The Brethren (10 page)

The way Burger analyzed the conference discussion, the main obstacle to a unanimous decision was Black. Douglas was following his lead. They were alone in insisting that the Court should order desegregation now and that no opinion should be written, points on which even Brennan and Marshall seemed open to compromise. If they could be kept from joining Black, then Black would almost certainly back down, despite his rhetoric in conference. Burger needed first to put together a consensus opinion with Stewart and White, whose views were closest to his own. From their comments about the need to be realistic, Burger felt that he could go along with anything they might decide on. Harlan was the next available vote. He might want to use stronger language, might be more inclined to fix a firm deadline for implementation. Both would be okay. Harlan might be able to draft something that would draw Brennan and Marshall over to their side.

After the conference, Burger met with Harlan and Stewart and asked for their help. They had been through this process before, working with widely disparate views, attempting to reach a common ground.

Harlan said that he resented Black's threat to break unanimity by dissenting. It amounted to "blackmail." He was perplexed by Black's unrealistic solution. The Court couldn't snap its fingers and create desegregation. He could see that Black was up to his old tricks, saying "Here is where I stand," and professing indifference to the others' views. Burger asked Harlan if he would draft a possible order for the Court to issue. He wanted Harlan's thoughts as a starting point.

Harlan went to his chambers to work. Normally, he would have a clerk prepare a first draft. This one he did himself. His grandfather's picture looked down on him from the wall opposite his desk. Harlan's face almost touched the paper as he pushed a ball-point pen across the pad. The writing was hardly legible.

"Proposed Order and Judgment," he wrote at the top.

'The question presented is one of paramount importance.
...
In view of the gravity of the issues and the exigency of prompt compliance with the Constitution, we deem it appropriate to enter the following order." He paused and added, ". . . with the opinion of the Court to follow this order." There simply had to be an opinion.

"The Court of Appeals
...
is reversed," he wrote, saying that the Court of Appeals should determine '"forthwith" if the original H.E.W. plans were "adequate and reasonable interim means"—that was for realists like himself—"to achieve immediate desegregation." That last phrase was for Black.

But when should the order be implemented? The question had been left up in the air at conference. It wasn't clear that a single deadline could be set. Some school systems might be able to desegregate immediately.

"The earliest possible moment," Harlan wrote, adding,

"and in no event later than , " He left

blanks. An outer limit probably should be set, perhaps midyear, but there had been no consensus.

The two-page order was immediately sent down to the Court's printing shop in the basement. Even the most tentative drafts were generally printed and copies distributed to the other chambers. Early printed drafts in cases were never released, only the final ones.

The next morning, Saturday, October
25,
most of the Justices came to the Court. Black stayed home.

The Chief asked Harlan and White to his chambers to go over Harlan's draft. Burger and White had also drafted possible orders. With a few changes, however, Harlan's draft served as the basis for their agreement. They decided to leave the implementation date open, to be decided by the Fifth Circuit, since any date the Court set could be seen as a retreat. Burger then sent a memo to the other Justices telling them that Harlan and White and he had met and that this was their submission.

CONFIDENTIAL

Memorandum to the Conference

Justice Harlan, Justice White and I met today and working from three rough, preliminary drafts of alternative dispositions developed the enclosed order to be followed by an opinion.

The draft reflects not necessarily our final view but a "passable" solution of the problem.

We have concluded, tentatively, to avoid fixing an "outside" date. I am partly persuaded to do this because of the risk that it could have overtones which might seem to invite dilatory tactics.

[Signed] WEB

When Brennan, Marshall and Douglas reviewed the proposed order, they agreed that it simply was not strong enough. The order would have to be improved before they could find it palatable, and certainly it was not going to be acceptable to Black. Marshall had been willing to compromise as long as there was an implementation deadline that insured desegregation by the next semester. But now he thought Black might be right. His insistence on "now" might be unreasonable, but it was quite likely the Court's best posture. It might be best to send a shock-wave message. An impractical order directing desegregation "now" might underscore the Court's seriousness. Also, Marshall reasoned, such an order would certainly mean desegregation by the next semester.

Marshall was also concerned that he not end up on the wrong side of a Black dissent. He did not want to be in a position where another member of the Court was claiming that he, of all people, was backing down. What the newspapers said the day after the Court issued its decision would be important. Marshall had to protect his position. He instructed his clerks to begin work on an opinion. At the same time, he did not want to lose touch with the others, so he sent one of his two clerks to talk with Harlan's clerks, to see if some compromise could be reached.

Meanwhile, Brennan decided that he too had to do something. Black, Douglas, Marshall and he could not let the more conservative quartet of Burger, Harlan, Stewart and White control the outcome by having the only drafts in circulation.* In phone conversations with Black, Brennan became convinced that Black was adamant. The collective liberal position would have to be largely Black's if they were going to act as a bloc. Black's view was appealing. The Court had to be tough and dramatic, perhaps a little unreasonable, in order not to appear to be buckling.

After talking it over with Douglas and Marshall, Brennan threw himself into composing a draft order. He wrote that desegregation according to the "all deliberate speed" standard "is no longer Constitutionally permissible. The obligation of the federal courts is to achieve desegregation
..
. NOW." The H.E.W. plans could be used if they achieve desegregation "immediately." Desegregation was the status quo.

In order to expedite action, Brennan wrote, the Court of Appeals "is requested so far as possible and necessary, to lay aside all other business of the court to carry out this mandate." Such a request from the Supreme Court was unusual. It would impress everyone with the urgency of the matter and the extent of the Court's commitment.

Black was home on Sunday, October
26, 1969,
studying the Chief's proposed order. He thought it awful. He liked Brennan's proposal, which reflected his own arguments from conference two days earlier. Perhaps the others had not taken his threat to write a dissent seriously. Black decided that he had better make good on his word, and he began writing. Beginning with a history of the
Brown
decision, renewing his attack on "all deliberate speed," Black

* It was still an eight-man Court since no replacement for Fortas had been confirmed by the Senate.

scrawled his message across a yellow legal pad in large crooked letters: "It is almost beyond belief that the factors mentioned by this Court in
Brown II,
to permit some slight delay in
1954,
are precisely the same considerations relied upon in this case to justify yet another delay in
1969."

Criticizing the use of the word "interim" in the Chiefs order, he wrote that

any talk of interim orders necessarily implies that complete total and immediate abolition of the dual school system need not come about and the phrase "the earliest possible time" is ominously reminiscent of the phrase "as soon as practicable" used in
Brown II.

The time has passed for plans and promises to desegregate. The Court's order here, however, seems to be written on the premise that schools can dally along with still more and more plans. The time for such delay I repeat we have already declared to be gone....

I would have the Court issue the following order.

Black attached a copy of Brennan's order.

In case anyone missed the import of what he was doing, Black drafted a cover memo to the conference. He had it sent to the Court and printed, with a copy for each Justice.

The letter from the Chief Justice circulated in connection with the proposed order and judgment in this case suggests that the proposal now has the approval of three members of the Court.

It is possible that this proposal will obtain
a
majority and that the Court may want to issue the order on Monday. Should that be the case, I would not want to delay such action, but will dissent as I have in the opinion circulated herewith.

While a dissent at this time may seem premature, this procedure has been followed only to avoid further delay.

One more thought should be added about the Court's suggestion that a Court opinion will later follow this order. I am opposed to that. There has already been too much writing and not enough action in this field. Writing breeds more writing and more disagreements all of which inevitably delay action. The duty of this Court and of others is too simple to require perpetual litigation and deliberation, that duty is to extirpate all racial discrimination from our system of public schools NOW.

When Harlan read Black's memo late Sunday afternoon, he was deeply upset. Black wasn't circulating it to avoid delay; he was making a simple power play. Obviously they all wanted unanimity. Black was telling each of them that they were going to have to deal with him to get it.

Harlan hadn't discussed the case with Black after the conference, nor did he want to discuss it with him now. Black was dug in. Discussion would only aggravate matters. The only hope was Brennan and Marshall. Though they seemed to have joined Black, perhaps they could be peeled away. Harlan phoned Brennan. Black was just being unreasonable, Harlan said. The differences among them were not that great. No one, including the Chief, was really trying to stall desegregation. They all agreed on the need to speed up the process; the question was simply how to be most effective. Harlan was willing to go along with something stronger, more emphatic, than the Chief's proposal. Burger's memo made it clear that the draft was not a final view.

Brennan agreed that Black was being unreasonable. But it was essential to maintain unanimity, and Black was not bluffing. He would dissent from anything less than a strong command to desegregate now.

Now Harlan foresaw an uphill struggle. He detected a tone of skepticism in Brennan's voice. That meant that Brennan and no doubt Marshall were firmly with Black and Douglas. Harlan knew that Brennan's ties to Black were strong, certainly more important than Brennan's to him. During the
1960s,
Brennan had won votes from Black, Douglas and Marshall, but not many from Harlan, whom Brennan considered conservative. But Harlan was certain that he himself was as strong a supporter of desegregation as anyone else; it was simply that determination had to be tempered by an understanding of the practicalities, crucial to public acceptance of the Court's school opinions. He saw himself as an arbiter, and now he decided to make a last effort in that role.

The Chief was alarmed at Black's memo and his threatened dissent. If the Court's unanimity broke apart on a school case, particularly so early in his tenure, he would be declared an instant failure. He and the Court might never recover. The press would compare him unfavorably to Warren, who had held the Court together for fifteen years on these cases. They would say that the Court had collapsed in the first month of Burger's first term.

From his years on the Court of Appeals in Washington, Burger knew that circulating draft proposals forced the others to deal with the writer and his draft. It structured the debate on the writer's terms, allowing concessions to be made while preserving the over-all thrust.

Burger didn't like Brennan's proposed order. It didn't seem responsive to his own original proposal. The differences didn't seem reconcilable. Burger knew that Harlan, Stewart and White were irritated with Black's memo and his proposed dissent. There was little that Burger could do about the order now. That was something for the others to work out. For the sake of unanimity, he would go along with anything they could all agree on. Burger turned instead to getting out his draft opinion, the more detailed explanation of the Court's reasoning. It could serve as a basis for uniting all of them. "I'm going to write an opinion that everyone will agree on or it will be a long time before there is anything in this case," the Chief told his clerks. It wasn't a threat. He was simply determined to show leadership.