Brennan on Burger

When Earl Warren relinquished the chief justiceship of the United States in 1969, he had reason to fear the worst. He gave his vacancy to the man in politics he most despised, President Richard Nixon, a man determined to undo Warren’s work. Not surprisingly, Nixon set out to reconstitute the court along the lines he had promised during the 1968 campaign, and by the beginning of 1972, four of the Supreme Court’s nine justices had been placed there by Warren’s nemesis. The retirement and subsequent death of William O. Douglas in 1975, the court’s uncompromising and cantankerous liberal, gave Republicans a solid hold on the majority—and thus, it seemed, on the future.

And yet, the counterrevolution predicted for the court in the Nixon-Ford years never materialized. Instead, the liberals held on, protecting and in some cases extending the civil liberties’ edifice erected by the Warren Court. That remarkable—and, to some, infuriating—achievement was the result of many forces: Warren Burger proved singularly incapable of leading the court, while Justice Harry A. Blackmun, advertised as Burger’s “Minnesota Twin,” instead emerged as an independent centrist. But one factor stood above all others in those years: the subtle, effective leadership of Justice William J. Brennan Jr., who guided the court’s dwindling liberal bloc to influence well beyond its votes and solidified the work of the Warren Court into a set of accepted norms of American life.

The story of Brennan’s work helps explain why conservatives still feel that despite Republican domination of today’s court (seven of its nine members were appointed by Republican presidents), their cause does yet not prevail there, and why the appointment of Harriet Miers so enraged them. It illustrates why the nomination of Samuel Alito was so tensely contested and why the court’s current term is being closely watched for signs that the break back to the right may at last be at hand. The legacy Warren built and Brennan protected includes: the elevation of federal authority over state power; the protection of a robust press; the insistence on desegregation, then integration of public services and facilities; the development of rules of criminal procedure to protect suspects and defendants; the insistence on voting equality; the enshrinement of a right of privacy and its application to abortion. Today, the ideas Brennan successfully defended—ideas so controversial at the time—set the parameters of much American debate.

How Brennan achieved what he did is understood mostly in the abstract. But his methods warrant closer scrutiny. Many of his papers—including a set of extraordinary annual memoranda documenting the court’s work from the perspective of Brennan’s chambers—have been largely kept out of public hands, stored at the Library of Congress but protected by conditions Brennan placed upon them and yearned for by scholars. Before he died, however, Brennan’s son, William J. Brennan III, allowed me access to his father’s papers, including those memoranda. They are a historian’s trove.

The memoranda initially were modest efforts to record the negotiations on cases in which Brennan wrote; later, they were more elaborately styled as “case histories.” They vary in style and approach—some exceed 150 pages, a few come in at less than 25; in some years, Brennan’s clerks drafted the histories in their voices; in others, they were written in the first person, as recollections of Brennan himself. But they share the common aspect of observing and revealing the high court as Brennan saw it—”as accurate as possible a record of what we accomplished each year,” said Robert M. O’Neil, who clerked for Brennan beginning in the summer of 1962. And together, they provide a running account of the Supreme Court’s history through one of its most fascinating periods, as the work of the court unfolded amid a tense and sometimes angry nation. As Brennan’s son told me a year before he died, the story those papers tell of the Burger Court period is that of the “greatest rear-guard action in the Court’s history.” Slate here presents these documents, most for the first time, as originals, with my own gloss.

Part I—The Death Penalty

William J. Brennan Jr. was, even to those who opposed him, delightful. Born in 1906 in Newark, N.J., he was the child of Irish immigrants, a Catholic like his parents, son of a labor leader and politician, second in a line of eight brothers and sisters. He was a New Jersey Supreme Court justice when Dwight Eisenhower picked him for the U.S. Supreme Court in 1956, and his early years there were productive and happy, eventually coalescing into history’s Warren Court.

That ended with Warren’s retirement in 1969 and Richard Nixon’s appointment of Warren Earl Burger to succeed him as chief justice. Burger was mirror image to his predecessor in more ways than their curiously transposed names. Where Warren was friendly and garrulous, Burger was pompous and aloof, preoccupied with the trappings of his office. Brennan took an instant dislike to him. Burger’s first term was one of missteps, which Brennan gleefully recorded in his histories for that year. Brennan’s clerks cite Burger’s isolation in one case and confusion over his position in another. One Burger opinion was described as “clear only as to the result.” In describing a customs case involving the power of the government to conduct strip searches at border crossings, the history states: “The Chief’s first circulation—typed—appeared on May 26 and ranked among the most ludicrous of his many ludicrous circulations of the year.”

Brennan viewed Burger as “blinded by emotion” in one labor case, and when Burger attempted to analyze the First Amendment’s application to obscene material, his “disingenuous treatment” of the matter was “too much to bear.” Examining one particularly exasperating Burger opinion, Brennan’s history practically sighed. “[T]he ways of the chief,” it notes, “are oft mysterious.” Even Burger’s grammar and punctuation came in for contempt: Typos in Burger’s drafts were highlighted with a sic. It was Brennan who had nicknamed Warren “Super Chief.” He demoted Burger to “Chiefy.”

Burger tried his best to marginalize Brennan, but he was difficult to contain. When the 1971 fall term began, for instance, it seemed clear to Brennan that the court would uphold the death penalty against challenges that its imposition was cruel and unusual. But as the justices began to discuss the issue, Brennan reported to his clerks that “there might be more dissenters than he had thought.” While Burger, Lewis Powell, and William H. Rehnquist all supported capital punishment, Brennan, Douglas, and Thurgood Marshall seemed clearly inclined against it. Brennan suspected Byron White, Blackmun, and Potter Stewart would likely control the outcome; he also held out hope for Powell.

Over the next six weeks, Brennan and his clerks roughed out a draft arguing for abolishing capital punishment as it was practiced by the states because it was physically cruel and so rarely and arbitrarily imposed that it violated the Constitution’s prohibition against “unusual” punishments. It did not go as far as Marshall would have liked, but it was crafted to appeal to the moderates in its arguments and to the liberals in its conclusion. A section examining the role of judicial review in assessing the death penalty was drafted specifically to win Powell’s vote, as he had raised that issue in conference. Brennan sent a private draft to Stewart and White. Stewart “said he thought it was excellent,” Brennan’s history notes, “but [White] said nothing.” On March 29, he sent his final draft around.

Responses trickled back, some from the justices themselves, others through the clerk network. Stewart appeared likely to join Brennan. Douglas was unusually quiet, and the clerks heard that Powell was writing an opinion of his own. Burger circulated his own opinion supporting the death penalty on April 24, and it received the customary mocking in Brennan’s chambers. The chief’s position, as one clerk noted in the history, came down to the promise that “[t]here will be no boiling in oil so long as this Court sits.” In consultation with Stewart, Brennan and his clerks rewrote parts of their draft, honing their arguments and trolling for the one vote needed for a majority. At the justices’ conference on June 9, Burger announced that he counted five votes for upholding the death penalty, while Blackmun said he counted five votes for striking it down. Both tallies included White, yet White “never said a word.”

Then, on June 13, Stewart’s clerk “called to say that there would be a real surprise very soon. The surprise arrived at 4:00.” It was two opinions, one by White and the other by Stewart. Brennan took them in his office and read them aloud. Neither White nor Stewart was prepared to declare the death penalty unconstitutional, but they agreed that it was invalid as applied, and voted to strike it down. Brennan had found his votes.

Brennan had one last fire to extinguish. Douglas already had left for summer but sent word that he intended to write a separate opinion accusing White of hypocrisy in light of his previous writing in favor of the death penalty. Brennan worried an attack from Douglas might push White back into the other camp. “We [didn’t] want Douglas messing things up,” his history states. When it arrived, Douglas’ opinion was a “rather violent attack” on both Stewart and White, so Brennan’s clerks interceded and “were successful in toning it down.” The fragile coalition held. Brennan was elated: He “couldn’t get over the fact that at this time last year there was only one vote—his—against the death penalty.” His work had cobbled together justices of varying views and had achieved an extraordinary result. “It was all over at last,” Brennan’s history of the cases concludes. “We kept pinching ourselves to make sure it had really happened. It was a great day for the country.”

Click here to read some of Justice Brennan’s memos.