The Brennan Memos

Brennan on Abortion
The law, lawyers, and the court.
Jan. 10 2007 2:12 PM

The Brennan Memos

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Part II—Abortion

So grave and important were the issues surrounding the death penalty that the justices put over their work in another landmark area that year. Roe v. Wade and Doe v. Bolton had come to the court in its 1971 term, challenging abortion statutes in Texas and Georgia. Just before the term began, the court's senior justice, Hugo Black, retired, then died eight days later. The same week, its beloved and principled conservative, John Marshall Harlan, succumbed to his failing health and retired as well. A shorthanded court thus initially took up what was to become the commanding issue of its generation. After a confusing debate in conference, Burger equivocated as to his own position, taking it upon himself to assign the opinions to Blackmun. Douglas objected—and, being Douglas, he objected testily. Still, the assignment stuck, and after five months of work, Blackmun circulated a draft on May 18.

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"It was," Brennan's history of the case bemoans, "disappointing to say the least." Blackmun had not reached the central question of a constitutionally protected right to an abortion, dismissing the Texas law for its vagueness rather than by asserting a protected right of choice. Blackmun had accompanied his draft with a memo indicating that he was still flexible. He then followed up his draft in Roe with a more extensive and, to Brennan, more acceptable, opinion in the companion case, known as Doe.

Brennan took that as an opening and used it to push Blackmun toward finding a fundamental right to abortion. Following memos from Brennan and Douglas, Blackmun circulated again. Brennan's history notes with satisfaction that Blackmun appeared to be edging his way toward asserting that a woman's "interest in making the fundamental personal decision" of whether to abort a fetus was "within the scope of personal rights protected by the Ninth and Fourteenth Amendments." Brennan was not satisfied, however, and continued nudging Blackmun for revisions. The liberals believed they were making progress toward an opinion they could accept, when in June, they were stung by a proposal to hold the cases over until the following term. "Justice Blackmun urged that it would be politically unwise for the Court to strike down both the death penalty (which he assumed it would) and the abortion laws at the same time," the history notes.

Brennan saw darker motives. The new term would bring two new Nixon appointees. There was also a political angle: "One suspects," the history darkly states, "that both he [Blackmun] and the Chief were also concerned about the impact of Wade and Bolton on the upcoming presidential election."

When the matter returned to the court in the fall, Brennan was downcast. "It is fair to say," that year's history notes, "that it looked extremely doubtful that there would be a majority for the position that restrictive abortion laws are unconstitutional." Brennan was notably a good vote counter, but his pessimism was misplaced. The vote at that week's conference was, his case history notes, "a surprising 7-2 in the Texas case and 6 to 2 (with the Chief Justice passing) in the Georgia case to hold the statutes unconstitutional." Only White and Rehnquist disagreed. Blackmun continued to draft, with Brennan gently pushing him, particularly on the question of when the state assumed an interest in a woman's pregnancy—at the end of the first trimester, for instance, or at the point of fetal viability. As Brennan pushed, however, he was self-consciously mindful of Blackmun's prickliness. "I do not mean to add confusion to such an admittedly complex problem," Brennan wrote his colleague, "but I offer these suggestions with the thought that logically—from both a medical and a legal standpoint—they might complement the excellent medical and legal discussion which you have put together in the opinions." Brennan, as he confided in his history, could be obsequious when it served his purposes.

The court handed down Roe v. Wade and Doe v. Bolton on Jan. 22, 1973. Although it was to become one of the most contested opinions in Supreme Court history, response initially was muted by that day's superceding news event, the death of former President Lyndon Johnson. But within days, the court was besieged by letters, 2,000 to 3,000 a day by Brennan's count, most addressed either to Blackmun, as the decision's author, or Brennan, the court's only Catholic. Some were supportive; many were fierce. Brennan shrugged them off: "I rarely read any of the letters and responded only to a select few."

Part III—The United States v. Richard Nixon

Testifying in July of 1973 before a Senate select committee, a former aide to Richard Nixon revealed that the president had tape-recorded calls and meetings in the Oval Office. A special prosecutor investigating the Nixon White House demanded the tapes, as did Congress. Nixon refused, citing executive privilege, and had the special prosecutor, Archibald Cox, fired.  

When Nixon relented to pressure and appointed a new prosecutor, Leon Jaworski, he too sought a subpoena for the tapes, and Judge John Sirica issued it. Nixon refused again and took his appeal to the Supreme Court.

The case arrived in the summer of 1974. Brennan was ready: He quickly began sounding out his colleagues for their early impressions of the case. "From discussions with my brethren about the issues as research proceeded, I early gained the impression that we were thinking very much along the same lines and for that reason, was encouraged that a unanimous opinion affirming Judge Sirica was entirely possible."

Bothered by the Nixon White House's suggestion that it would only obey a "definitive" ruling of the court, Brennan approached the justices individually to suggest a joint opinion, along the lines of the one it issued in Cooper v. Aaron, when a united court issued a historic command to Arkansas' governor ordering him to comply with its authority. Douglas, Marshall, and Stewart liked the idea. Powell and Blackmun were open to it, although Blackmun thought he should be the principal author. (He believed it would have more force coming from a Republican Nixon appointee, and that Burger should not author it, because he might be asked to preside over Nixon's impeachment.) White was skeptical of the idea, and Burger opposed it. Burger believed he should lead the court on an issue of such national importance—just as Earl Warren had written Brown v. Board of Education in 1954.

But Burger was no Warren, and Brennan worried about Burger playing the lead role in this case. "Compromises would be necessary before we could agree on a single opinion," Brennan realized after the justices' first conference on the case, "and the CJ [Chief Justice] had often displayed an unwillingness to change opinions he authors." This case, Brennan mused, called for a "delicate hand at the wheel."

Brennan resolved to play that role, initially by continuing to press for a joint opinion of the court. Though he failed in that, his proposal helped encourage various justices to tackle portions of the opinion. Brennan himself drafted a section on justiciability that Burger countered with portions of his own opinion. That backfired. Burger's work was, Brennan said, "wholly unsatisfactory to me," and also to other members of the court. Douglas, then Stewart, indicated that they preferred Brennan's draft to Burger's, and White won support for his analysis of a different question. No one, meanwhile, was prepared to join Burger's drafts as written.

So frustrated was the chief that he complained to Blackmun of the insurrection among the brethren. "It's my opinion," Burger told his colleague, according to Brennan's history. "They are trying to take it away from me."  Burger was right. "By Saturday, July 13, [Burger] had not responded to a single suggestion from the rest of us," Brennan's history states. So, Brennan asked White and Stewart to join him for lunch—he wanted Douglas there, too, but he had already departed for his summer home in Goose Prairie, Wash. Over that meal, the three crafted a strategy for fusing the work of various justices into a single opinion, one that barely drew upon Burger's writing at all. They agreed to use Blackmun's analysis of the facts, Douglas' section on jurisdiction, Brennan's on justiciability, and White's analysis of the presidential subpoena in the context of a criminal case. By Monday afternoon, Burger realized his work was in trouble: "My effort to accommodate everyone by sending out 'first drafts' is not working out," he acknowledged in a memo to the justices. Burger said he needed a week to polish his material and, apparently recognizing that he could not command a majority without incorporating the work of others, borrowed liberally from their writing in his next draft. Still, his work fell short of what the others wanted—one section in particular was "totally unsatisfactory to everyone," Brennan's history bluntly asserts, while a counterproposal by Stewart was vastly preferable. Brennan decided it was up to him to tell Burger that only Stewart's proposal would win the court, and he stayed late one night drafting a letter to Burger to that effect.

Just after 9 p.m., Burger showed up at Brennan's door. Brennan broke the news to Burger that his draft was unacceptable. "The Chief seemed surprised and then said casually" that he had already made some revisions, "thus ending, as he put it, 'the little word discrepancies' " between his own draft and Stewart's. The two walked down the hall to Burger's chambers, where Brennan read the new version. "Still in rough form, the draft had indeed not only jettisoned the entire [section] but indeed had accepted [Stewart's] approach hook, line and sinker, even using much of [Stewart's] wording verbatim. … The fight was over. I was enormously relieved and delighted and told the Chief so."

The court handed down its opinion rejecting the president's claims of his effective immunity from the court and, thus, the law. Nixon complied with the order to turn over the tapes, and resigned the presidency on Aug. 9. So amazed was Brennan by Burger's about-face acceptance of the changes to his draft that Brennan added a postscript to his history of the Watergate tapes case. After stories appeared in the press hinting at the divisions within the court over the opinion, Burger circulated a memo, typical in its prickly exasperation and in its odd use of quotation marks around meaningless phrases. "We are all hardened to the nonsense peddled as 'inside information' by some reporters," Burger wrote and Brennan recorded, "and with our 'vows of silence' there is nothing we can do about it. All of us know that from the day of our Conference on July 10 we were in accord on every major point and that our only differences (and few they were) related to semantics and detail, not substance." Brennan memorialized that with undisguised bemusement: "The reader of this history must decide for himself whether he shares the opinion of the Chief Justice … ."

Jim Newton, a reporter and bureau chief at the Los Angeles Times, is the author of Justice for All: Earl Warren and the Nation He Made, released last fall .

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