The Brethren (53 page)

The long draft had two contradictory strains. First, Powell vented his resentment that the South had been forced to integrate, while the North ignored its own segregation. Powell proposed that the traditional distinction between segregation by law (as in the South) and segregation resulting from residential segregation be abolished. The Court should address the condition of segregation and inequality of education, whatever its origins. It should treat the North and South the same way—get out of the business of determining who "intended" to segregate children, and deal simply with segregation wherever it was found. This potentially radical proposal—agreeing essentially with Douglas's long-sought changes—was significantly tempered by Powell's other strain, an attack on busing. He called busing "the single most disruptive element in education today."

Powell agreed with earlier court decisions that school boards must, be forced to desegregate their schools, but he insisted that they be allowed to do it in their own way. Federal courts had no business forcing them to bus children. The neighborhood school was the foundation of
a
sound school system. He would direct school boards to adopt future policies to reduce segregation, but leave it to them to decide how. He did not imagine that many would choose busing. "Any child, white or black, who is compelled to leave his neighborhood and spend significant time each day being transported to a distant school suffers an impairment of his liberty and his privacy," he dictated.

Powell objected mainly to the busing of elementary-school children. He recalled seeing children on street corners in Richmond at
7:30
a.m
., bundled up, waiting in the cold for a bus. It made him shudder. The nearest school might be two blocks away and the child was going to ride ten or twelve miles to satisfy some judge's abstract notion of racial justice and equality. Powell felt that much of this was brought on by the Charlotte decision. He would cut back on it. That decision was ambiguous and internally contradictory. "A paste-pot job," he called it.

Two of his clerks suggested extensive changes. The draft was like a long letter to Powell's friends back home in Richmond, they thought. Powell was sensitive to the problem. He did not want it to be either an anti-busing or a pro-busing tract. He toned it down.

Brennan did not think much of Powell's dissent. He was even less enthralled, however, when Powell decided to call his twenty-page draft both a dissent and a concurrence— the latter because Powell agreed with Brennan that the case should be sent back to the district court for further hearings.

Brennan urged him not to publish, but Powell was not to be dissuaded.

Burger found little improvement in Brennan's second draft. The opinion gave the school board a theoretical but not a practical chance to prove its innocence. But he also saw another series of desegregation cases coming up to the Court presenting an equally explosive and vexing question —the power of judges to order city-suburb desegregation.

In Richmond, Virginia, a District Judge, Robert R. Merhige, Jr., issued an order merging the
70
percent black Richmond system with two adjacent,
90
percent white, suburban school systems into one huge metropolitan school system. The merger order involved relatively modest city-suburb busing, but it radically redrew school attendance zones across county lines.

Burger felt that the judge had vastly exceeded his power in creating a new school district that cut across political boundaries. In the Charlotte case the order encompassed both city and suburbs, but at least that had been one school system.

The Chief figured that he had a much better chance of winning the Richmond case than the Denver case. Blackmun was willing to join Rehnquist and him on this one. Stewart might have problems with the judge's sweeping order. That would be four votes. But Powell, who had served nineteen years on the Richmond and Virginia state school boards, would likely disqualify himself. Burger saw at least a
4
-to
-4
deadlock upholding the Fourth Circuit Court of Appeals which had reversed the district judge. The problem was that a
4
-to
-4
deadlock would leave the lower courts with no law on the subject. They would have nothing to apply to city-suburb busing plans that had been ordered or were being considered in Detroit, Boston, Dayton, Hartford and elsewhere.

Both Denver and Richmond cases posed questions about the power of federal judges to order sweeping remedies in school desegregation cases. But from the Chief's point of view, the Detroit case, which was working its way up to the Court, was preferable to both the Denver and Richmond cases. It was the best example of a judge exceeding his power.

Burger calculated that he had a much better chance of pulling in Stewart and Blackmun's votes in Detroit. And unlike the Richmond case, Powell would be able to vote in the Detroit case. Burger drafted a memo to the conference suggesting that the Denver and Richmond cases be put over until the next term, when they could be considered with the upcoming Detroit case.

"That son of a bitch," Brennan said. The Chief
’
s memo was a blatant, last-ditch effort to stop the Denver decision, and it was a poorly disguised attempt to sabotage desegregation nationally, Brennan believed.

Blackmun was also cynical about Burger's suggestion. The Richmond and Denver cases were difficult enough, taken separately. Suggesting that the Court consider it all as one package was clearly inappropriate. Burger was trying to stall the Denver case. Blackmun circulated a memo opposing Burger's proposal, and then he sent a second memo saying that he was inclined to join the latest
Brennan Denver opinion. He approved the idea of sending the case back
for more fact finding, and giving the school authorities another chance.

Brennan was overjoyed. Burger had overplayed his hand.

That left the Richmond case. Powell, as expected, disqualified himself. Douglas, Brennan, Marshall and White were willing to uphold the city-suburb busing order, but on this case, Blackmun would not go along. He agreed with the Chief and Rehnquist. To extend desegregation within a city or a school district was one thing. Redesigning school districts and redrawing political boundaries was unacceptable.

It was up to Stewart. Stewart felt that no city-suburb busing could be ordered unless a violation were shown in both city and suburban school districts. Although it was a close call, he did not believe the violation in the suburban district had been proven. Stewart was also deeply affected by non
-
judicial considerations. Public opinion was at stake. Just as the Warren Court decisions outlawing prayer in the public schools had eroded confidence in the Court, the busing issue was costing the Court dearly. People chose to live in certain neighborhoods because of the schools. Forced city-suburb desegregation was an attack on that freedom of choice.

The mainstream of society opposed forced integration of the schools when it meant busing. Stewart wanted the Court to keep that mainstream in mind wherever possible. To back limited city-suburban busing in Richmond could mean massive new long-distance busing in every major city in America. Stewart told his clerks that he had ridden the bus on the Charlotte and Denver decisions, but that Richmond was different. "It is where I get off," he said.

The Richmond plan looked dead unless Blackmun changed his mind.

In May, the liberal half of the Richmond decision— Douglas, Brennan, White and Marshall—tried to break the
4
-to
-4
deadlock. White drafted a long memorandum for Blackmun's benefit, documenting the reasonableness of the city-suburban desegregation. The judge's order in Richmond was a logical extension of the Charlotte decision, he argued.

Blackmun would not
budge.

Finally, conceding the deadlock, the Court allowed the case to be announced. The equally divided Court struck down the city-suburban busing in Richmond. But the decision would not be a precedent for other cases.

"Look at this, guys," Brennan called t
o his clerks when Blackmun finall
y sent around his formal join in the Denver case. It guaranteed him five votes. With Powell's technical concurrence in the remand, he had six votes.

Rehnquist was not taken in by any of Brennan's changes to get Blackmun's vote. In his dissent, Rehnquist accused the majority of taking "a long leap in this area of constitutional law." Under Brennan's opinion a single school board action in one part of town, Rehnquist said, could be the basis for a federal judge to order system-wide desegregation. In reality, he said, the Court was putting the school district in "federal receivership," to be run by a district judge.

That left the Chief.

Brennan expected him to write his own dissent or join Rehnquist's.

In early June, a short memo from Burger arrived in Brennan's chambers.

The Chief said he was going to concur in the result.

Brennan laughed. Frequently a refusal to join an opinion was an insult. But for such a vocal dissenter at conference to suddenly join the majority in any form could only be considered humorous. "Can you believe this?" Brennan asked his clerks, slapping the memo down on a desk.

They tried to figure out whether the Chief was engaged in some subtle ploy, but they couldn't find one. Burger provided the seventh vote.

The decision was announced formally on June
21.
The newspapers reported it as a
7
-to-1
majority for strong desegregation and busing orders in the Northern cities. The opinion was a primer for judges outside the South. It gave them the tools to order sweeping remedies. Substantial pockets of intentional segregation in any city made it a candidate for Southern-style desegregation orders and extensive busing.

Brennan found it hard to believe that he had actually won.

Rehnquist usually voted with Burger; they agreed on many things. But Rehnquist didn't share Burger's concern with appearances and formality. He was very casual. During the nice weather, he and his clerks sometimes ate lunch in one of the two enclosed courtyards. They brought their food in paper bags and simply enjoyed the sun and the outdoors. As they were picnicking in shirtsleeves one day, Burger's messenger, Alvin Wright, set up a small table with silver service and a white linen tablecloth. Moments later, Burger came out with his clerks. Burger, his jacket on, poured the wine.

Rehnquist and his clerks chuckled a bit. But as they gazed on the solemnity at the Burger table, Rehnquist's laughter grew almost uncontrollable. He and his clerks had to dash inside.

During his first term, Rehnquist worried some about what influence his clerks might have on his opinions. He had clerked at the Court after law school and had written a magazine article in
1957
alleging that most law clerks were generally "to the 'left' of either the nation or the Court." He described the bias as "extreme solicitude for the claims of Communists and other criminal defendants, expansion of federal power at the expense of State power, great sympathy toward any government regulation of business."

He mentioned the possibility of "unconscious slanting of material by clerks" when reviewing cert petitions. And though he had written that he didn't think clerks exercised too much influence in the actual drafting of opinions, he was careful when he got to the Court to write all the first drafts himself. Midway through his first full term, he realized that he had been wrong. The legal and moral interchanges that liberal clerks thrived on were good for the Justices and for the Court. Rehnquist grew to trust his clerks; they would not be so foolish as to try putting something over on him. And there was the question of efficiency. The clerks were helpful with first drafts. It saved him time, and helped focus his own thinking.

Rehnquist was known around the Court for his friendliness toward clerks. He learned their names, and found some of them as interesting as the Justices. He suggested letting the clerks into the Justices' dining room or setting up a lounge for both clerks and Justices. Those ideas got nowhere, but he did get a Ping-Pong table for the Court.

Rehnquist's clerks occasionally took a moment out to play basketball on the court in the upstairs gym, and since there was very little time, they often overlooked the rule against playing in street shoes. One day, at oral argument, Rehnquist's clerks noticed their boss whispering with some of the other Justices. He scribbled a note and summoned a messenger who carried it to where the clerks were sitting in the audience. They felt very important.

"We have just talked it over and from now on the rule against street shoes will be strictly enforced," the note read.

As the junior Justice, Rehnquist was in charge of the annual Christmas Party. It was
a
noisy party, and Rehnquist found it hard to get all personnel together for the carolling. Finally, he stood on a piano bench. "Achtung!" he shouted.

One clerk thought it was too good to be true. Rehnquist, the fascist. But most thought that it showed that Rehnquist had
a
sense of humor.