The Brethren (6 page)

The new Chief stepped to the podium from which the attorneys argued their cases to the nine Justices—without witnesses and without introduction of evidence.

Oral advocacy is an art, Burger remarked. He recalled that he had stood in the same spot when he was in the Justice Department, sixteen years ago, and had argued one of the most celebrated cases of the time for the United States government. The Solicitor General, Simon Sobeloff, had refused to argue a case that involved John Peters, a Yale University professor of medicine, who had been found disloyal and dismissed as a consultant to the Public Health Service
(
Peters
v.
Hobby).
The finding of disloyalty had been based on anonymous accusations. Sobeloff should have resigned, Burger said, rather than refuse to argue his client's case, even though the client was the government. Sobeloff had become a great hero to the liberals and civil libertarians. But Burger's Justice Department bosses were pleased with his loyalty. That was probably the reason, Burger said, why he was rewarded with a seat on the Court of Appeals three years later. He didn't mention that he had lost the
Peters
case.

Lingering now, and reminiscing, the Chief told them how he got the job as head of the Claims Division in the Justice Department in the fi
rst place. While acting as Stas
sen's floor manager at the
1952
Republican convention, he had helped the Eisenhower forces in a crucial credentials battle.

Burger pointed to the Justices' nine high-backed black leather chairs. Each Justice chose his own, and the sizes and styles varied. Some were nearly a foot taller than others. Douglas's was tufted, the others were smooth. It looked unseemly, disorderly, Burger said. In the future only one kind of chair would be available.

Still at the podium, his eyes fixed on the bench, Burger remembered an interchange with Justice Hugo Black during the
Peters
case. He pointed to the center of the bench. A question had come from
there,
and he was answering it when suddenly another question had come from the end. With the Justices all in a straight line at a straight bench, they could not see or hear each other. That situation should be changed he said, by curving the bench so each Justice could see his colleagues. The acoustics in the large room also were poor. That too should be corrected, he said, perhaps by installing microphones. The clerks fidgeted. Finally one of them suggested that the Associate Justices might be upset if the Chief went ahead with remodeling plans in their absence. Burger ignored him.

They walked to the outer corridor on the first floor onto which each Justice's suite of offices, known as
chambers,
faced. As they strolled along, Burger pointed out various problems—places in need of repainting, inadequate lighting; he would order a lighting study. There was poor utilization
of
office space; he would order a formal study of the use
of
space in the entire building. A few plants would bring life to the barren, gloomy halls. The telephone system was ancient, and the operators used old-fashioned plug-in switchboards. The cafeteria was old and run-down. There was no photo-copying equipment, so the junior Justices got unreadably faint carbon copies. There were no electric typewriters that produced print-quality letters and memos. Outside, the landscaping was lackluster, and the guards did not have the snap and attentiveness of those at the White House.

In fact, Burger concluded, the Supreme Court Building with its fine workmanship, its columns, its brass doors and best wood was as grand as the White House, but it had not been kept up. A top-to-bottom reorganization was needed. The nineteenth-century administrative system might be charming, but it was inefficient. The tour lasted two hours.

While on the Court of Appeals, Burger had enjoyed lunching regularly with his clerks. On July
21,
he took his Supreme Court clerks in his limousine to one of his favorite spots, the National Lawyers Club. The quiet atmosphere allowed him to unwind, to reflect and think ahead. That afternoon he was full of political reminiscences about Ike, Bill Rogers and Harold Stassen. He missed politics, he said. The press had been unfair to Ike, claiming he lacked intelligence, and to Stassen as well, making him a political joke because of his persistent and unsuccessful tries for the presidency. Newspapers manipulated the news to fit the editors' views. Take
The Washington Post.
For the last decade the editors had maintained a policy of keeping the names of the conservative and moderate appeals court judges out of the paper. At the same time the paper had played up the decisions of the liberals, especially Bazelon. The clerks were skeptical. The Chief insisted that a reporter recently departed from the
Post
had assured him that it was the case.
The New York Times
and the
Post
were anti-Nixon, pro-Bazelon and therefore anti-Burger. Both papers had attacked him. They were not reconciled to his appointment and would continue to snipe. The
Christian Science Monitor
had been ordered as the newspaper for his chambers.

His mood lightened, and he said he was happy with the way things were getting organized. He wanted to move his desk and other office furniture into the conference room and get settled in as quickly as possible. When the other Justices returned, they would be confronted with a
fait accompli.
Burger's clerks were astonished that he would try such a move without consulting the others. He seemed to be moving toward a needless confrontation.*

Back at his office, Burger saw another opportunity to accomplish something where his predecessor had failed.

* Burger dropped his plan to make the conference room his ceremonial office when he learned through his clerks that the other Justices were opposed. They felt the room was their sanctorum. But in the meantime Burger had moved an antique desk into the room and placed it in a "T" with the conference table. When he learned of their opposition, Burger compromised. He removed the desk from the "T" but also moved the conference table to one side of the room and his desk to the other. The presence of the desk in "our room," as Black called it, still irritated the others. But no one confronted Burger directly. Burger's desk stayed.

Warren and his Court had alienated Congress over the years, particularly the older, powerful, conservative committee chairmen, who didn't like the Court's decisions and resented Warren's aloofness.

Burger phoned Representative John Rooney, Chairman of the House subcommittee that controlled the Court's spending. Warren had said privately that the crusty, gravel-voiced, sixty-five-year-old Rooney was "dictatorial and vengeful." Burger decided to charm him. The Court needed more law clerks. Rooney told Burger that Warren had requested nine more, one for each Justice. That was too many, Rooney said. Three might be
a
more reasonable request.

Three would be fine, Burger said.

Rooney said that as a special favor he would see if he could get the House to approve the three additional clerks.

Burger thanked Rooney for the effort

Three days later, on July
14,
the House approved three new clerks, and Rooney took to the floor to praise the new Chief Justice. The country, Rooney told his colleagues, "is in good hands when we are in the hands of Chief Justice Warren Burger...."

At the Court, Burger told his clerks of his success. The lobbying and his willingness to compromise had paid off.

On July
29,
Burger decided to make a move to put
a
damper on Warren's recent drive to impose a rigorous code of ethics for federal judges. Warren's original interest had gained some currency in the wake of the Fortas affair. But it was a tempest in a teapot, Burger said. He drafted
a
strong letter to the lower court judge who headed a committee that Warren had set up to formulate a code of ethics. Codes of ethics merely drew undue attention to minor problems, Burger wrote, and they gave the press more ammunition to depict judges as crooks.

Newspapers had published details about
$6,000
in fees that Burger had received in the last three years as a trustee of the Mayo Foundation, which operated the Mayo Clinic in Rochester, Minnesota. The ethics question had been overheated both by Warren and the press, Burger felt. He was determined to cool it off.

In early August, the Chief turned his attention to selecting the three law clerks who were to be added to the Court. They were going to solve a problem—lack of staff. The
Court was flooded each year with thousands of petitions from people who did not have attorneys and could not pay the
$100
filing fee for review. The petitions might be jotted on notebook leaves or on scraps of paper. They were sometimes illegible and often incomprehensible.

These petitions constituted the bulk of the approximately five thousand that came to the Court each year. They were called
in forma pauperis
petitions, or "I.
F.P.'s." The Court got only one copy of each, rather than the forty that were required of those able to pay. Most of the I.F.P.'s were from prisoners who alleged a violation of their constitutional rights. All the Justices agreed that only a few petitions had merit, but Burger thought that all I.F.P.'s were a waste of time. In a
1965
Court of Appeals opinion
(Williams
v.
U.S.),
he had denounced the "Disneyland" contentions of those who had been found guilty and were still trying to get out of jail by raising technical objections.

The office of the Chief Jus
tice was responsible for these I.
F.P.'s. Generally, the petitions themselves did not go to each Justice. The Chiefs clerks wrote one-page summaries of each, and these were circulated to the other chambers. If the clerk who handled the petition believed the claim to be particularly meritorious, the whole petition might be circulated. The preparation of the summaries was tedious work, but the Warren Court had granted hearings in a few cases. They had in some cases been simply vehicles for the Warren liberals to "discover" some new right for prisoners or criminals in Burger's view.

As he was getting the Chiefs chambers organized, Burger's head law clerk reviewed a copy of a thirty-three-page set of instructions Warren had written for his law clerks that included a guide on how to prepare these I.F.P. memos. Burger's clerk edited the guide and sent it to the Chief for his okay.

Burger found no problems until he got to page
17,
the section dealing with the clerks' responsibilities in preparing the summaries of the I.F.P.'s. Such summaries, the memo said, should pull together and accurately set forth the facts, issues and legal arguments that each petitioner had tried to make.

"Your secondary function," Warren's memo said, "is to present the arguments which petitioner
could
make based upon the facts of the case. That is, inasmuch as the I.F.P.
petitioners generally do not have counsel, it is necessary for you to be their counsel, in a sense."

The Chief called in his head clerk. What's this? Burger demanded. This was a court, not the office of the public defender. That might be the way Warren's clerks operated, but it was not what his would do, Burger stated firmly. The Court was already overworked. It needn't look for more work. If some poor devil missed a point that might get his petition reviewed by the Court, well, that was his problem. In criminal cases, these people had already been found guilty and were looking for technicalities and loopholes to escape their just punishment
.
This secondary function would be
ignored,
Burger declared. Only arguments that had been identified by the petitioner would be summarized and sent to the other chambers.

Burger's clerks believed he had effectively devastated the Court's role as the last bastion of hope for these people. Without knowing any law, most petitioners had little chance of catching the Court's attention. The I.F.P.'s, however, were only one example, in Burger's view, of how law clerks had come to have too much power and influence.

He knew from his days at the Court of Appeals how clerks occasionally worked their little subterfuges. They could not be trusted to exercise proper judgment. Something had to be done about the clerk network. To combat this traditional underground inter-chamber communications system that Burger viewed as
a
rumor mill, he modified a memo on confidentiality from the previous term at the Court of Appeals. It was issued by his own senior clerk on August
12,
only to his own law clerks.

CONFIDENTIAL

law clerk memorandum— the confidentiality obligation

. . . The confidentiality is not limited to the minimum and obvious aspect of preserving the security of all information
within
the Court. Equally important is the private nature of everything that transpires in the Chambers of the Justice, including what he says, what he thinks, whom he sees and what his thinking may be on
a
particular issue or case.