The clerks and Brennan examined the paragraph. It made no sense. Brennan concluded that it was just another of the Chiefs niggling and arbitrary changes, made perhaps only to prove that he had read the draft. He was also suspicious of the Chiefs timing. Burger knew Brennan left at
4:30.
Brennan resented the Chief's apparent insensitivity to his wife's illness, but he was determined not to be provoked into matching the Chief's pettiness. Swallowing his resentment, he told the Chief that he would be happy to make the addition. Then he left the Court wondering: Why did he still care?
At the hospital, Douglas was impatient. Each day, he spent hours in arduous physical therapy for his arm and leg. The paralysis in the leg showed some signs of improvement; that in the arm did not. Once, he took several steps with a leg brace. But he could not, or would not, walk outside the therapy room. For Douglas, who had always overcome his problems through sheer determination, the frustration was excruciating. As a child, he had conquered polio after the doctors had-said he would never walk again. He had missed most of the
1949
term when a horse fell on him and cracked twenty-three of his ribs and punctured a lung. But, as he later joked, the horse died and he lived.
Douglas's secretaries and clerks visited daily, and he dictated to them. But with his left arm imm
obilized, the difficulty he had
turning pages slowed him immensely. As he realized that his body no longer responded to his mind, he became increasingly confused and depressed. His doctors feared that he had lost his drive to walk again. He would drift off, shifting from one subject to the next. Now he concluded that it was the hospital and not his illness that was the barrier. He had to get out.
Blackmun stopped by. Douglas pleaded, only half joking, asking Blackmun to become his guardian: "Will you be my
best friend*
and swear out a writ to get me out of the place?" Finally, he announced to one of his secretaries and his messenger, Datcher, that he was going to escape. The doctors got wind of the plan and stopped it. But Douglas persisted. The doctors at last agreed to let him spend one night at home. An overnight pass was granted for Wednesday, March
19.
Once out of the hospital, Douglas ordered Datcher to drive him to the Court. He arrived about
5:30
p.m
. and was wheeled to his desk. He had been away seventy-eight
* A variant of the usual term
next friend,
meaning guardian.
days. Working there for several hours was taxing. His wife, Cathy, called, upset. The overnight pass was so he could come
home,
not
work,
she said. He was in a good mood, and said he would be there shortly.
The following day, Douglas refused to check back into the hospital. It was not unexpected. The doctors got him to agree to come in at least three times a week for physical therapy.
Reporters saw Douglas around the Court and asked Barrett McGurn about the sling on his left arm. Douglas wanted the press office to say that his arm had been injured in his "fall," as Douglas referred to his stroke.
McGurn consulted with the Chief. Burger didn't want to dispute Douglas; he told McGurn to issue the misstatement about the "fall" in Douglas's name, rather than as a statement from the Court. No more information about Douglas was to be given out, the Chief ordered. To make Douglas's return easier, Burger had the Court carpenter build a ramp so his wheelchair could be rolled up to the back of the elevated bench.
On Monday, March
24,
Douglas, drawn and pale, was wheeled in for oral argument. His eyes had a haunted, wild look. At the afternoon session, he had to leave in the middle because of intense pain in his left side. The next morning, Douglas called reporters to h
is office shortly before the 10
a.m
. oral argument began. Sitting at his cluttered desk, he tried to appear casual.
A reporter asked what he was going to do.
Douglas said he was going to listen to the tapes of all the January and February cases. He would be able to cast his vote in each one.
Had he considered resigning?
"Never entered my mind," Douglas said.
Was he staying on, waiting for a Democratic President to replace Gerald Ford, so that Ford would not name his successor?
"That is not a factor in any of my calculations," he stuttered.
When he was asked how he felt, Douglas was more frank; "I have been through a considerable ordeal; there is not the same energy I had beforehand."
Slurring his words, he conceded that he was walking only in therapy sessions at the hospital, but added: "Walking has very little to do with the work of the Court." He maintained that he would walk soon, however, and invited the reporters to go hiking with him the next month.
Had he left Walter Reed the week before without his doctor's permission? one reporter asked. Douglas just sat with his pale, glassy-blue eyes staring at his desk. Someone mercifully cut short the embarrassing silence with another question.
When the Chief got word of Douglas's pathetic performance, he was upset. Far from settling anything, Douglas's press conference on
ly raised more questions about h
is health.
Burger believed Douglas was developing the paranoid qualities of many stroke victims. Douglas complained that there were plots to kill him and to remove him from the bench. Once he was wheeled into the Chiefs chambers and maintained it was his. Rumors circulated among the staff that Douglas thought he was the Chief Justice. Douglas could sit in one position comfortably for only a short period, and he often fell asleep at oral arguments. When Court sessions were gaveled to a close, the other Justices disappeared quickly behind the red curtains. The audience was left standing, their eyes naturally on Douglas, who sat alone waiting to be helped out.
After working part-time at the Court for about three weeks, Douglas acknowledged that he had not been ready to return. On April
10,
he checked back into Walter Reed with a bad cold. The Court still had the problem of a disabled Justice, and there was no clue to the future, only the certainty of more uncertainty.
Brennan was at his desk one afternoon when Blackmun called with a question about a sticky legal technicality. Did Brennan have any ideas?
"Harry, I'll be right over," Brennan said. Dropping his own work, he hurried down the hall to Blackmun's chambers.
A clerk passing by Blackmun's office observed the two Justices a short time later. Blackmun was at his desk and Brennan stood behind him, one arm on Blackmun's shoulder, the other extended to some memo or law book. It was part of Brennan's "cultivation of Harry project," as one clerk called it.
Brennan thought that Blackmun was continuing to drift away, not only from the Chiefs influence but from his own conservatism, and he was determined to encourage it. He had no hope that Blackmun would ever be a regular liberal vote. But Blackmun at least took each case as it came, with a
minimum
of prejudice. Keenly aware that Blackmun was always fearful that his language in opinions might someday come back to haunt him or the Court, Brennan showed
him
how narrow decisions were possible in several cases.
The clerks in the Chief's chambers joked that after Blackmun circulated certain opinions, Brennan would take him to lunch out of gratitude. Once, the Chiefs clerks were sure that Brennan had joined a Blackmun draft even before he had read it. Even on the tax cases, which Brennan hated, he gave extra consideration to them because they were Blackmun's area of expertise. "This is a tax case. Deny." That was Brennan's normal reaction to a cert request in a tax case. But when Blackmun circulated a tax opinion, Brennan responded with a florid note, praising the work and scholarship. On a major securities case
(Blue Chip Stamps v. Manor Drug Stores)
Blackmun had charged that the majority opinion "graves into stone" with "three blunt chisels" certain arbitrary principles, exhibiting "a preternatural solicitousness for corporate well-being." Brennan readily joined the overwritten dissent
In
another case, the question was whether the city of Chattanooga, Tennessee, could prohibit the production of the controversial rock musical
Hair
in its civic auditorium
(Southeastern Promotions, Ltd.
v.
Conrad).
Onstage nudity, simulated sex, four-letter words, pro-drug and antiwar themes marked it as a distinctively
1960s
protest. Religious and historical figures were mocked, and interracial love was hailed.
One of the street people in the play was called Burger. The insult was not intentional, since the Chief had not been on the Court when the script was written in
1967.
Nonetheless, no play could have been more designed to offend the Chief.
Burger wanted to uphold a decision not to allow the play in a city-owned auditorium. He assumed that his five-man majority in the
1973
obscenity cases, including Blackmun, would stand firm. But Brennan felt that, because the city had banned the play before seeing it or even its script, the question was really one of prior restraint. He bombarded Blackmun with memos and other material and spoke with him at length about the application of prior-restraint law to the case. The issue was not the right of the local community to define or ban obscenity, but the banning of something
before
it appeared. This was a denial of the very sort of hearing that in the
1973
obscenity cases Blackmun had insisted each pornographer be given before anything could be declared obscene.
Blackmun finally voted with Brennan at conference, making Brennan the senior member of the majority present. Brennan assigned the case to Blackmun, and Blackmun agreed to undertake the opinion on the condition that he would not be breaking new ground. He wrote an odd opinion, saying that such a play could be banned only if there was a "clear and present danger." Brennan was so anxious to nail down Blackmun's vote that he joined before talking with his clerks. What was the possible "clear and present danger"? they asked. Nudity? Rape? Brennan got Blackmun to drop the phrase.
Burger was aghast. He remarked several times to his clerks that he didn't understand what Blackmun was doing. It had to be the influence of Stewart and Brennan. The Chief gave no credit to Blackmun.
Burger was also having more and more trouble with Powell, who seemed to constantly flirt with the Court's left wing. At times Burger found Powell unreachable, willing to listen but seemingly unable to understand his points. When the conference considered a Jacksonville, Florida, law banning the showing of films with any nudity at drive-in movie theaters, Powell voted to uphold the ban
(Erznoz
nik
v.
City of Jacksonville).
Despite some nudity the movie,
Class of '74,
rated R, was not obscene in Powell's view, but the local law regulating its showing was a reasonable and permissible exercise of police power. Not only could the movie screen be seen from nearby highways, but also from a church parking lot.
The conference was deadlocked
4
to
4,
with Douglas back in the hospital. After the conference, Powell's clerks besieged him. Even his most conservative clerk argued that since the movie was not obscene, its showing at the drive-in was protected by the First Amendment. Ordinarily his vote ended the chambers debate, but this time he seemed to encourage it, even though he had already voted. His clerks knew which arguments to push. It was really a matter of balancing the privacy interests of those offended by the drive-in with the First Amendment rights of the theater owner and customers. Could not the passersby readily avert their eyes?
Powell disagreed. Moreover, the case just wasn't that important.
But the principle was, the clerks insisted. Clearly the government could not regulate expression simply because it was offensive to the majority. Could a billboard erected by an unpopular political candidate be banned because it was offensive to a majority and could be seen from the street, or a church parking lot?
The clerks also raised the matter of economic consequences. They had come to realize, as they got to know Powell, that his business bias was even greater than it appeared to be in his final written opinions. The clerks called it "Lew's corporate dignity doctrine." He seemed convinced that business did little or no wrong. They joked that cert petitions in business cases might well be addressed, "Dear Lew."
Now in this case, they pointed out that a theater owner in a similar instance had had to spend nearly
$250,000
to construct a barrier to block the view. The result was an unfair burden, almost a tax, on theater owners who wanted to show R-rated movies that were, after all, protected by the Constitution. It wasn't exactly the corporate dignity argument they were making, but a corporate survival argument.