Black also agreed with the Inc. Fund that everyone seemed to have this matter all backwards. Everyone seemed to think that the status quo was segregation, and that monumental efforts had to be launched to change the status quo. But the law was the status quo. And the law, laid down fifteen years before by this Court, called for single, unitary school systems. The order should explicitly reject "all deliberate speed" and demand desegregation immediately, today, at once, now. No more rhetoric. "If anybody writes," Black concluded, "I dissent."
There was a moment of stunned silence. A dissent by Black, a giant of the Court, an historic figure, would make it look as if the Court was in retreat. It would give new hope to the South's "never" faction. Several Justices spoke up out of turn to ask Black just how the Court could expect to enforce this order now. Black refused to discuss it. "You do what you want, and I'm going ahead," he said.
Next it was Douglas's turn to speak. Back from a summer in the Cascade Mountains of Washington State, Douglas was an imposing physical presence in the conference. White-haired, with a cowlick, a sinewy six-footer, he looked uncomfortable in his inexpensive business suit, rumpled white dress shirt and Dacron tie. Tanned and weathered, his face reflected his many off-season trips to all parts of the world. His twenty books, countless articles and speeches, and even the cowboy dime novels published under a pen name in his youth reflected his individualistic values. Douglas had built his life on adversity: poverty, polio, camping accidents. He had spent most of his years moving against the grain. He had been twice mentioned as a vice presidential candidate, and once he had been offered the nomination, but he had decided against a politician's life. Nonetheless, he had never hesitated publicly to urge his internationalist views, even in the face of the fervent anti-communism of the
1950s.
Douglas's soft voice countered his authoritative tone. He rarely spoke at length in conference. He had decided years before that attempts to persuade were futile, or, even worse, counterproductive. His colleagues knew where he stood on most issues. He unabashedly accepted liberal dogma. He was for the individual over government, government over big business, and the environment over all else. But Douglas still insisted on laying out his exact resolution of each element of a case in his formal written opinions. If he could not persuade his colleagues, he could at least spread his ideas outside the Court.
Douglas wanted the Court to move aggressively on the race issue. In typewriter cadence, he clicked off several sentences on his general position, moved to his next point, kicking the table as he paused, jumped to another point without a connective, flapped his ear nervously while staring coldly across the table, and finally, again without warning, tied up his first and last points in terse summation.
To the others, the position was clear. Douglas would support Black.
John Harlan, quietly chain-smoking Larks, had been scrupulously attentive during Black's tirade. One hand rested near his grandfather's gold watch chain strung across the vest of his dark suit. Harlan had worn the same conservative suits, ordered by mail from London, virtually every day since he had come to the Court fourteen years before. Gaunt and ramrod-straight, he had a commanding presence. An ulcer operation had removed half his stomach, and he had no ex
tra weight on his lean, 6-foot1
frame. A Wall Street lawyer from a wealthy family, private schools, then Princeton and Oxford, John Harlan was the quintessential patrician, generally unflappable and unfailingly courteous.
His grandfather, named for the country's fourth Chief Justice, John Marshall, had been a Justice for thirty-four years. He had been known as the "Great Dissenter," the only Justice to dissent in the famous nineteenth-century case
Plessy
v.
Ferguson,
which had permitted segregated schools until it was finally overturned by the
1954
Brown
ruling. Like his grandfather, Harlan viewed the law as almost a religious calling. Despite—and also because of— his near-blindness in the last few years, Harlan was the Court's hardest working member. He read about
150
words per minute, bent over, his eyes nearly touching the paper. Yet he was the Court's most prolific writer. No matter how insignificant the disagreement or how minor the case, Harlan felt compelled to spell out his views for the sake of intellectual honesty. He made one exception to that rule: school desegregation cases.
Harlan had been the "conservative conscience" of the Warren Court, a frequent dissenter. He advocated restraint rather than activism. Despite his disagreements with Black, the two were as close as brothers. Harlan felt that he understood Black's concerns, particularly his guilt and anguish over "all deliberate speed." Yet he was offended by Black's speech, not because of the attack on Nixon—that was just Hugo—but because an order was no way to decide a major case. It would be preposterous for the Court just to say "Do it now," without offering any reasoning. The district and appeals courts needed guidance, and that required an opinion.
Black was being too emotional. Ever since his stroke, Black had been increasingly unpredictable, testy and belligerent, Harlan thought. "Difficult," Harlan called it. Black wanted to decide this case in a spasm of indignation. Harlan would not allow it. For years, internal disagreemerits had been festering among the Justices on the difficult details of desegregation. They had subordinated those disagreements to maintain their united front. Harlan felt that this might be the case where their differences might erupt into public view. In the current climate, the shattering of the Court's unanimity could set the Court and the country back several years or decades. But Black had laid down a challenge: Do it my way or I'll take those risks. Black was tinkering with the bottom line—unanimity.
Harlan said he agreed that delay should be rejected out of hand in strong language, but in a well-reasoned opinion. He would go along with much of what the Inc. Fund wanted—taking the case away from the federal district court in Mississippi and making sure there would be no long arguments over plans. But he was not going along with any notion of immediate desegregation. The Court— the Warren Court—had been criticized too often for its pie-in-the-sky views. Now the Burger Court had to show consideration for the realities. Instant desegregation was impossible.
Harlan also strongly disagreed with Black's notion that "all deliberate speed" was at the heart of the delays. Another phrase, or no phrase at all, would not have helped. The problem of achieving desegregation in the South was intractable, destined to take a long time no matter what the Court had said fifteen years before. But Nixon and his administration were also a new reality. Harlan was deeply suspicious of Nixon's motives. To affirm the Court of Appeals, as Burger seemed to favor, would send the wrong signal. Whatever the Court said, it should overturn the Court of Appeals. Harlan wanted to send a strong message to both Nixon and the South that the Court was not backing off. Then Harlan laid down his own challenge. He wanted unanimity, but if Black wrote a separate opinion, he too would write separately.
Brennan was disturbed to see the conference splintering. He agreed with much of what Black said, but one had to be practical. He wanted to stay in the middle. That had been his vantage point for years as the prime mover on the Warren Court. Physically smaller than his colleagues, Brennan was the most energetic advocate. He cajoled in conference, walked the halls constantly and worked the phones, polling and plotting strategy with his allies. He was thin and gray-haired, and his easy smile and bright blue eyes gave him a leprechaun's appearance as he sidled up and threw his arms around his colleagues. His warmth allowed Brennan alone to call the reserved Harlan "Johnny." It had been Brennan who had sat each Thursday with Warren preparing an orchestration for the Friday conference.
"Well, guys, it's all taken care of," Brennan often told his clerks after the sessions with Warren. With votes from Fortas
, Marshall, and
usually Douglas, Brennan rarely failed to put together a majority. He had dissented only three times the previous term, only thirty times in the last half decade. Now, with Burger replacing Warren and Black threatening to dissent, the situation looked bleak. So Brennan said little.
Potter Stewart spoke, and then Byron White. Both were upset by Black's threat, and his absolutist position. The school year had already begun. The Court had to recognize that. They both believed that the intricate processes of desegregating schools couldn't be accomplished over a weekend.
Stewart had been an appeals court judge before coming to the Court. He wanted to help the lower courts, not to confuse them. Black's "now" view might make good reading, but the trial courts needed to know what to do. If the Court said "now," the appeals and district court judges would simply ask, "What does that mean?" Worse, Stewart feared that the lower courts would lose faith in the Supreme Court if it came out with some abstract pronouncement.
There was no question where the final speaker at conference, Thurgood Marshall, stood on the question of school desegregation. Marshall had headed the Inc. Fund for twenty-two years, from its founding in
1939
until
1961,
when John F. Kennedy appointed him to the Second Circuit Court of Appeals. The great-grandson of a slave, son of the steward at a fashionable all-white Chesapeake Bay yacht club, Marshall pioneered the civil rights battle against segregation in housing, public accommodations and schools. He won
29
of the
32
cases he argued before the Supreme Court for the Inc. Fund.
In
1965,
Lyndon Johnson appointed Marshall Solicitor General. When Marshall hesitated, Johnson's closing argument was, "I want folks to walk down the hall at the Justice Department and look in the door and see a nigger sitting there." Two years later Johnson appointed Marshall to the Supreme Court. Marshall had not sought and had not wanted the appointment. He preferred the more active give-and-take of public-interest law. His jurisprudence was long settled; so at conference, Marshall was relaxed, almost intuitively reaching his common-sense solution. He had fit easily into the Warren liberal majority. Plain-spoken and direct, Marshall saw his job as casting his vote and urging his colleagues to do what was right. On the Court, he had little interest in perfecting the finger points of the law. He often told his clerks, only half jokingly, "I'll do whatever Bill [Brennan] does," sometimes even jotting "follow Bill" on his notes. He trusted Brennan's resolution of the detailed, technical questions of legal scholarship. The clerks had taken to calling Marshall "Mr. Justice Brennan-Marshall." Often he would follow White on antitrust cases. But on discrimination cases, Marshall followed no one.
Marshall had headed the team of lawyers who argued the original
Brown
cases. He remained unhappy with "all deliberate speed." He shifted his massive six-foot-one, two-hundred-and-fifty-pound body slightly as he closed in on his point. He agreed with Black that the phrase was ill-chosen. But the most important element in this case was unanimity for desegregation. There must be no suggestion that the Court was backtracking. He was a practical man. If necessary, he said, he was willing to go along with a delay to December
I
for submission of plans.
But that was not the major point. Marshall was concerned with bread-and-butter issues—getting black kids and white kids in the same schools. The key was a date for implementation of the plans, and the Fifth Circuit had not set one. Without a date, even the Justice Department admitted that implementation would not occur until the next school year. Surely the schools could do better than that, Marshall said. He proposed setting the implementation deadline for January, the beginning of the next semester.
As the Justices expressed their views, Burger grew increasingly worried. The new Chief had seen during his first weeks that many cases were not decided at conference. Feelings were tentative, disagreements subtle. Often, something had to be put down on paper before a consensus emerged. Burger knew the press would view this case as the first test of his leadership. None of the opinions argued so far was nearly ready to be issued. Burger didn't want to let things get any more out of control than they already were.
The Justices did have some points of agreement. First, the Supreme Court itself must not appear to be delaying. An expedited order would have to be issued soon—perhaps by the coming week. Second, the Court of Appeals should retain jurisdiction and, thus, control. The federal district court, which had allowed years of stalling, should not be involved. There even appeared to be a majority for reversing the appeals court's decision to grant a delay in the submission of plans. So that issue was settled. But beyond these points, there was a broad spectrum of opinion on what the Court should do and say. Should the Court set specific deadlines for the appeals court, or allow it some flexibility to work out the problem?
In keeping with the tradition that the Chief Justice assigns opinions if he is a member of the majority, Burger said he would try to work out language in a simple order that would encompass the concerns of all the Justices. That could be followed by a full opinion if they all agreed to it