Throughout most of the Court this section of the Chief's draft was read with a mixture of laughter and dismay. Who had ever heard of the Supreme Court deciding a major constitutional case on Rule
51?
Besides, an award of damages had no basis unless there was some specific constitutional violation.
Since Stewart was away that day, a few clerks gathered in his chambers to discuss the case. Within an hour, all the chambers except the Chief's and Rehnquist's were represented. The Chief was trying to screw the mentally ill, the clerks feared, and he just might succeed. With about fifty cases still to be resolved before the term closed in six weeks, the Justices would be busy with their own work. Burger might push this one through in the last-minute crush.
This was a fascist opinion, Joel Klein argued. The Chief, with his law-and-order mentality, had gone wild—anything to protect society, and to hell with individual rights. By stating that people could be confined for "significant antisocial acts," the Chief was up to something sinister. The others did not buy all of Klein's argument, but they thought something had to be done. They would have to mobilize. The central point on which the Justices would agree was that the Chief's draft did not reflect the conference discussion or, for that matter, the vote.
The first step was to insure that no Justice impulsively signed onto the Chief's draft. Burger had to be denied any momentum. One join and
a
bandwagon could follow. Next, a Justice would have to write a dissent to turn the Court around and create a majority for another point of view. The clerks felt strongly that a Court opinion had to emerge that gave mental patients constitutionally protected rights. Since few such cases were decided by the Court, this opinion would have an impact far beyond this one case. Ideally, someone from the center—Powell, Stewart, perhaps White—should write the opinion. Blackmun was also
a
possibility.
Since White and Blackmun were not prepared to establish such a right, the clerks hoped that Powell or Stewart would be willing to write it. Powell, however, had already had several bruising battles with the Chief. Klein thought his boss would probably join a dissent but would be reluctant to lead a charge. On the other hand, Stewart had suffered through a series of poor assignments from the Chief and had recently been making more than the usual number of pointed anti-Chief comments. His clerks felt he might be ready for battle.
The Stewart clerks agreed to make a strong case to their boss for an alternative opinion.
Klein went to try out the clerks' strategy on Brennan. It was important that Brennan not leap into the fray with
a
stinging dissent. Brennan's dissents rarely won the support of the Justices in the center. Clerks called it "killing it from the left." Brennan approved of the clerks' strategy and said he would not write anything. He would also try to keep Marshall and Douglas from writing at this point.
When Stewart returned to his chambers, his clerks were waiting to inform him that the Chief's circulation on
Donaldson
had arrived.
How does it look? Stewart asked.
"Disaster," one clerk replied. It was worse than expected.
Stewart took a copy. He was weary when he finished. It was, as usual, an untamed piece of work. Burger was straining to decide issues that didn't have to be resolved in this case, using it to write a treatise on law and psychiatry that would preclude the courts from a role in protecting those confined in mental institutions. The Chief had either misinterpreted or intentionally ignored the conference majority. There was a majority opposed to establishing, as the Fifth Circuit had done, a broad right to treatment, but there was certainly no majority ready to deny all protections for the mentally ill.
Stewart told his clerks that he agreed with them. Some response was necessary.
"You have to do this," one of Stewart's clerks said. His clerks told him the Chief's draft did not seem to have any backers. Stewart's clerks were his first constituency. Their appeals to use his place and his influence on the Court moved him more often than their legal arguments. He said that he would try.
Stewart knew who counted. Since the three liberals would be no problem, Stewart went first to see White. He asked White if he had seen the Chief
’
s draft yet.
"No," White said.
"Well, you better sit down before you do," Stewart said.
White agreed that the Chief
’
s draft was unacceptable. White had been the only Justice other than the Chief and Stewart to oppose the
$38,500
damage award, and he distrusted psychiatry as much as the Chief did, but locking up a person like Donaldson without good reason was repugnant, and the Court should clearly say so.
Stewart told White he was going to try a dissent.
White was noncommittal, but he emphasized that he did not want to uphold the damage award.
As was his practice, Stewart sent a short memo to the other Justices letting them know he would soon circulate a dissent. Stewart considered the memo a courtesy, but it would also discourage the others from signing onto the Chief's opinion before they saw his dissent.
The Chief was surprised when he received the memo. He did not think his position had been uncompromising. Why didn't Stewart first try to offer some suggestions? Why was he leaping in with a dissent? It just didn't make sense.
Stewart told his clerks that he wanted his dissent kept short. The key was simplicity. Since he did not want to write any new rules, one possibility struck him almost immediately. The Chief referred only to the "right to treatment." But Donaldson's lawyers had argued that he had "a right to be restored to liberty by treatment or else by release." This suggested a simpler focus; the issue was not treatment, but something more fundamental: liberty.
A ruling could be narrowly confined to Donaldson and others like him, persons who were not dangerous to others or to themselves and who were capable of surviving in society by themselves or with the help of friends or family. Such a person had a right to one thing—not treatment, but liberty. Moreover, ensuring liberty was the Court's traditional business.
Stewart's clerks went to work gleefully, buttressing the opinion with everything they could find favorable to Donaldson. Much of this had been suggested by Donaldson's lawyers, Ennis and Heineman. The dissent was laced with references to the "narrow" issue before the Court. It focused on "release," the liberty question, and referred to treatment only in a footnote. "A finding of 'mental illness,' " it stated, "cannot justify the extinguishment of personal liberty."
Yet, with all their care, Stewart's clerks could not resist addressing the Chief's apparent concern with those who are guilty of "significant antisocial acts," whatever that might mean. Their final section read:
May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically handicapped or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty.
The opinion would not grant a right to treatment, but the language would show the Court's sensitivity to the interests of those con
fined in mental in
stitutions. It could not help but have a positive psychological impact in the field of mental health. That left only the question of damages.
Stewart decided the best solution was to send the case back to the lower court and let it reconsider the award of damages. The clerks thought it likely that the lower court would again award damages, but at least there would be no sweeping precedent. This solution could also satisfy White and Stewart—who opposed damages—as well as those who favored damages.
As the Stewart clerks finished the draft, Klein reviewed it to be sure there was nothing offensive to Powell. The Stewart clerks had tried to give some general definition to mental illness. Klein was pretty sure that Powell would not buy an attempt to define such a complex term, so the definition was discarded.
When Stewart had edited the draft, a typed version was photocopied for Brennan, Marshall, Douglas and Blackmun. Sections of the tentative draft were shown to clerks in the chambers of White, Powell and Rehnquist. Since Stewart's opinion—only ten pages long, and seven of them devoted to a recitation of facts—broke so little legal' ground, it appeared likely to receive broad support.
Powell was troubled. He did not like the Chief's
Donaldson
draft. All term, however, it seemed that he had been challenging Burger. The Chief's response had taken an ugly turn. In February, Powell had circulated a significant labor opinion
(Cornell Construction Company
v.
Plumbers & Steamfitters Local Union #100)
for a five-man majority including the Chief. Powell's draft broadened the government's power to use federal antitrust restrictions against unions, and immediately drew joins from the other members of the majority except the Chief. Since Stewart's dissent had four votes, Powell was anxious to have the Chief's formal join memo, the crucial fifth vote. Burger was certain to join, Powell felt, because the opinion had an anti
-
union flavor. At a conference in April, Powell tried to get Burger to act. "All the votes in
Connell
are in except yours, Chief," Powell said.
The Chief stared at Powell and moved on to the next item of business.
Powell's clerk on the case then made some minor typographical changes in the draft and had it reprinted and re
-
circulated. That way a new draft would circulate and remind Burger that the case was awaiting only his vote.
The Chief sent back a memo requesting that something mentioned in a footnote be moved to the text.
Powell did it at once, sure that the Chief's vote could not be far behind. Another week passed. At the next conference, Powell mentioned the
Connell
case; only the Chief's vote remained to be counted.
Burger acted as if he hadn't heard.
Powell concluded sadly that the Chief was pressuring him. Burger knew that Powell held a key vote in a number of other cases, including
Donaldson.
It was just short of blackmail. But Powell decided that he might be overreacting. At the next conference, he again raised the Connell case.
"I'm thinking," Burger replied.
Powell had rarely been so stymied. Some things were clear. The Chiefs attitude toward unions was never in doubt. Powell's clerk jokingly suggested that they send another copy of the draft to the Chief with the postscript: "P.S. Chief, the unions lose." Powell was positive that Burger could have no real objections to his draft. But there had been about half a dozen conferences now.
In
late May, the Chief finally sent his join. Powell was relieved, but the experience left a sour taste. Perhaps he had been wrong, but he could find no way to get over his suspicions.
Now, on the
Donaldson
case, Powell was relieved that it was Stewart who had taken on the Chief. He liked Stewart's draft a lot better; it was narrow, short and direct Still he wanted to see what the others did.
After the Chief's circulation and Stewart's dissent, Klein conducted a campaign against the Chief's approach, giving every phrase and sentence the worst possible interpretation, particularly the "antisocial acts" language. The debate turned not on what the Chief had said or intended, but on what Klein and some other clerks said it might mean. The isolation of the Chief and his clerks from the flow of Court gossip left the negative interpretation unrebutted, yet Klein was still unable to persuade Powell to vote for Stewart's draft.
Meanwhile, Burger was frustrated. His draft had been in circulation for two weeks, and he had not received a single join. The Chief tried to nudge Blackmun. "I think I'm going to get my Court on the case," the Chief told him. Blackmun knew differently. The Chief tried White and Powell, but got nowhere. He had expected at least Rehnquist to join right away. Maybe the join memo had been lost in the interoffice mail. A clerk checked. It hadn't. The Chief sounded out Rehnquist, who replied that he had
a
real problem with what had been done to Donaldson.
Now, the Chief found Stewart's dissent in his mail. And it was no ordinary dissent. Since seven of the ten pages were facts, it was clear that Stewart was trying to steal the opinion. It was a clever effort, avoiding the difficult issue of a right to treatment. Such a narrow opinion, the Chief feared, would appeal to Blackmun and Powell.
The case had simply come to the Court in an unfortunate form, Burger reasoned. The lawyers for the doctors had done a terrible job. The Chief wanted to respond to Stewart's dissent, but he had to attend a judicial conference in Williamsburg, Virginia. He complained there about some of the attorneys who appeared before the Supreme Court. "The quality is far below what it could be," he told a discussion panel. Bazelon too was on the panel, and he praised the Chief Justice for speaking up about attorney incompetence. Bazelon agreed that it was "the most serious threat to the administration of justice." Privately, Bazelon thought the most serious threat to justice was probably Burger.