The media had billed the case as a confrontation between the First and Sixth Amendments, but while sympathetic to the judge, Brennan saw better ways to reduce pretrial publicity: the trial could be delayed; potential jurors could be questioned more rigorously to weed out those whose views had been prejudiced by news coverage; and, as an extreme measure, the location of the trial could be changed. These steps, Brennan believed, would guarantee a fair trial while leaving the press unfettered by judicial orders. He believed that prior restraint might be permissible in extreme cases that involved national security during wartime, but never in coverage of judicial proceedings or reporting about crimes. This case was not a legitimate exception to the First Amendment. The Nebraska judge's order banned publication even of statements made in open court at a pretrial hearing. It was absurd. Spectators in the courtroom could discuss what was said, but the press could not report it.
The case was heard in late April. At conference, Burger said he was willing to vote to reverse the Nebraska gag order because the judge in this case had failed to demonstrate that other alternatives would not have ensured a fair trial. But he could conceive of situations in which gag orders would be permissible and he would not ban them altogether.
Brennan- said he would go further. The Court not only should hold the gag order impermissible in this case, but should flatly rule them out in all criminal trials. Without such a strict rule, judges would continue to issue gag orders.
Only Rehnquist disagreed that this particular order should be overturned. But Brennan felt there were five solid votes for an absolute ban on
all
gag orders—Marshall, Stewart and himself, as he had expected, and in addition Stevens and White. The latter two had indicated that they could foresee no situation where gag orders were the only means of ensuring a fair trial. White wanted to resolve the issue now, rather than hear each case as it came up. But Burger, viewing himself as the senior Justice in a majority to overturn the Nebraska gag order, assigned the opinion to himself.
When the Chiefs assignment sheet came around, Brennan exploded. The case should have been given to one of the five Justices in the mainstream, someone who favored an absolute ban.
Brennan's clerks were equally disappointed. They had hoped to have at least one major case that term. The Nebraska case, the most significant press case in years, was their last hope. It would fit nicely into the long line of important First Amendment opinions by Brennan. The clerks pushed Brennan to draft a counter-opinion expressing the views of the real majority. Since it was getting toward the end of the term, they should have it ready to circulate immediately after Burger circulated his opinion. Burger would have no time to alter his draft to express the majority's will, and Brennan would win the votes. Brennan, although unenthusiastic, told his clerks to go ahead if they had time. One clerk started immediately. The existence of the alternative "counter-draft" was kept secret from the other chambers.
Burger had taken no major cases for himself during the term until this one. He worked harder on it than on any other opinion. As he read the prior cases, he became increasingly convinced that his position at conference had been right. The judge in Nebraska had not explored the alternatives, and his gag order was unjustifiable. But there was no reason to go further. This was the Court's first such case. Circumstances might alter the Court's general predisposition against such prior restraints. It was more prudent to develop the law slowly, case by case. After all, the Court had never held the First Amendment absolute but had, in such cases as that of the Pentagon Papers, consistently left open the permissibility of prior restraint.
Burger anticipated Brennan's reaction. "Bill, he said, taking Brennan aside one day at a conference to discuss the status of unfinished cases, "you're not going to like what I've written on the
Nebraska
case."
Brennan said nothing. Though his clerks urged him to circulate the counterdraft first to get a jump on the Chief, Brennan told them to wait He could not break protocol so blatantly. "I have to live with him next year," he said. "You don't." He did, however, allow the counterdraft to be printed so it would be ready when Burger circulated his opinion.
Late on Monday, June
7,
Burger's draft circulated with a short cover memo saying that he was willing to accommodate everyone but would not give in on one point: there could be no absolute ban on all gag orders.
Brennan had already left for the day and his clerks called him at home to say that Burger's draft had come. It was exactly as expected. Could they circulate the counter-draft? Fearing the Burger draft would probably be acceptable to enough of the others, Brennan agreed. Burger was, after all, overturning the gag order, the bare minimum of consensus. Brennan knew he would have to remind the others that they had agreed to go further. The next day, Brennan prepared a cover memo explaining that his draft banned all gag orders, as the conference majority had voted.
Burger was insulted by Brennan's draft and infuriated by the cover memo. Brennan's long, polished draft, complete with the facts of the case, was a premeditated attempt to steal the majority. The direct challenge—the insinuation that his own draft did not reflect the view of the conference—was open warfare. Burger shot back a short memo to the conference taking up the challenge: If the absolute ban had been the conference consensus, he said, he would have written it that way.
Marshall and Stewart joined Brennan's opinion almost immediately. Rehnquist, Blackmun and Powell joined the Burger draft, giving him four votes. Brennan remained hopeful—White and Stevens had been with him at conference.
White knew how important the case was to Burger. He decided to give him the fifth vote. Even without the ban, Burger's opinion was a strong First Amendment statement. It said that "prior restraints on speech and publication are the most serious and least tolerable infringement on Fust Amendment rights." But White added a one-paragraph concurrence saying that he had "grave doubt" that such gag orders would "ever be justifiable."
Stevens did not want to offend either Burger or Brennan. He decided to concur in the judgment and join neither opinion. But in a one-paragraph opinion of his own, he wrote: Brennan's opinion was "eloquent," but he would not buy it. "I do, however, subscribe to most of what Mr. Justice Brennan says and, if ever required to face the issue squarely, may well accept his ultimate conclusion."
Brennan concluded that he had the majority in principle. White and Stevens had literally said they were with him in their opinions. But the Chief had bucked the majority will and won.
Brennan instructed his clerk to leave the facts of the case as they were written in his opinion, hinting that it had once been, and perhaps still was, the view of the majority.
"Let the
public speculate," he said, publi
shing the full opinion as a concurrence.
On Friday April
30,
the conference considered the cases that were argued during the final week of orals. In one
(
Burrell
v.
McCray),
the Fourth Circuit Court of Appeals had ruled that state prisoners could sue in federal court over violations of their constitutional rights without first exhausting every available state grievance procedure.
Burger, Powell and Rehnquist voted to grant cert, hoping to reverse the Fourth Circuit and deny state prisoners direct access to federal courts until they had gone through all state procedures first. In a
1970
series of cases, a conservative majority had successfully limited federal court involvement in state criminal trials. Now Burger, Powell and Rehnquist wanted to further reduce the federal courts' involvement in state proceedings. But to do this it might be necessary to overrule a
1
961
precedent.
White was the fourth vote to grant cert, but for the opposite reason. He thought it was an important civil rights case, and he wanted to uphold the Fourth Circuit in it.
At conference, Burger, Powell and Rehnquist could not muster any other votes for their position.
Brennan was preparing to assign the case when Burger said he had decided to switch his vote to the majority.
"Jesus Christ," White bellowed, throwing his pencil on the table and pushing his chair back in disgust. "Here we go again."
Stewart interrupted with a suggestion. He preferred to see the Court simply rule in favor of the prisoners but without handing down an opinion. In addition to the question of access to the federal courts, there was a second question—whether the prisoners' deprivation constituted cruel and unusual punishment. Stewart felt there was more dramatic evidence of cruel and unusual punishment in other cases. This case was pale by comparison; it was not the case in which to decide that issue. It should, perhaps, be "DIGGED"—"dismissed as improvidently granted"— without a decision, he suggested. That way the Fourth Circuit opinion, favorable to the prisoners, would stand. Powell agreed with Stewart, and Burger suggested to Stewart that he research the question.
Brennan was furious. Stewart might have had some legitimate questions about the evidence of cruel and unusual punishment in the case, but it seemed clear that Powell had supported a "DIG" only as more desirable than a complete loss. If the case were to be dismissed as improvidently granted, the Fourth Circuit's opinion would be precedent only in that circuit, and not nationally, as it would be if the Supreme Court explicitly affirmed it.
One of the risks of voting to grant cert and hear a case was the possibility that the decision might not come out the way one wanted. But that was how the game was played. Brennan had himself lost many cases that way. A Justice could not be allowed to effectively withdraw his cert vote by supporting a dismissal when it seemed likely that the conference decision was going against him. That was exactly what Powell was doing. According to the Court's own rules, dismissals were permitted only when precise technical defects were discovered after cert was granted.
At the minimum, Brennan felt that all four Justices who had voted to grant cert had to favor dismissal before anyone else should be allowed to provide the necessary fifth vote. Otherwise, five Justices who did not want to vote cert in a particular case could wait until after oral argument and then vote
to
dismiss, destroying the Rule of Four
to
grant cert.
Powell did not wish
to
seem as if he were voting
to
dismiss the case because he had lost. So he decided not to vote
to
"DIG" unless and until there were four other votes. He promised Burger he would join as a fifth vote if there were four votes by May
20.
Meanwhile, Stewart managed
to
get the four—himself, Burger, Rehnquist and Blackmun. On Thursday, May
20,
Powell dictated a memo
to
Burger: "As the sun is almost down (as I promised) I join four"
to
dismiss. He added that it was a "shaky rule" and that "under normal standards it would be difficult
to
justify."
Brennan wrote a two-page dissent in which he charged that the five-man majority "plainly flouts the settled principles."
While he had not voted for dismissal, Stevens thought Brennan was wrong. Although unusual for a new Justice to take any of his colleagues publicly to task, Stevens defended the dismissal in a three-paragraph opinion. As long as one member of those voting to grant cert joined in the dismissal, "the action of the Court does not impair the integrity of the Rule of Four." When the dismissal was announced, Brennan and Stevens published their short opinions. Only the most perceptive of Court watchers got
a
glimpse of the real nature of the internal conflict.
Brennan and Marshall were worried about a case
(Doe v. Commonwealth's Attorney)
that had come on direct appeal from a three-judge district panel in Virginia. The panel had upheld a Virginia anti-sodomy law that outlawed homosexual acts, including those performed in private by consenting adults. Since federal law required the Court to accept appeals from three-judge panels, the Court would have to decide the case. But Brennan and Marshall could get only Stevens to vote with them to grant oral arguments. The others wanted to affirm the lower court decision summarily. "The judgment is affirmed," would be the Court's only statement.
Marshall was outraged. Privacy interests acknowledged explicitly in earlier opinions, particularly in the
1973
abortion decision, should protect consenting adults in such matters. The Virginia law that had been upheld also banned heterosexual oral sex. Marshall found it ridiculous that the state should exercise such police power. Worse, in Marshall's eyes, was the majority's unwillingness to face the issue squarely—to accept the case for argument and to write an opinion spelling out its reasoning. It was cowardly. The Court's authority rested, in part, on its ability and willingness to offer its reasons for any decision. Where were the other votes—Blackmun, Stewart and Powell— that had extended the concept of privacy as
a
basis for the right to have an abortion?