take out some insurance on me, baby, baby
it's just the i'm busted and dripping,
my sorry lungs are all leaking,
it's all over, it's all over i said,
the last fair deal going down.
you let your gown to the ground,
but i'm not waiting around until the kiss-off.
wasn't it you who said yeah you can shoot me lightly,
but ask me to be excused, i won't go die politely
anytime that you want you can shoot me lightly,
but ask me to be excused, i won't go die politely.
justice brennan, i know it's not your fault,
no baby no baby.
it's just that you're busted and dripping,
your sorry lungs are all leaking,
it's not over, it's not over, i said.
here comes the kiss-off."
-Fugazi, "Dear Justice Letter"
This song was written at the end of the Supreme Court term in 1990, after Justice Brennan retired. He had served more than 33 years on the Court, and was 84 years old at the time of his retirement. He died seven years later. It would be quite uncharitable for Fugazi to claim that Brennan quit too early, and indeed I do not think that is the point of this song. Rather it appears to be a lamentation of the reality that the Court now had replaced Brennan, one of the strongest liberals in the history of the Court, with Souter. Now Souter was somewhat unpredictable--but President Bush appointed him on the theory that he would be a "good right-wing vote." Clearly this was not the result in many cases, but the Court appeared to be deprived of all its hard-line liberals: only Thurgood Marshall was left. Harry Blackmun had skewed liberal as time progressed, and John Paul Stevens was essentially liberal, but by no means a "solid vote" for that side every time. Sandra Day O'Connor was, like Souter, a Republican in name but perhaps the most ideological "centrist" on the Court. While some of this may be interesting to general readers, this post is not intended as political commentary. It is a review of The Brethren, which concerns a different Court--the Warren Burger Court from the 1969 through 1975 terms. Now, I am studying for my First Amendment Law exam on Wednesday and some may view this review as a waste of precious studying time, so I hope you will forgive me if I skew heavily in favor of First Amendment cases so that, when I return this book to the library, I will at least have this post as a sort of "back-up file."
The first and most obvious thing to mention about this book is that it is written by 1/2 of the notorious duo responsible for All the President's Men, as well as for breaking the Watergate Scandal story in The Washington Post. And it is quite wonderful that Bob Woodward has stayed active in the arena of political reportage. It is always interesting to see what he has to say. I must concede that I read All the President's Men when I was a senior in high school, for a course in journalism, and that I was unable to appreciate most of the action that took place during those tense months in Washington. I must also concede that I am a huge fan of the film Nixon and that I am still somewhat mystified by the extraordinary distaste that the vast majority of American society has for that former President. Indeed it appears to me that he had no reason to lose the 1972 election, had no reason to "cheat," and was simply a rather insecure candidate who was poorly advised. Frost/Nixon paints quite a different portrait of the man than the Oliver Stone biopic does. But again, we must address the book at hand, not a political situation.
This connection between these two books is significant, however, because Woodward & Armstrong express rather uncharitable views on Warren Burger. They glorify Earl Warren as a hero, and indeed so does almost everyone I have ever heard utter his name. By all accounts, he was perhaps the greatest Chief Justice in the history of the United States Supreme Court. And after reading The Brethren, most readers would be easily inclined to view Warren Burger as the worst Chief Justice in the history of the Court. The irony is not lost on others, either, of their progression: Earl Warren - Warren Burger.
The Introduction to this book states that "[m]ost of the information in this book is based on interviews with more than two hundred people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court. Chief Justice Warren E. Burger declined to assist us in any way." (3) They go on to state that they only make characterizations of the Justices after having several individuals from each chambers confirm that a particular view was generally held. But the most striking thing about this book is the body blow it deals to Burger.
Burger is absolutely torn apart nearly every single time he is mentioned. While the events of this book may be accurate, they are certainly shocking. And I have to believe that some of the statements are somewhat incredible. There is one in particular that I recall being quite ridiculous (actually taken from the Memoirs of Richard Nixon):
"'Speaking in the greatest confidence, Mr. Chief Justice,' Nixon replied, 'I am realistic enough to know that if this operation [the U.S. Military incursion into Cambodia] doesn't succeed--or if anything else happens that forces my public support below a point where I feel I can't be reelected--I would like you to be ready to be in the running for the nomination in 1972." (79)
Now perhaps this statement is in fact true, but one needs to point out the obvious: it is way better to be a Supreme Court Justice than a President! I do not understand why millions of children across this nation are told by their parents that, "You can do anything--you could even be President of the United States one day!" Now true, the President is ultimately the #1 most public figure in the Nation and the most powerful standing alone, but it just goes to show the irrationality of people. It is an incredibly difficult job where you are subject to personal attacks and probably go gray and age much faster than normal people do. You are in the limelight. You get to live in the White House, and that is cool, but you also have to do all of these press conferences and take responsibility for all of the actions of government--some of which you have absolutely nothing to do with whatsoever. Plus, the longest you can stay in the job is 8 years. Afterwards of course, you are regarded as a celebrity. But look at every President since JFK:
JFK = beloved, and assassinated.
LBJ = did not seek second term, widely reviled.
Richard M. Nixon = resigned.
Gerald Ford = not viewed all that charitably, mostly remembered for his wife Betty.
Jimmy Carter = sometimes regarded as one of the "weakest" Presidents in history.
Jimmy Carter = sometimes regarded as one of the "weakest" Presidents in history.
Ronald Reagan = remembered for economic deregulation and Iran Contra Scandal, even blamed for 2008 Financial Collapse.
George H.R. Bush = did not get elected for a second term (though history has been pretty kind to him, I must say).
Bill Clinton = Impeached, and though fondly remembered, one cannot forget the rank arrogance of carrying on an affair while in that post--though I do credit him for opening up (later) and being honest.
George W. Bush = Often called the worst President in history while he was in office for 8 years, always mocked for his stupidity.
Barack Obama = a real triumph for America as the first black President, but always questioned about his citizenship, and bashed to all hell regarding his solution to the 2008 Financial Collapse.
By contrast you have the Chiefs since then:
Earl Warren = beloved by every account.
Warren Burger = A question mark, but for the extreme criticism in The Brethren.
William Rehnquist = Another question mark, but for some criticism in The Brethren and The Nine.
John Roberts = Did not receive the blame for Citizens United (Anthony Kennedy did), got some glory for the Affordable Care Act decision, stumbled through Obama's first inauguration--too early to tell--may serve as Chief until 2035 or later.
I think it is quite clear that it is way better to be a Supreme Court Justice than a President, and had Burger actually tried to run for President, it would have been a horrible career decision. My point is that more parents should impress upon their children that "one day, they could even be a Supreme Court Justice!" --NOT the President!
Moving on, I do not want to discuss how much this book disses Justice Burger, but I do want to talk about my favorite Justice in it: Justice Douglas.
Justice Douglas (along with Brennan, it must be admitted) is one of the greatest Justices in history. He joined the Court in 1939 as the replacement for one of the other greatest Justices in history (Louis Brandeis) and he served until 1975. He currently holds the record for the longest tenure of anyone. He was an environmentalist before it became fashionable, loved the national parks, and most controversially was married four times (the last two being in his 60s to girls in their early 20's). Whenever his name appears in The Brethren it is almost always automatically amusing. One is struck by his powerful beliefs and unflinching views. It's quite possible that he was the most hardcore liberal that has ever been on the Court (and thus comprised a powerful troika with Brennan and Marshall). On the subject of courtroom decorum in a case involving a Vietnam War protest outside the Supreme Court building, Woodward & Armstrong reported:
"Douglas intended no delay. He prided himself on being the fastest writer on the Court. He often turned out an opinion the day after an assignment; his separate opinions were ready weeks, if not months, before the majority opinions. His clerks often called these 'plane-trip specials,' because they were written after the Friday conference on an airplane, as Douglas traveled to some speaking engagement. At times he mailed longhand drafts back to the Court, so that they could be printed and ready for revision upon his return. The other Justices all acknowledged Douglas's brilliance and incredible productivity, White called him a 'paper factory.' Douglas was so prolific that once when former Justice Charles E. Whittaker was unable to draft a majority opinion, Douglas finished his dissent and then wrote Whittaker's majority for him.
But the others also had come to wonder if Douglas's opinions--often disorganized treatises on sociology rather than the law--did not sometimes fall victim to his unrelenting pace and curiosity. Declaring 'there will be no errors in my opinions,' Douglas, just the same, refused to allow his clerks to edit them." (63)
While we are on the subject of Douglas and his clerks, it bears mention that he often treated them poorly, which is quite amusing. His clerks for the 1972-1973 term--Janet Meik and Carol Bruch--were eviscerated by him. The book explains that Douglas's abuses of his clerks were "legendary":
"The following term [1969-1970], Douglas told one of his two clerks that he would be fired except for the fact that he was a nice boy and that he was so incompetent that he would not be able to get another job. 'I can get better legal advice from drunks in the gutter,' Douglas said." (241)
Bruch in particular takes a lot of abuse from Douglas. "'If you're in over your head, you can leave and I'll get someone else,' he said, hanging up in a fury." (Id.) After he wrote a cryptic note on one case that appeared to ask her to apply an area of the law that had nothing to do with the case, she said to him, "'Excuse me, Mr. Justice, I've been looking at this note and I'm afraid I don't understand it.'
'I'm not running a damn law school,' he barked." (242)
Later, I personally think she makes a huge mistake when she leaves him a note that says, "I'm very sorry I made a mistake on this case. I'm sure there will be other times this year when I will make other mistakes. However, I've found that civility in professional relationships is most conducive to improved relationships. You can afford to be basically polite to me." (Id.) Later in the week, he says to her, "I gather that you think I'm not civil. Nothing that I ever say is personal. This is the rough-and-tumble of the law as practiced in courtrooms daily. If my law clerks can't take it, I don't want them." (Id.) Then she responds, "I don't need unnecessary sarcasm, Mr. Justice." (Id.)
Their relationship further deteriorates and he begins ignoring her. I will stop writing so much about Douglas now but I must mention the way the clerks are portrayed in this book.
They are portrayed as the "real writers" of the opinions--particularly of Marshall's. And I often find the characterizations of them annoying and immature. I am particularly upset that such clerks find their way into this position. These are people that generally go to the top law schools and then seem to walk around the place like they own it. If I were so lucky as to even be considered for a position such as that, I would always tread cautiously--and never talk back to Douglas! I realize things were different in the late 1960s and early 1970s, but the recent law grads of those days act more like the recent college grads of today. Particularly lame is when they form a choir for a holiday party and sing a song about how Nixon appoints new Justices. I cannot say anything more on the subject.
Brennan deserves to have more of a place in this post than I am giving him, but I have grown tired of thinking about this book as a whole. It is simply worth noting that Brennan emerges as the most powerful member of the Court, and the angriest. While Douglas's retirement would be worth noting (as would Justice Black's) I simply do not want to spoil those for the reader, as they are some of the most incredible and moving scenes in the book. Brennan, however, remains and there has probably not been anyone as liberal as him on the Court since his retirement. One could say that Justice Ginsburg, or perhaps Sotomayor or Kagan, approach him, but it is too early to tell for the latter two. Justice Stevens appears at the end of the book as Douglas's replacement and is referred to as the "wild card." While I still consider Stevens to be one of my favorites of all time (indeed the one person living that I would most like to have dinner with, if I could) and was always quick to point out that he was the only one on the Court in the 2000s not to go to Harvard or Yale--I was somewhat dismayed to find that he graduated #1 in his class (from Northwestern). Clearly, no one from Brooklyn Law School will be appointed to the Court anytime soon (except for maybe a faculty member that taught here).
It is somewhat ironic that the book considers Brennan something of a "mouthpiece" for Marshall. "Marshall parroted Brennan," (442) according to the unattributed thoughts of Justice Stevens, which is one of the more confusing literary techniques Woodward & Armstrong use. It has been suggested that Brennan was something of a "reverse-Scalia" -- extremely vocal and angry -- but super liberal rather than super conservative. And the irony appears when Marshall is replaced by Thomas, who often dispelled accusations of being Scalia's "parrot." It's a perfect example of the moment the Court changed--not when Brennan retired, but when Marshall retired. It hasn't really been the same since, and some people wonder whether the composition of the Court will change in the next four years. It seems doubtful that Scalia or Kennedy would be willing to retire before 2016, but I would not be all the surprised if Ginsburg retired during Obama's next term. There will be a very interesting same-sex marriage case next year, and though I didn't mention this above, one of the more amusing aspects of The Brethren is the way that the Justices simply do not want to retire because they love their job too much. Once you're in, unless you have a nervous breakdown and just can't take it or have some sort of scandal (both of which are mentioned in this book), they'll probably need to wheel you out.
The Brethren, like The Nine (reviewed here http://flyinghouses.blogspot.com/2012/01/nine-inside-secret-world-of-supreme.html) is quality reading, particularly for law students. I would say that it is a more entertaining book than The Nine and they are pretty similar in length. The Nine is just denser, and deals much more heavily in the appointment process, as well as the Bush v. Gore decision. The Brethren, predictably, deals heavily in the Nixon v. United States decision--but it also discusses the voting strategies of far more cases, and is thus more revealing (if not useless) to the law student who happens to be studying them. However, The Nine is much more "respectful" to the Justices whereas this book treats the Justices more like "human beings" or "mere mortals." This is a nice perspective to have, but I can't help but feel that this book, more than The Nine, makes the Court appear more petulant and politically-interested than interested in applying a coherent body of law. Regardless, it is a great book, and I am very glad it was written. The only thing that remains to be made is a Ken Burns documentary on the Supreme Court. That would be awesome.
This is for purposes of studying for the First Amendment Law. It will mention every case that we have studied in the particular section of our course that is mentioned in this book. Caution: there is a lot about the obscenity cases in this book so I will do my best to keep the passages limited to the essentials.
Gooding v. Wilson (1972) (this is nothing substantive: just an example of Burger's case assignment mischief...)
"In another case, the Chief had assigned a case in which he and Blackmun were a two-vote minority. Douglas, as the senior justice in the majority, had already assigned this case at conference to Brennan." (170)
[Note: Brennan actually did end up delivering this opinion--Burger dissented, stating that, "It is not merely odd, it is nothing less than remarkable that a court can find a state statute void on its face, not because of its language--which is the traditional test--but because of the way courts of that State have applied the [fighting words] statute in a few isolated cases, decided as long as 1905 and generally long before this Court's decision."]
[When Rehnquist and Powell join the Court after Black and Harlan retire, the case emerges again]:
"One 4-3 case involved an antiwar demonstrator who had cursed at a policeman (Gooding v. Wilson). The Chief said it should be re-argued.
Douglas was sure the vote had been 5 to 2. 'Who was the third vote to reverse?' he asked.
'White,' the Chief replied.
His jaw jutting out, White stared at the Chief. No, he was with the majority, he stated. The issue of reargument was finally dropped." (177)
Roth v. United States (1957)
"The Court's sin, Douglas felt, had been to make obscenity an exception to the First Amendment in the first place. And the original sinner, the father of obscenity law, the author of the first Court opinion that had attempted a definition, was Bill Brennan. In a 1957 case (Roth v. United States), Brennan had written an opinion holding that there was one category of expression, obscenity, that was not speech, and thus was not protected by the First Amendment and could properly be banned." (194-195)
"Douglas knew that Brennan had developed his definitions to protect serious literary works--James Joyce's Ulysses, William Faulkner's Sanctuary, Erskine Caldwell's God's Little Acre--from overzealous prosecutors and judges. Under Brennan's definition, material was obscene if, to 'the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest.' But lower courts continued to ban material Brennan thought was obviously not obscene. For a plurality, in a 1966 opinion (Memoirs of a Woman of Pleasure [Fanny Hill] v. Massachusetts), Brennan had next tried a formulation holding that material had to be 'utterly without redeeming social value' before it could be banned. This placed the burden on prosecutors to prove that nothing in a work redeemed it. Pornographers then took to citing medical reports or throwing in lines from Shakespeare to protect the product." (195)
Stanley v. Georgia (1969)
"In Douglas's view, these efforts by the Court to define obscenity were absurd. The only remotely rational development, he felt, had occurred in a 1969 case (Stanley v. Georgia) when Marshall had said obscenity was largely a personal privacy question. He had written, 'If the First Amendment means anything, it means that a state has no business telling a man, sitting alone in his own house, what books he may read or what films he must watch.'
As defense lawyers attempted to expand the logic of Stanley, hundreds of cases began working their way up the Court. If there was a constitutional right to possess obscene material in one's home, then there was a right to buy it. If there was a right to buy it, there was a right to sell it. If there was a right to sell it, there was a right to distribute it. If there was a right to distribute it, there there must be a constitutional right to write, photograph or film it. Or so their logic went.
If the privacy logic could be extended all the way, the lawyers argued, the distinction between obscene and not obscene would become largely irrelevant. There would be no need to define obscenity as long as people had the right to see and read what they wished. But Brennan had dissented from Stanley, and during the previous two terms had refused to provide the liberals a crucial fifth to extend the logic. Now, with White shifting and two new Nixon Justices taking their seats, Douglas feared that a majority modify Brennan's old definitions and declare a war on pornography--and soon on free speech." (195-196)
Miller v. California (1973) -- Decision to pass over to the next term
"The Chief could hardly wait for three obscenity cases that were to be among the first argued to the full nine-man Court. He considered it fortunate that the Warren Court liberals had never gotten five votes to agree on a definition; that would have settled the law. Their lack of agreement gave him an opportunity to leave his mark in an area of the law on which the Court had been stumbling for fourteen years. There had to be a way to suppress pornography and still protect free speech, he felt.
The January 21 conference, with Powell and Rehnquist now in attendance, was a test of endurance. By the time the Justices got to the three obscenity cases, their energies had measurably faded. The first case (Miller v. California) was the most difficult, in that it raised questions about the definition of obscenity. The conference put it aside and turned to two cases that involved extending the Stanley privacy decision (* U.S. v. Ortito and U.S. v. Twelve 200-Foot Reels of Super 8 mm. Film).
The discussion was complex, the positions difficult to follow, but Douglas counted votes quickly. Stewart and Marshall were ready to vote with him to extend the Stanley decision to cover both cases. To Douglas's surprise, Powell also joined them. In an effort to bring himself up to par on constitutional law before he arrived at the Court, Powell had asked associates at his old law firm to prepare memoranda on major areas. One of their recommendations had been to extend the Stanley privacy doctrine. Powell was willing to follow the advice, at least tentatively. Brennan and Blackmun seemed ready to go along with the four in one case, but not the other.
The Chief waited and spoke last. He was willing to go along in one case, perhaps both. 'I'll try my hand at the opinions,' he said." (196)
Paris Adult Theatre v. Slaton (1973)
"Burger also shared Brennan's concern about protecting children from pornography. 'I consider the state free to make a serious felony out of any conduct that permits access to minors to nonprotected material,' he said. Most importantly, he would be willing to extend the Stanley logic to permit importing pornography for private use.
Brennan was still partially encouraged but wondered what the Chief had in mind. Surely his draft was not ready for publication. He went to see Burger to talk over the situation.
The next Monday, June 19, the Chief sent around a simple note. 'In the present posture of the [obscenity] cases neither Justice Brennan nor I can make specific recommendations as to the disposition of the cases held for opinion...We will discuss this at the June 22 Conference.'
Brennan reassessed the situation. White, Blackmun and Powell seemed concerned with the need to give a publisher or seller fair warning that he could be prosecuted; he must be told what is obscene. If that hurdle could be overcome, they might follow the Chief's lead and permit the states to restrict obscene materials even from consenting adults.
To keep them from voting with the Chief, Brennan wanted them to take cases that did not involve unwilling viewers but rather cases in which consenting adults had sought out pornography.
One involved the sale of a pornographic novel without illustrations to an undercover police officer who asked to buy some pornography. The other two involved an adult movie theater and an adult bookstore, both plainly marked, both without offensive advertising outside, and both of which refused to admit juveniles. If those cases, involving only printed matter or consenting adults, could be argued early, Brennan might be able to show that his approach was preferable to the Chief's redefinition of obscenity.
The conference on June 22 readily agreed with Brennan's suggestion to take the additional cases (* Kaplan v. California; Paris Adult Theatre v. Slaton; Alexander v. Virginia) and to argue them early in the next term. They also put over the three cases before them. They now had a package of eight cases that would present virtually every unanswered question in obscenity law." (203-204)
"Two weeks into the term, the Court heard the first of the obscenity cases. These were three cases that Brennan wanted considered first. They posed the question of whether states could ban consenting adults from walking into a theater or store and buying or seeing what they wanted and expected to see. There was no exposure of books or movies to unwilling viewers or children.
The first case involved the Paris Adult Theater in Atlanta, whose owner had been convicted of showing the X-rated movies Magic Mirror and It All Comes Out in the End. At oral argument on October 19, the attorney for the theater noted the Chief's frequent public complaints about the Court's heavy case load. One way to reduce it, he suggested, was to permit the 'controlled' sale and showing of sex-oriented films. The courtroom erupted in laughter. The Chief did not smile."
JK: There is more about Miller v. California, but I grow tired of transcribing so much and worry that this may be the most flagrant violation of copyright that I have ever proffered on Flying Houses, so I will move onto other cases.
Cohen v. California (1971)
"Harlan's view of the First Amendment was not always so expansive. Paul Cohen, a young antiwar protester, had been sentenced to thirty days in jail for disturbing the peace by wearing a jacket with the words 'Fuck the Draft' inscribed on the back. Harlan termed this case (Cohen v. California) a 'peewee.'
Black found the conviction of Cohen so outrageous that he insisted that the Court summarily reverse the conviction without even holding oral argument. Harlan's strong opposition prevented the summary reversal, and only reluctantly did he agree to have it argued.
Many clerks, however, saw the case as symbolically important. Sentiment against the Vietnam war was at its height. Many of the clerks opposed the war, and felt a little guilty that they had signed up for a year with an establishment institution like the Supreme Court. Most agreed with the sentiments on Cohen's jacket, and one way or another many had themselves avoided military service. In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken anti-war activist Jane Fonda.
The antiwar movement was part of the clerks' culture, and its slogans part of their politics. The obscenities used to denounce Vietnam and the draft were important political expressions. Clearly, if the First Amendment protected speech of any kind, it protected political speech. Abrasive, outrageous expressions were sometimes called for. 'Fuck the Draft' was hardly the most extreme. A decision against Cohen, in essence banning 'Fuck the Draft' from the jackets and posters of the antiwar movement, could have deeper ramifications, some clerks believed. Police throughout the country were looking for grounds on which to curtail the activism unleashed by the war
....One of the clerks [in Stewart's chamber] fashioned a makeshift patch combining the themes [of flag sculptures and jacket slogans] and put it on the back of his suit coat. 'Fuck the Flag' it said. He wore it for several hours around the chambers before deciding that he did not want to test the Court's tolerance for political speech in its own building." (128-129)
"The ritual that Harlan enjoyed most was sitting with his clerks on Thursday afternoons, reviewing the cases argued that week in preparation for the Friday conference. The afternoon of February 25, the clerk he had assigned to the Fuck-the-Draft case reviewed the details at length, pointing out that according to Harlan's prior opinions, the slogan was clearly protected by the First Amendment. Cohen's conviction was for the content of the message on his jacket, for his opposition to the war, and not for some disruptive conduct.
For Harlan, and for all of his colleagues except Douglas and Black, there were exceptions to what was protected speech under the First Amendment. The clerk went down the list to assure Harlan that none was involved.
Did the words advocate an insurrectionary act--the overthrow of government or interference with the draft? No, they merely conveyed Cohen's view of the war and the draft.
Did the words immediately endanger observers--like shouting 'Fire!' in a crowded theater? No, of course not.
Did the words incite a noisy disruption? No, the only one in the courthouse apparently bothered by them was the arresting officer.
Did the words provoke a violent reaction from observers, so-called 'fighting words?' No, again only the arresting officer seemed concerned. He had tried and failed to get the judge to hold Cohen in contempt.
Were the words 'offensive' to unconsenting viewers? This was the most difficult problem for Harlan. Some passersby in the corridor might have been offended. But they could have limited their exposure by moving away, the clerk argued. The only captive audience would have been the one in the courtroom where Cohen appeared, but there he folded his coat over his arm, so that the spectators were not exposed. Moreover, the clerk reasoned, a certain amount of 'offensive' exposure had to be expected in public.
At conference the next afternoon, the Chief referred to the case as the 'screw the draft' case. He voted to uphold the conviction. To everyone's surprise, Black's position had changed drastically. He did not offer his absolutist position. Instead, he agreed with the Chief: this was a question not of political speech but rather of the pernicious use of a vile word. Cohen's jacket slogan was not protected 'speech' but unprotected 'conduct,' he said. Cohen could be prosecuted.
With his most boisterous drawl, Black claimed that he was not deviating from his absolutism. Conduct was different from speech. His favorite example was picketing a courthouse. It was unacceptable conduct, not speech. People could not 'tramp up and down the streets by the thousands' and threaten others, for example.
Douglas and the other First Amendment liberals--Brennan, Stewart and Marshall, who grumbled that it wasn't a case worth 'giving blood on'--all lined up in favor of reversing the conviction. White and Blackmun sided with the Chief and Black.
Harlan provided the days second surprise. He had thought it over, and he was not leaning toward overturning the conviction. But he was still not sure. He wanted the case put over for a week. He needed more time to consider it.
The others agreed.
Douglas's clerk joked about how the 'magic word' set off such severe reactions in the 'Bad B's,' as he referred to Black, Burger and Blackmun. Douglas was disappointed that Black had deserted his long-standing First Amendment position. Perhaps Black was simply too old to understand these issues anymore, to pursue the reasoning necessary to draw consistent parallels. But Harlan's hesitation offered little encouragement. He would likely end up voting to uphold the conviction. He too was out of touch with the country. The key would be Black, Douglas figured." (129-131)
JK: This last quote may set a record for the longest single passage on Flying Houses. There is more, but I believe this is enough. But it is worth noting that Blackmun, Burger, and Black dissented from the majority in this case (which reversed the conviction), and White joined paragraph two of the dissent (written by Blackmun) which read, "I am not at all certain that the California Court of Appeal's construction of section 415 is now the authoritative California construction....Inasmuch as this Court does not dismiss this case, it ought to be remanded to the California Court of Appeal for reconsideration in the light of [a subsequent] decision by the State's highest tribunal. (White did not join paragraph one of the dissent which reads "Cohen's absurd and immature antic, in my view, was mainly conduct and little speech...the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire, where Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench. As a consequence, this Court's agonizing over First Amendment values seem misplaced and unnecessary."
Alright, that is enough on Cohen!
Buckley v. Valeo (1976)
"Also pending was a challenge to the massive federal campaign law, which had been enacted in 1974 to reduce the influence of big money and large contributions in political campaigns (Buckley v. Valeo). The law had four major provisions. It provided for the financing of presidential campaigns from federal tax revenue; imposed elaborate contribution and campaign-expenditure reporting in which contributors were publicly named; limited individual campaign contributions to $1,000; and set strict limits on campaign spending by candidates.
Senator James F. Buckley, a conservative Republican from New York, and Eugene McCarthy, a liberal Democrat from Minnesota, had led the legal challenge, arguing that the limitations abridged free speech. The case presented more than twenty constitutional questions." (395-396)
[JK: As you can imagine, I am exhausted at this point, having finished this actual book at 9 AM this morning, and having taken an hour long nap in the napping room of the library, and it being 3:35 PM now]
"Douglas returned to Washington at the end of November. When he came to his chambers, he buzzed for one of his clerks. No one came. He pushed the buzzer again. Still no one. It was strange. They always came running. He pushed longer and harder on the buzzer.
Marty Bagby, Douglas's senior secretary, finally appeared at the door.
'Where are the clerks?' Douglas angrily demanded.
'There are no clerks,' she stammered. The Chief Justice had reassigned his clerks while he was gone.
Douglas glared at her. No clerks? He was a Justice. He had work to do......
Douglas had been a full member of the Court when oral argument was heard on the campaign finance law. He saw no reason not to participate in the decision, since his replacement would not be able to take part. He decided to write an opinion......." (396-397)