In Washington the next day, June
4,
the Chief tried to figure out how to gather some votes for his draft. About all he could do was try to revive the debate and let everyone know that he was still waiting. In a short memo, he proposed a new footnote to his draft and stated his view of the conference's intention on right to treatment. "I believe a majority were of the view that no such right existed."
There was still no response the next day. Burger was angry now. The right-to-treatment issue could not be left up in the air. He decided to send a sharper memo. Any opinion without a firm assertion that no such right exists, he wrote, would be a serious mistake. Anything less "will bring us quite a volume of business as 'jackleg' lawyers begin to look for new fields to conquer. The Constitutional issue is fairly presented and ought to be met."
Stewart thought Burger's "jackleg lawyers" memo was
a
new low. He suspected that
jackleg,
an archaic word meaning "unscrupulous," was aimed at Heineman, his former clerk. Stewart decided, however, to respond indirectly. He circulated some revisions to his "dissent" along with
a
short memo saying that in the area of mental illness, "the Court should proceed cautiously and deliberately. . . . The Court of Appeals used the case as a vehicle for an expansive essay on the constitutional law on civil commitment. This was unnecessary, and perhaps we should say so. But surely we should not make the same mistake."
On Monday, June
9,
Burger sent around a new, three-page memo. He wanted mainly to insure that the Fifth Circuit opinion was "washed out." "I am perfectly willing to consider alternatives so long as they make clear that the Court of Appeals' opinion is not to be considered precedent or the law of this case," Burger said.
Stewart heard a faint cry of desperation in the final sentence. The Chief was close to beaten. He had gone from insisting on a strong statement against a right to treatment to a willingness to accept "alternatives." It reminded Stewart of the Nixon tapes case. This time, however, the Chief was not going to expropriate his work. Stewart figured this was now his opinion.
Stewart was perfectly willing to state that the Fifth Circuit opinion was not to be considered the law. He drafted
a
short memo proposing an additional footnote to his opinion.
On June
10,
White announced in
a
long memo his intention to vote with Stewart. First, he had a few kind words for the Chief's draft; the Chiefs concerns were not altogether unreasonable. He wished Stewart's draft had gone farther. "I would thus prefer to decide one of the questions Potter leaves open, namely, whether a State may confine
a
non
-
dangerous person solely for therapy. My vote at the Conference was that the state may not do so. Otherwise, I shall remain where Brother Stewart has left me. B.R.W."
With White's memo and sure joins from Brennan and Marshall, the clerks turned to the only remaining problem: how to enable Powell to join without being the fifth and deciding vote. Klein had finally concluded that Powell did not want to be the one to tip the balance. That would be, for this term, one slap too many at the Chief. The logistics received an extraordinary amount of attention, but in the end the solution proved easy. Join memos from White, Douglas and Blackman entered the interoffice mail system at about the same time as Powell's. So none of the Justices could be identified as the fifth and deciding vote. The dissent draft now had seven votes. Only Rehnquist had not yet voted.
In Powell's chambers the clerks broke out the liquor. The case had been snatched right out from under the Chief. Stewart's dissent would surely become a majority opinion for the Court.
Brennan, however, was still wary. Stewart had the votes, but there was no telling what the Chief might try. He might pull some stunt like reassigning the case to someone else. Conceivably, as a last-ditch effort, he could try to hold it over for re
-
argument. It would be prudent to move fast. As Douglas was now the senior Justice in the majority, Brennan decided, Douglas should make a reassignment. Brennan called him at the Rusk Institute in New York and Douglas quickly agreed to reassign to Stewart.
Douglas's clerks wanted to be sure that Douglas's action would not be questioned. At a lunch with Stewart a few days earlier, Stewart had started talking about the last year of Woodrow Wilson's presidency. Wilson was physically and mentally incapacitated, Stewart had said, and Wilson's wife had become a surrogate President. She would visit the President and emerge with a series of orders. "The President wants this, and the President wants that." No one could be certain whether the desires were the President's or Mrs. Wilson's.
Douglas's clerks pondered Stewart's message. Did he suspect them of usurping? Was he warning them to avoid the temptation? It had all been very friendly. They decided to act cautiously on the
Donaldson
reassignment memo.
They had the memo typed, signed by a clerk and sent around, but they followed immediately with a memo to Douglas securing his written authorization.
Meanwhile, the Chief retreated to his office. He had few options left. There was only one thing that would allow him a semblance of dignity. Burger picked up the phone and called Stewart. "Potter, it looks like you clearly have the votes," he said graciously. Of course, Stewart should go ahead and change his dissent to a majority opinion.
Burger immediately sent out a memo telling the conference that Stewart was writing for the majority. The reassignment memos from Douglas and Burger crossed in the mail. There was no dispute.
For the Chief, the battle was over and lost. He had maintained his poise, but when one of his clerks came in, he could hold it in no longer. What had happened? he asked, stalking about his office. Just what the hell was going on? A major defeat on a major case, and to Potter Stewart of all people?
The clerk agreed with the Chief that his opinion had been fine, had been excellent in every respect.
It made no sense. His colleagues were out to embarrass him, Burger raged. They wanted to hurt the office he held. The clerk had never seen the Chief so angry.
His opinion, the Chief said, had been an important piece of sound legal work. When he got right down to it, the movement against him had started right after he had circulated his first draft nearly a month before. His draft might have proved unpopular, but it said what needed saying. The others had neither the foresight nor the courage to join him. Stewart's draft was not all that bad. But it just did not do enough to put to rest forever the notion of the right to treatment. The question now was how to salvage the most from a bad situation. Was a reasoned dissent in order?
The Chief looked over his twenty-one-page draft. It represented so much work; if he could use it, he had a chance to get something into the law books on the right-to-treatment issue. The more the Chief examined Stewart's majority, the more he saw an opportunity. To win his majority, Stewart had said nothing. He had written bland and evasive nonsense.
A dissent would be quickly forgotten, but a strong concurrence, addressing the issue Stewart had dodged, could have a pronounced practical effect on the lower courts. The right-to-treatment concept needed to be choked off. If it were well done, a concurrence that took no issue with the majority opinion, would appear, but for technical reasons, to have commanded the others' votes.
So the Chief began. "Although I join the Court's opinion and judgment in this case, it seems to me that several factors merit more emphasis than it gives them." His twenty-one pages were easily juggled and trimmed, his attack on the Fifth Circuit opinion sharpened, and the "significant antisocial acts" passage retained.
The Chief's final version was about half as long as the original. It was, in his view, an effective deterrent to those who might try to press new rights for mental patients. His clerk pointed out that the concurrence would look better if no one else joined. If Rehnquist signed on, it would look like a right-wing hatchet job. Standing alone, the concurrence seemed like an important message from the Chief Justice. The Chief got his wish. Rehnquist, still concerned about Donaldson's fate, decided that Stewart's approach was reasonable and gave Donaldson a fair chance to get his damage award. He was the last Justice to join the Stewart opinion.
The conference decided to announce the decision on Thursday, June
26,
the next-to-last decision day before the Court was to adjourn for summer recess. Burger announced in court that Stewart would deliver the decision in
O'Connor
v.
Donaldson.
Stewart flicked on his reading light and turned his head toward the Chief. For a tense moment, the two men looked at each other sternly across Douglas's empty chair. Only the Justices and the clerks realized the significance. Stewart then turned to his papers. With his glasses on, in his familiar hunched pose, he read. The Chief gazed distractedly around the courtroom and toyed with his glasses.
For Stewart, it was bittersweet. It was a victory, but not the kind he had imagined when he came to the Court seventeen years ago. He had merely put out a small brush fire.
Stewart realized the risk he had run taking this case from the Chief. A few days earlier, the Chief had done something that revealed the depth of his anger.
In a case called
U.S.
v.
American Building Maintenance Industries,
Stewart had circulated a pro-business majority draft that would limit application of the federal antitrust laws. He had received five votes at conference, including the Chiefs, and Burger had assigned the case to him. Stewart had gotten joins from all in the majority except the Chief.
White had circulated a one-sentence statement saying that, although he agreed with the result and joined part of Stewart's opinion, he was dissenting from the last part of it. Then, right after it became clear that Stewart was going to win on
Donaldson,
Burger circulated a memo saying he had rethought his position in
American Building Maintenance
and was going to join White. It was incredible to the other Justices. White had written one sentence; there was really nothing to join. And White and the Chief rarely agreed on antitrust cases.
White howled with laughter at the Chief
’
s memo. Stewart and he both concluded that it was revenge for the
Donaldson
case. The Chief was switching from a basic position. But hilarious as it might be, White figured he had better expand his one-sentence statement. If the Chief was serious, it might be a chance to get him on record for stiffer antitrust enforcement. White added three more sentences.
Stewart was finally rescued by Rehnquist, who went to Burger and urged him to stick with the Stewart majority. Burger sent a memo saying he had once again reconsidered, and was joining Stewart's majority.
As the end of the term drew near, the last of the outstanding majority opinions began circulating. Powell had written three out of a series of four cases involving border searches. Although Rehnquist did not fully subscribe to Powell's approach, he provided a fifth vote so that Powell would have a majority.
The Chief had assigned the fourth border search case
(U.S. v. Peltier)
to Rehnquist. The conference had treated it as simply a question of whether to apply the Court's two-year-old decision
(Almeida-Sanchez v. U.S.)
retroactively.
That decision had prohibited roving border patrol searches for illegal aliens without a warrant.
The conference had voted
5
to
4
that border patrol agents should not be held responsible for a standard that was not in force at the time of search. The majority felt it would be silly to exclude as evidence the
270
pounds of marijuana the agents had found, just because the search was later declared technically illegal.
When Rehnquist's draft came around there was virtually no comment or reaction to the routine retroactivity question. Then a Douglas clerk noticed an unusual twist of logic and several seemingly inappropriate citations. After reading these other cases, he came to an astounding realization. Rehnquist was drastically changing the entire exclusionary rule without explicitly saying so. Rehnquist held that evidence could only be excluded from prosecutions when the police used methods they knew to be illegal.
Since Douglas was in the hospital, the clerk took his finding to Brennan. Brennan was incredulous. The clear consensus of the conference had been to decide only the question of retroactivity. Here was an underhanded attempt to slip through a major policy shift. And Brennan was even more aggravated when he heard through the clerk grapevine that White had also been an accomplice.
Incensed at the subterfuge, Brennan instructed one of his clerks to prepare a no-holds-barred dissent pointing out the duplicity. -
Powell and Blackmun immediately held up their join memos. In an effort to get things back on track, Burger sent a series of notes to them urging them to join.