The four-word summary affirmance of the lower court judgment was greeted with harsh criticism from legal scholars. The Court's failure to explain itself, conservative Texas Law Professor Charles Alan Wright said, made its decision-making appear to be a "lottery." Stanford Law professor Gerald Gunther called the Court's summary affirmance "irresponsible" and "lawless."
Brennan's clerks obtained a copy of a Herblock newspaper cartoon and gave it to Brennan for his seventieth birthday on April
25.
The cartoon showed a couple in bed in their brick house which was labeled "Rights of Individuals." The house was being torn down as they woke up. The wrecking crew was headed by a judge called Nixon-Burger Court, who looked very much like the Chief. A smiling Rehnquist was hauling away the bricks and plumbing in a wheelbarrow. The startled man in the bed was saying, "We were told they were 'strict constructionists.'" Brennan put the cartoon up in his chambers and promised to keep it there until the Chief saw it
Two days after Douglas's retirement the Court turned to the lingering dilemma of school desegregation
(Carr
v.
Montgomery County Board of Education).
In Montgomery, Alabama, Frank Johnson, one of the most liberal federal judges in the South, and often mentioned as a possible nominee to the Supreme Court,* had ruled that busing was not necessary there. As a result of the decision, a number of virtually all-black schools would not be desegregated. Neither the conservative nor the liberal Justices were quite sure what to do. The conservatives worried that Brennan, Marshall and White wanted to grant cert in hopes of picking up votes from Stewart or Blackmun and Douglas's replacement to direct Johnson to order busing.
The liberals were concerned that the conservatives might seize the opportunity of Douglas's departure to establish once and for all that lower courts need not order so much busing. Johnson had tied his opinion to the specific facts of the case masterfully and had carefully interpreted them in terms of the Court's recent opinions. An opinion so carefully tied to the facts was difficult to overrule.
Burger passed at conference, waiting to see what Brennan would do. Disposed to take the case but fearing what the conservatives would do, Brennan paused. "Deny," he said. Surprised, Stewart hesitated a moment and then said, "Deny." When all the rest had voted to deny, Burger changed his pass to deny.
Later in the term, Powell was happy to see there were six votes for a Pasadena, California, school case to restrict federal court judges' authority
(Pasadena City Board of
* Johnson was later nominated by President Jimmy Carter to be Director of the Federal Bureau of Investigation but withdrew because of illness.
Education
v.
Spongier)
; he hoped for even greater restrictions in the next case. The perfect case seemed to be in Boston, where a district judge, W. Arthur Garrity, Jr., had ordered the crosstown busing of
21,000
public school pupils, desegregating several all-white and all-black areas of the city for the first time. Violent resistance by militant whites to the order had thrust the case into the national spotlight.
When the Boston school board, and white parent groups opposed to busing, appealed the case to the Court, there were reports that the Ford administration would come out against busing. But when these reports were followed by more violence, the White House decided not to intervene. Attorney General Edward Levi announced that they would wait and see how the Supreme Court ruled.
In June, Brennan, Marshall and White met to discuss the case. Each feared that the conservatives would want to take the case in order to further limit busing. Fortunately, as Judge Johnson had done in Montgomery, Garrity had grafted his opinion to the facts, making if difficult to overturn without directly overruling several precedents.
The conservatives also caucused. Powell and Burger were anxious to take the case. Garrity had clearly exceeded the proper limits for busing. But Rehnquist surprised them by strongly opposing a cert grant. Since oral argument could not take place until the next fall, there would be another round of violence in Boston when the next school year began. This was a case to let pass even if it was in
blatant conflict with the Mont
g
o
mery case.
At conference, Burger led off with a terse "I would vote to deny." Unsure as to what was up, Brennan said simply, "Deny." Around the table there was not a single vote to take the case. In one minute the Court had disposed of the term's potentially most controversial case.
By letting two conflicting lower-court decisions on busing stand, the Court revealed its uncertainty on the issue.
Stevens's first half-term on the Court left him disappointed and frustrated. He was distressed by the amount of paperwork. For the first month he tried to read every cert petition himself, as Brennan did. Then he gave in and accepted his clerks' cert memos. At conference, he spoke as forcefully and persuasively as he could. But as the junior Justice, he spoke last, the least effective position to be in. Burger always seemed impatient by the time discussion got around to Stevens, and the others had usually made up their minds. Stevens therefore spoke up more during oral argument, trying to get his points across before conference. He also circulated detailed memos and presented each of the others with his theories.
Stewart, in particular, welcomed Stevens's fresh approach, his intelligence and his willingness to work. He termed Stevens "first rate." Stevens did not argue grand theory or react with knee-jerk positions. His positions and his votes were as unpredictable as Douglas's had been predictable. Stevens was as meticulous as Blackmun, but not as insecure. He was as exuberant and outgoing as Rehnquist, but Stewart found his views more acceptable. He was as ready to debate as White, but not belligerent. There was no telling where he would go, nor was he afraid of changing his mind. Stewart began calling him the "wild card." He was an available vote for anyone from Brennan to Rehnquist. Stewart welcomed him as a member of the center—"the group," as he called it.
White took a less charitable view of Stevens. He felt, at times, that Stevens was erratic. Picking on Stewart's nickname for Stevens, he began referring to him as "the one-eyed Jack." Stevens's legal views were downright eccentric. After conference, White would tell his clerks that the vote was
5
to
3
to i, or
6
to
2
to I. He would smile when he mentioned the "i." None of his clerks had to ask which Justice was alone.
White wondered when the law reviews would come to realize that Stevens was not the imaginative new Justice he was depicted to be, but rather a man with a limited regard for precedent, a judge willing to start each issue from scratch. Stevens approached each case as a puzzle; it seemed he was looking for trick solutions. Still, White admired Stevens's confidence in his crazy ideas. "It's four to four, and we're down to the 'wild card,' " was a common refrain among the Justices when they were vying for Stevens's vote.
At one conference, Brennan expressed a strong view on the liberal side, and Rehnquist rejoined with an equally lengthy and strong conservative statement. "I agree with
Bill," Stevens said smiling, and he got a roaring laugh from the others.
But as the year went on, Stevens grew increasingly disenchanted. In a complicated labor picketing case
(Buffalo Forge v. United Steelworkers),
he was in a five-man majority at conference with Burger. The Chief assigned him the case. Stevens circulated his first draft, and his other votes appeared solid until he got word that Burger was not happy with it. At conference, Stevens tried to find out what was wrong but Burger appeared uninterested. Trying to surmise what the Chief wanted, Stevens sent a new draft around. When he got no response he tried yet another redraft. One of Stevens's law clerks learned from one of Burger's clerks that the Chief was not even reading Stevens's drafts, but the clerk couldn't bear to tell Stevens. Nevertheless, Stevens suspected that Burger wasn't paying much attention to his drafts.
At the last minute Burger joined White's opinion, giving him the majority; Stevens was forced to change his opinion to a dissent. The incident had a lasting impact on Stevens. Burger had not been frank. Not only was Burger inept, Stevens concluded, but he wasn't even trying. The relationship between the two men deteriorated as Stevens's cynicism grew.
At times, it seemed to Stevens that the Justices communicated only on paper; there was not enough informal discussion. When he did talk with one of his colleagues, more often than not he came away disillusioned. He asked Marshall about one opinion that Marshall was writing, and he concluded that Marshall did not really understand the issues in it. Stevens was sure that Marshall was capable of being a good lawyer, but he had not done his homework and was relying entirely on a clerk.
Six years after becoming Chief, Burger was still searching for cases that would provide an occasion for striking down or drastically modifying the exclusionary rule, the rule that said illegally seized evidence had to be excluded from a trial. Two cases
(Stone
v.
Powell
and
Wolff
v.
Rice)
involved state prisoners who claimed that the evidence used to convict them had been illegally obtained in violation of the Fourth Amendment. To Burger, these seemed perfect cases: two murderers were trying to overturn their convictions by raising technical Fourth Amendment claims. After the highest state courts had rejected their claims, the men had appealed to the federal courts. Under the Constitution, any state prisoner has a right to petition the federal courts for a writ of
habeas corpus,
which required the state to show that the imprisonment did not violate the federal Constitution. ,
Burger had long wanted to cut off
habeas
petitions on Fourth Amendment claims. He believed they were almost always frivolous, and they clogged the federal courts. To preclude such petitions—and to overrule an important Warren Court precedent
(Kaufman
v.
UJS.)
—would be a major victory..
But Burger wanted more. He still wanted either to overrule the
1961
Mapp case, which applied the federal exclusionary rule to the states or, at least, to modify the federal rule to exclude evidence only in instances of flagrant, bad-faith police violations of the Fourth Amendment.
After conference, Burger assessed the complex voting. There were at least five votes to cut back on
habeas
petitions. There were also four votes, White, Blackmun, Rehnquist and himself, willing to cut back on the exclusionary rule itself. Powell had voted only to cut back on the
habeas
petitions. Burger could only get his dramatic double victory if Powell were to shift and were willing to modify the exclusionary rule itself. But Burger held out hope that Powell was still open on the subject. Burger used his most potent enticement to lure Powell and assigned him the cases.
When Burger got Powell's draft opinion, however, he felt betrayed. Powell was limiting the
habeas
petitions, but he still refused to modify the exclusionary rule in any way. Burger angrily decided to apply some pressure. He let Powell know he would not join unless Powell went further. But Powell still had hopes for five votes, even without the Chiefs. Stewart seemed to be a possible fifth vote though he was shaky. Powell knew his opinion amounted to overruling the Warren Court's precedent on the
habeas
petitions, and providing the fifth vote to overrule a Warren Court precedent was something Stewart was generally loath to do. Whether it would be the Chief or Stewart who provided it, Powell needed that fifth vote.
Stewart recognized Powell's precarious position. Though he was uncomfortable with Powell's opinion, Stewart knew this was not the time to leave him in the lurch. Stewart joined. The Chiefs vote was unnecessary. Burger was left without any leverage; reluctantly he finally agreed to join Powell's opinion.
Stevens had hardly taken his seat on the Court when he found himself the man in the middle on the death penalty. The
5
-to
-4
ruling in the
1972
death penalty cases was known by the lead case,
Furman
v.
Georgia.
The rulings, which had struck the laws in
35
states, ducked the ultimate constitutional question: Does the penalty itself— as opposed to the manner of sentencing—constitute "cruel and unusual" punishment?
About thirty-five states had enacted new death penalty laws deliberately designed to avoid the restrictions of the
1972
ruling
(Furman).
No one had yet been executed under these new laws, but hundreds were once again waiting on death row.
Douglas had been in the
5
-to
-4
majority in the
Furman
case. That left the Court divided
4
to
4
when Stevens arrived. Stevens's position was a particularly big question mark, since he had never dealt with the death penalty issue on the Seventh Circuit Court of Appeals. Working according to a long-established pattern, Stevens prepared to take on the fifty pending death cases. After a full day in his chambers, he was home by about
8
p.m
. and in bed by
10.
At
2
a.m
., he rose for a few hours of uninterrupted reading and work before returning to bed. These night hours were often his best and most productive.