
& S. Air Lines v. Waterman Steamship Corp.
and
U.S.
v.
Rey
nolds).
Stewart thought the Chief's draft. reflected an obsession with the technical administration of justice and an utter lack of concern about fundamental constitutional questions.
Now that he had his foundation, Stewart began tinkering with both drafts, trying to develop an alternative that would change the thrust of the opinion but least challenge the Chief. He kept the Chief's first two paragraphs, and the next long paragraph except for the last sentence, which said the courts must have standards and procedures to ensure that the "legitimate confidentiality" of the executive is preserved. That sentence had originally come from Powell's pre-argument memo. Stewart then substituted a new line of reasoning for the Chief's core functions analysis. He wrote seven paragraphs in place of the Chief's final four, keeping only Burger's last sentence, which summarized the decision Stewart had his clerks come in on Sunday, July
21,
to type the new version, twelve pages, triple-spaced.
Early Monday morning, July
22,
Stewart went over the draft. He was satisfied that it gave the tapes subpoena a firm constitutional basis while giving executive privilege a very limited constitutional status. He then went to White and Marshall and went over it with them in detail. They agreed that they would join the Chief only if he accepted Stewart's substitute. Afterward, Stewart sent a copy to the Chief. That still left four Justices out of the picture— Douglas, Brennan, Blackmun and Powell.
Stewart decided to make sure that everyone understood they were on a one-way street; there was no turning around. He wrote:
re
: Nixon cases
memorandum to
: Mr. Justice Douglas Mr. Justice Brennan Mr. Justice Blackmun Mr. Justice Powell
Byron, Thurgood, and I were here in the building on Saturday afternoon when the printed draft of the tentative proposed opinion was circulated. After individually going over the circulation, we collected our joint and several specific suggestions and met with the Chief Justice in order to convey these suggestions to him.
. . . our joint suggestions were too extensive to be drafted on Saturday afternoon, and I was accordingly delegated to try my hand at a draft over the weekend. The enclosed draft embodies the views of Byron, Thurgood, and me, and we have submitted it to the Chief Justice this morning.
As of now, Byron, Thurgood, and I are prepared to join the proposed opinion, if the recasting of [the section] is acceptable to the Chief Justice
...
At this late stage it seems essential to me that there be full intramural communication in the interest of a cooperative effort, and it is for this reason that I send you this memorandum bringing you up to date so far as I am concerned.
P.S.
Copies to: The Chief Justice
Mr. Justice White
Mr. Justice Marshall P.S. As you will observe, the enclosed draft borrows generously from the draft of the Chief Justice as well as Lewis Powell's earlier memorandum.
Blackmun was pleased to see someone stand up to the Chief. Stewart's proposal was far superior, if for no other reason than the weight and authority of the language. Blackmun made it known that he was now prepared to join if the substitution were made.
Powell also found Stewart's version preferable and gave his tentative approval. But he was not deluded. Very little had been taken from his early memo.
Brennan flew in from Nantucket later that afternoon and read the proposal. Though he thought it overly generous in its use of the Chief
’
s language, there were no apparent major changes from the first version he had approved. He quickly called Stewart to say that he agreed strongly that the substitution was essential.
Douglas was scheduled to return from Goose Prairie that afternoon. The Chief sent a messenger to the airport to give Douglas a copy of the full draft he had circulated two days earlier. If Douglas ratified his version, it could puncture the counterdraft movement. Brennan, however, made sure that a copy of Stewart's proposal was also at the airport. He also took the precaution of so
unding out Doug
las before the Chief could get to him. Douglas agreed that the substitution should be made. That was seven votes, according to Brennan's count. The Chief was the only holdout to his own opinion.
Burger was exhausted. In addition to closing a Court term and attending his official functions, he had worked for more than two straight weeks without a day off. Burger felt the others had been merciless. And Stewart's memo calling for future "full intramural communication" was a joke, after the way he had operated behind his back for weeks. This was all particularly ironic given the Saturday meeting. The Chief didn't think the little gathering in Stewart's chambers he had wandered into on Saturday was in the spirit of "full intramural communication." Each of them had taken a section of his draft and chewed it to bits. If he had written only an eighth of the opinion, he too could have fussed over every word and each comma.
But w
hat would the others do? The Chief had talked to some of them. All, to one degree or another, seemed sympathetic to Stewart's proposal. Burger felt he had been sandbagged; he needed time to consider his options. He dashed off a quick "Personal" memo to the conference.
Potter's memo of July
22, 1974,
enclosing a revision of Part "C" prompts me to assure you that I will work on it promptly with the hope to accommodate those who wish to get away this week.
The two versions can be accommodated and harmonized and, indeed, I do not assume it was intended that I cast aside several weeks work and take this circulation as a total substitute.
I will have a new draft of Part "C" along as soon as possible. I take it for granted voting will be deferred until the revised opinion is recirculated.
Once again, Brennan saw, Burger had not even understood the vast difference between the two approaches. The two simply could not be "accommodated and harmonized" as the Chief had proposed. Any attempt by the Chief to accomplish that would inevitably result in another half-baked, paste-up job.
At least the Chief finally perceived that he was up against the wall. For Burger to plead that any vote be deferred meant that they were gaining some ground.
Burger knew that he faced a tough choice. There was no "give" in Stewart's posture, and Stewart seemed to have lined up all the others. Burger read through the alternative drafts. They were really two different ways of saying the same thing; the approaches were different but the bottom line was the same. The President would have to turn over his tapes. Whichever version they used would not make any difference to history or constitutional law. Burger was sure his version was better, but the others thought differently. What was the big deal? It came down to three pages out of a thirty-page opinion. All of them, living day and night with the case for weeks, had become wrapped up in each word and phrase. Did the difference have any substance? Burger could find none. It would all seem silly in a few weeks. But the Chief knew that making concessions was part of holding the Court together. The main thing was to get the opinion delivered. He wanted it unanimous. They were on the final leg. The only thing holding them up seemed to be this section. Stewart had left the first two paragraphs the same. That was settled. The Chief then took Stewart's next two paragraphs about the rule of law and compressed them, shifting some of the sentences around, dropping others.
Next, Stewart had reduced the Chief
’
s citation of one case to a passing reference. But, of course, Stewart had dissented in that case. The Chief decided to restore the full citation
(Branzburg
v.
Hayes).