Brennan emerged from the conference drained and saddened. The Court now had seven Justices who felt that the death penalty did not necessarily violate the Eighth Amendment. There were not five votes to strike any one law. The best vote on his side was
4
to
3
to strike North Carolina, but the two passes were Powell and Blackmun, who had voted to uphold all other laws. Brennan was so discouraged that he virtually turned the cases over to one of his clerks.
Burger saw a rare opportunity to assign all five cases. He was in the majority in four, and in the North Carolina case there was not yet a five-man majority either way. Accordingly, it was logical that he assign it. He was tempted to take the decisions himself, or give them to Rehnquist. But White was the key. He was for upholding all five state laws, but given his
1972
rationale against the death penalty, his vote had to be guarded. The assignment would probably hold him. White was also the most likely to draft a technically proficient and consistent opinion which could pick up Powell's and Blackmun's votes in North Carolina, to give the pro-death-penalty side a clean sweep.
On Monday, April
5,
Burger circulated the assignment sheet giving all five cases to White. White was pleased, and even a little excited, by the challenge of pulling together a majority in the North Carolina case. He geared up for the research and writing, giving all three of his clerks part of the work. As the chamber threw itself into the assignment, White alternately blew hot and cold on the prospects of bringing it off. For the next four weeks, he worked almost exclusively on the five cases.
Powell was surprised at the assignment. When he checked his notes, he felt there had to be some mistake. He had marked himself as a vote to
strike
the North Carolina law, providing the fifth vote. In his own mind, he had not passed as the others had apparently concluded.
Stevens, still unsure of the protocol after fewer than four months on the Court, was also perplexed. Whatever Powell's or Blackmun's vote in the North Carolina case had been, there were more votes
to
strike
it
than
to
uphold
it.
Stewart understood the logic of the assignment to White, but he raised the matter of North Carolina with Powell. It was clear from what Powell said that he was now, or always had been, a vote to strike the North Carolina law. That meant there was a five-man majority to rule
it
unconstitutional.
Stewart and Powell shared a favorable impression of Stevens; they decided to talk with him. As they talked, it was apparent that they were all firm in wanting to strike the North Carolina law. Brennan and Marshall could be counted on to join them at least in the result, though probably not in the reasoning of the opinion. That was five votes. Stewart could see the possibility of a working centrist coalition on the other four cases as well.
Stewart, Powell and Stevens all favored upholding the discretionary Georgia and Florida laws. While the three were not in agreement on Louisiana and Texas, they might be able to work out a full opinion spelling out their reasoning and then agree on all five.
Stewart in particular was fairly certain that they could work out a compromise and formulate an overall theory covering all five.
But they needed to begin writing. Normally they would wait for White's opinion, then one of them would write a dissent in the North Carolina case and pick up the votes, making the dissent a majority. But the term was about to enter its frenetic final two months. If they waited, they probably would not get out their own opinion in time. That could mean reargument the next year.
They went to see the Chief to explain their emerging consensus. Burger was not very responsive. White still had the assignments. He would probably be circulating soon, Burger said, and there was no reason to do anything but wait. Then they could do what they felt was necessary.
Stevens left the meeting astounded. Burger was thwarting the will of the clear majority in the North Carolina case. The Chief was forcing them to work underground. Stewart and Powell told Stevens that now perhaps he could see what they all had been dealing with for years.
The three Justices—the troika, as they were soon dubbed —concluded that they had to inform White that at least one of his five cases had slipped away. White and his clerks had been working for a month. Stevens did not like sandbagging White. He would not go. As the senior of the troika, Stewart finally went to see White on one of the first working days in May. He began by telling White that Powell, Stevens and he had talked informally, that they had realized that they all wanted to strike the North Carolina law. With Brennan's and Marshall's vote, that would give them a majority. Avoiding White's gaze, Stewart forged ahead, explaining that they were also trying to develop a rationale to fit the other cases.
How can some laws be upheld and others struck? asked White. On what theory?
Stewart said they would work that out. But they wanted to let him know what they intended. It was too late in the term to wait for his circulations. At the same time, they did not want to work behind his back.
But what was their approach? White pressed. Maybe he could satisfy them?
Stewart was vague. He said simply that they knew the direction in which they were headed. The laws most like North Carolina's would be struck. Georgia's and Florida's, with separate sentencing hearings and guidance for the jury, would be upheld.
"Of course," White said, "you're going to overrule
Mc
Gautha." (McGautha
said sentencing and guidance for juries were not constitutionally required.)
"No," replied Stewart. They would find a way around
McGautha.
"How can you with
a
straight face not overrule
McGautha?"
White asked.
Stewart replied that they were not going to say that sentencing standards were absolutely, constitutionally required.
McGautha
could stand.
White didn't buy it.
Stewart was immovable. After nearly an hour, he left on a very chilly note.
White, feeling both powerless and disappointed, rebuked himself for failure to focus on the weak case in the assignment, the North Carolina case. But he could see the moment Stewart walked out of his chambers that the struggle was effectively over. White went to his clerks. "There is now a three-man plurality in the death cases," he explained. "I want one of those opinions ready to go to the printer by the close of business today," White said coolly. He was going to play by the rules and carry out his assignment. White said he did not want their research shared with other chambers, particularly those of Stewart, Powell and Stevens. They were not to see drafts that were not circulated. White tensed slightly. "Can you believe it?" he added. "They're not going to overrule
McGautha."
Another legal abomination was in the making. "I thought the reason I was writing these in the first place was for them to read and react," White said.
White knew that Stewart had instigated the effort to steal the opinions. Typically, Stewart was hiding behind another committee. But recognizing the importance of the five cases being handled as a group with a consistent rationale, White formally submitted all five cases back to the conference for reassignment.
On Wednesday, May
5, a
special conference was called to consider the reassignment of the death cases. Burger wanted only the Justices to know about the meeting. The normal preparations for conference were unnecessary. The buzzer did not have to be sounded, and no refreshments would be served. The conference would be short
After the Justices sat down, Burger said there were clearly now five votes to strike the North Carolina law.
White said he could not join the rationale that Stewart, Powell and Stevens were developing, and was formally resubmitting all five cases for reassignment so that a moderately coherent principle might emerge.
Dealing first with North Carolina, Burger acknowledged that he was in the minority and could not assign the decision. That left it to Brennan. But Brennan declined to assign the case; he did not share the troika's reasoning; he thought that any death penalty was unconstitutional.
Stewart proposed that the three Justices in the center could be joined on the laws they wanted to strike by Brennan and Marshall, and on the laws the three wanted to uphold by the four on the other side.
Powell and Stevens elaborated on the theory they were developing. They suggested that the
1971
McGautha
ruling —that standards guiding sentences by juries and separate hearings were not required—was inconsistent with the
1972
Furman
opinion. They might have to acknowledge that
McGautha
was bad law or even overrule it.
Burger adjourned the conference after about twenty minutes.
Stewart had long felt that the Justices in the center controlled major cases, but they had always suffered from a real handicap. Burger, on the right, or Douglas and then Brennan, on the left, controlled the assignments. Now, by breaking protocol the center had effectively taken over an assignment for the first time.
The troika, however, had no draft opinion and very little time. Powell was also concerned that they had no clear-cut legal theory for these cases, were not fully agreed among themselves, and had only a working plurality, not a majority. The three met several times to discuss and divide the work. Each sensed that the effort might fail.
They all agreed that Stevens should take the facts. They also agreed that they needed a section holding that the death penalty did not invariably violate the Eighth Amendment. Powell agreed to do this section, since he could draw from the briefs and his long
Furman
dissent. This would probably go with the opinion in the Georgia case, because they agreed that Georgia had the best law. Next, they had to have a fully developed opinion striking the mandatory
North Carolina law. Stewart agreed to undertake this draft that represented the biggest problem. None of them could articulate a clear rationale why North Carolina's law violated the Constitution.
Once these tasks were completed, they could try to fit each of the other laws into its proper category. It seemed almost certain that the Georgia and Florida laws would be upheld. The Louisiana and Texas laws were left in limbo.
Stewart and one of his clerks went to work on the North Carolina draft. The Court's
1972
Furman
decision had clearly prompted North Carolina to enact a mandatory death penalty law. The state's brief defending the law maintained that it was enacted to eliminate "all sentencing discretion" so that "there would be no successful
Furman-
based attack" on the new law. Stewart had been disappointed when the states began passing mandatory laws after
Furman.
The North Carolina law was certainly one that he had been partly responsible for creating.
Stewart wanted to rely heavily on his separate opinion in the
Furman
case, which argued for striking the death laws as arbitrary and capricious. But the automatic penalty was regular, predictable, uniform. He soon developed a line of reasoning that made his point. "It is capricious to treat two similar things differently," he said. And by enacting mandatory death penalty laws in response to the Court's
1972
ruling, states like North Carolina had put an end to situations where some murderers got the death penalty and some did not. This ended the capriciousness of having no reason for some men being put to death while others were not. But now Stewart added, "It is capricious to treat two different things the same way." Since each defendant is different, to give all convicted murderers the same penalty, the death penalty, was just as capricious as imposing it randomly. Some sentencing guidelines were therefore necessary.
Stewart sent the draft to Powell and Stevens. Powell was dazzled; Stevens was satisfied.
Powell and his clerks, meanwhile, were working on their section. He worried that his rationale for upholding some capital punishment laws might sound contrived, since the Court had struck down other death penalty laws just four years before. He still believed in his own dissent, but
Furman
was precedent. Stewart and Stevens, however, liked Powell's draft. That left the troika with the two cases on which they did not yet agree.
Stewart and Stevens had voted to strike the Louisiana law, which was virtually mandatory. It was almost as inflexible as North Carolina's. Stewart presented some arguments on this to Powell, and he agreed to switch his vote.
Only Texas remained. It was the hardest to fit into either category—mandatory or discretionary. Though it did not specify as many procedural safeguards for the accused— with provisions for guidance or separate sentencing hearings—as the other discretionary laws, Powell wanted to uphold the Texas law. He had gone along with Stewart and Stevens on Louisiana; it was their turn to go along with him. Stewart changed his pass to uphold, and Stevens, who had originally voted to strike, also switched. But Stevens was uneasy. They were acting like a superlegislature, laying out a model law. Despite qualifying phrases that they were not requiring standards and separate sentencing - procedures, no one could miss the point. It would have been clearer to overturn
McGautha
and state that standards and separate hearings were now constitutionally required.