The Brethren (13 page)

It was late one Friday afternoon, and Burger was exhausted. A grueling, day-long conference had just ended. Unlike his colleagues, the Chief couldn't now go home immediately. He had to make sure that the conference actions on the approximately one hundred cert petitions that the Justices considered each week were given to the Court's administrative personnel. Burger hated this chore. It was work proper for a clerk or a secretary, not for a
Chief Justice. And it was hard to participate fully in the arguments, lead the discussions, and at the same time keep precise track of the Justices' votes and positions. Since no one other than the Justices was allowed in the conference room, he had to do it alone.

After each Friday conference, Burger would call in a law clerk, a secretary, and the Clerk of the Court. Seated at his ceremonial desk in the conference room, they would go over the results. Three times early in the term, the published orders had incorrectly identified cases that had been accepted for full review. In fact, the petitions had been denied, and so public retractions had had to be made. The press had noticed the errors. The Chief's secretary and his law clerks had tried to help by preparing elaborate briefing books, so that the Chief had only to fill in the blanks with check marks. But it didn't seem to solve the problem. He was still making mistakes.

"Any dumb ass could pick it up," the Chief's secretary once remarked privately.

The Clerk of the Court couldn't understand it, either. Even Chief Justice Warren, notoriously bad at record keeping, learned to keep track of what went on at conference. Burger's chambers solved the problem whenever they were uncertain by calling Brennan's secretary to have her check Brennan's meticulous records.

After the votes had been given to the Clerk of the Court, Burger went into his working office to finish another task, one he enjoyed. The Chief spread a large sheet of plain butcher paper in front of him on the desk. Across the top were listed the names of the Justices. Down the left side were the names-of the cases heard so far that term. The sheet was Burger's most powerful tool in controlling the Court. It represented the work load of each Justice. By tradition, the senior Justice in the majority at conference selected the Justice who was to write the court opinion for the majority. Since the Chief was considered senior to all the others, he made the assignments when he was in the majority. Burger was careful, in his first term, to make sure that he was in the majority most of the time—even if he had to adjust his views. Leadership in the Court could not be exercised from a minority position, he felt.

Since the Chief assigned most of the cases, he was also responsible for keeping the majority-opinion assignments as evenly divided as possible. With only about
120
cases that required full opinions, including several that were unsigned
per curiams,
the power to select the author—to choose, for example, Harlan or Stewart instead of Brennan or Marshall—was the power to determine the general direction of the opinion. Often, the reasoning was as important as the finding itself. The lower courts would draw on the opinion for guidance as they made their decisions. Burger reasoned that by assigning the cases, he—as Warren had done before him—could control the Court and influence the entire federal judiciary. The process would take years, and it would have to be done a step at a time. But each assignment that he controlled was an important step.

Burger carefully made sure that important cases in criminal law, racial discrimination and free speech were kept away from Douglas, Brennan and Marshall, his ideological "enemies," as he called them. If necessary, the Chief would switch his own vote to retain the assignment power, thus preventing them from writing ground-breaking decisions that expanded the Court's power or extended the application of liberal Warren Court decisions. Instead, he assigned them innocuous cases where their opinions couldn't have much impact.

Of those most likely to share his views, the Chief at first found Byron White the most compatible. White was also the most physically impressive. At six feet two and a trim
190
pounds, he was still like the tough University of Colorado football AU-American who had become the National Football League rookie of the year in
1938.
White won a Rhodes scholarship and then entered Yale Law School, where he passed up
Law Review
to earn money as the highest-paid professional football player of his day. Stewart, a classmate at law school, often saw White in the library in his steel-rimmed glasses, only to read about him in the next day's paper as the game-winning "Whizzer White." To Stewart and his classmates, White was both Clark Kent and Superman.

White clerked a year at the Court for Chief Justice Fred Vinson, and renewed his friendship with freshman Representative John Kennedy, whom he had known in England and later in the South Pacific during World War II. White's fifteen years of law practice in Denver ended when he ran a nationwide Citizens for Kennedy committee during the
1960
presidential campaign. He was rewarded with the post of deputy attorney general as the number two man in Robert Kennedy's Justice Department. A year later, President Kennedy appointed White to the Court, saying that White "had excelled in everything he had attempted."

White was an aggressive Justice, relentlessly pressing his clerks to clarify their own, and thus his own, arguments. Never relaxed, always competitive, White loved to race his clerks to complete the first draft of an opinion, or to interrupt them for a basketball game on the Court's fourth-floor gymnasium, which the clerks called "the highest court in the land."

White's positions were clear and vehement. They seemed to his colleagues to come directly out of his practical experience in the Justice Department. He was tough on the enforcement of both civil rights and criminal justice. And it was this last hard line that delighted Burger. The press repeatedly pointed to White as a disappointment to the liberals. Poker-faced, sometimes harsh, but confident and capable in the law, White was only fifty-two and likely to be an influence on the Court for years to come. Even when they disagreed on criminal cases, Burger could count on White to write an opinion reasonably close to his own views. Burger put a check under White's name for a criminal-case assignment.

The law clerk working with Burger was puzzled. Burger was in the minority on that one, the clerk reminded him; therefore, the assignment was not his to make.

Burger checked his vote book. No he was not in the minority, he replied.

"But before going to conference you said you would not vote that way," the clerk said.

"I never said such a thing," Burger said crisply.

Moving on to another criminal case, the Chief assigned it to himself. With his vote it would be unanimous, and he wanted to assign himself as many unanimous decisions as possible. That would make it clear that he was leading the Court, and that everyone was falling into line with his opinions, that no one was dissenting or criticizing his work.

Excuse me, Chief, the clerk interrupted once again. How could he have been in the majority for a reversal of that conviction? This time the clerk was certain. The Chief had given his clerks a briefing after conference and had said he was for upholding.

"That was a tentative vote," Burger replied firmly.

At the next Thursday session, before the Friday conference, Burger and his head clerk reviewed the cases to be discussed. Burger stated that he would vote to reverse a lower court case.

After Burger left, the clerk sought out another of the Chief's clerks and explained what their boss had just said he would do. "If he comes back and denies it," the clerk said, "I want you to know that he said he would do it. And when he denies it, I want you to tell me that I'm not losing my memory." But Burger held to his initial position.

Once, the Clerk of the Court approached one of the Chief's clerks. "I've been meaning to ask you something for a week," he said. "I often find my recollection differs from the Chief's. Does yours?" Burger's law clerk said he was familiar with the problem and recalled some stories about conference votes and record keeping.

No, the Clerk of the Court said, he knew about that. But he was talking about the Chief's habit of reminiscing and placing himself at the center of events—saying things, doing things and making decisions all of which had been said, done or made by someone else.

After White, the Chief felt most ideologically compatible with Harlan, then Stewart, and in some cases Black. After so many years as a leading liberal, Black had in recent years become increasingly conservative. He was living proof that events were pushing people to the political right, the Chief felt. Liberalism was an experiment that had largely failed, and now one of the arch-liberals was moving back to common sense.

The criminal cases were going to be the guts of the battle at the Court, the Chief figured. This had been clearly spelled out by the President and emphasized by the press. The country had spoken in electing Nixon on a law-and-order platform. In the heated rhetoric of the day, Nixon had campaigned to help the "peace forces"—police and prosecutors—in their battle against the rising crime rate. He had especially criticized "coddling" of criminals by "soft" judges.

Burger's analysis was more sophisticated. He agreed that many of the changes in the criminal justice system brought about by the Warren Court, such as protecting suspects from police-coerced confessions and giving defendants legal counsel, were long overdue. An American Bar Association committee that Burger had chaired while he was an appeals court judge had gone further in its recommendations for providing lawyers for poor defendants than any decision of the Warren Court. But Burger did not think the route to reform was necessarily through Supreme Court decisions. From the outset he thought that if he was going to have an impact and make lasting contributions, perhaps be revered, he would have to help reform the criminal justice system through administrative change. Speedier trials must be provided defendants. The state judges and the committees and commissions the Chief Justice served on or controlled had to be redirected to support reform.

Burger would then have to lend his prestige, his time and his energy to that huge administrative task. That meant giving speeches, going to conferences and making his views known to Congress. From the beginning, he realized there would be no instant shift in the Court's jurisprudence, even when Nixon appointed another conservative to fill Fortas's seat. For now, Burger would conduct a holding action, which was necessary to ensure that the Court wrote no sweeping new rules to hamper law enforcement. He would accomplish more by lobbying than by writing opinions, he felt.

Some cases now before the Burger Court had been filed in the closing days of the Warren Court. A few had apparently been singled out to refine and extend major Warren Court decisions. One case,
Bivens v. Six Unknown Named Agents,
particularly troubled Burger. Bivens was claiming that he had a right to sue and obtain money damages from federal agents who had broken into his home illegally, without a search warrant. Since they could maintain that they were acting officially, federal agents were normally immune from such suits.

Burger did not want the Court to open another whole remedy for alleged law enforcement abuses. And he was worried because there were five votes to hear the case, one more than the required four. Since the lower court had held that there was no right to sue, it was likely that the five who voted to grant cert wished to reverse the lower court. Burger felt that that would be a disaster. He was not firmly opposed to allowing such suits, but the Court should look at the entire problem of how to handle illegal police searches. The Court should take a range of cases, perhaps allowing damage suits but at the same time lifting some of the Warren Court's restrictions on police powers. Two of the five votes were those of Harlan and Stewart. Burger decided to appeal to them personally to withhold their votes.

Burger went to Stewart's adjacent chambers. He explained that he had a request to make in the case about civil money-damage suits against federal agents. A decision establishing such a right would be judicial activism at its worst and would add to the case load. Worse, it would be seen as another slap at the police, one more judicially mandated shackle on those fighting crime.

Stewart had no burning passion for the case, and he wanted to get along with the new Chief. Ten years of languishing under Earl Warren inclined him to agree. Obviously, Burger cared very much. He had come to ask a personal favor, so Stewart said yes. He would withhold his vote for the time being.

That left Harlan. Burger phoned ahead to see if Harlan had time to talk about an important matter. Harlan said, "Of course."

Harlan's office, one third of the way down the north corridor, was brightly lighted. Special high-intensity lights had been installed to aid his poor eyesight.

Burger sat down and outlined his request.

Harlan said he hadn't thought so at first, but now he thought the Court should hear the case. Innocent persons not charged with a crime should be able to sue federal agents who had violated their rights.
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