Inside the High Court

By Evan Thomas

After a decade, it is Burger's in name only

When the nine Justices of the U.S. Supreme Court meet to discuss and vote on cases on Friday mornings, they begin with 'he simple ritual of shaking hands. Then they sit down to decide on some of the nation's most sensitive, sometimes most divisive issues. No reporter, no lobbyist, no aide, not even a messenger is allowed in the paneled conference room. The Justices are left alone to argue the law, their principles, their consciences. Theirs is not an abstract debate: comfortably hazy concepts like ''liberty'' and ''equality'' must be applied to urgent social and moral dilemmas--abortion, the death penalty, obscenity, busing, reverse discrimination. The conferences provide a relentless test of conviction and reason; shallowness and bluffing are not long concealed. ''It is like being naked in a steam bath,'' Justice Felix Frankfurter once remarked. ''You are totally exposed.''

To appraise the Supreme Court a decade after Warren Burger became Chief Justice, TIME interviewed several of the Justices, dozens of their law clerks, and scholars across the land. One finding: after ten years at the helm of the nation 's highest tribunal, Burger has yet to demonstrate the intellectual or personal persuasion necessary to make him a leader among his highly individualistic brethren. Another: faced with a never-ending array of increasingly complex issues, the court itself is splintered and groping; its decisions often seem inconsistent.

Yet it remains an institution of remarkable resilience and integrity.

In the 1960s, under Chief Justice Earl I Warren, the Supreme Court fashioned I a goad for social progress out of two 14th Amendment phrases--due process and equal protection of the laws--with specific application to civil rights and criminal law. Liberals praised the court for championing the rights of the traditionally powerless--blacks, the poor, criminal defendants. Others denounced it for excessive zeal and social meddling.

Scholars like Yale's Alexander Bickel chastised the Justices for reading their own morality into the Constitution and usurping the power of elected officials.

Bumper stickers demanded the impeachment of Earl Warren. Alabama Governor George Wallace called the court a ''sorry, lousy, no-account outfit.''

Among the most persistent detractors was Richard Nixon. In his 1968 law-and-order campaign for the presidency, he accused the Supreme Court of ''weakening the peace forces in society and strengthening the criminal forces.'' If elected, he promised, he would fill Supreme Court vacancies with ''strict constructionists,'' a description generally taken to mean conservatives.

Nixon did not have to wait long to act after his Inauguration.

Earl Warren retired, and in May 1969 Nixon chose Warren Earl Burger to replace him as Chief Justice. Burger, then 61, seemed made to order for Nixon's views.

A product of night law school in Minnesota rather than the Eastern Establishment, Burger had been a judge on the prestigious U.S. Court of Appeals for the District of Columbia, where he had often criticized the Warren Court's liberal decisions on the rights of the criminally accused.

By 1972 Burger had three more Nixon appointees as colleagues on the court: Harry A Blackmun, Lewis F. Powell Jr and William H. Rehnquist. Liberals warned of "an emerging Nixon majority"; indeed, in the early to mid-'70s, the Burger Court, with the Nixon appointees often voting as a group, began chipping away at Warren Court precedents such as Miranda and the rule excluding illegally obtained evidence. But then the bloc of Nixon appointees began to break up. In 1972-73 the quartet voted together three out of four times. By 1977-78 they were all of the same mind on only 36% of the court's rulings.

Justices sometimes have a way of surprising the Presidents who appoint them. Earl Warren did not turn out to be the man of moderate Republican views that Dwight Eisenhower expected him to be. The Nixon appointees have grown during their years on the Supreme Court; not surprisingly, they have also grown apart. Chief Justice Burger himself maintains that building an ideological bloc was not on his mind when he came to the court, whatever Nixon may have intended.

The result has been that it is increasingly difficult to label the Supreme Court.

Activist in some areas untouched by the Warren Court, like sex discrimination, it has continued to press for school desegregation, tried to strike a balance on reverse discrimination and retrenched slightly on criminal rights. It clearly does not have the moral vision of the Warren Court, particularly in its attitude toward the havenots, but it certainly is not the conservative bastion that Nixon hoped to create. A decade after Burger became Chief Justice, the Supreme Court is the Burger Court in name only. In part, that is a reflection on Warren Burger and the way he has performed his role. In part, it lies in the peculiar nature of the institution and the complex interaction of the nine individuals who are on the bench.

Each Supreme Court Justice, from the most junior to the most senior, has an equal voice and vote on each decision. The Chief Justice, or ''the Chief,'' as he is called, is primus inter pares--first among equals. At conference, the Chief begins the discussion of each case by describing the issues as well as his own views. Warren was known for declaring his opinions clearly and strongly at the outset, cutting through legalisms to ask persistently, ''Is it right? Is it fair?'' Burger is more tentative. Some of his colleagues wonder whether he is always adequately prepared for conference; when he states the issues, he sometimes seems to be reading them for the first time from a memo written by his clerks.

He often announces that he is ''inclined'' to vote a certain way; sometimes he reserves judgment; occasionally he changes his vote. In one case, Burger voted five times at different stages of discussion: twice for, twice against and one "pass." On Burger's tombstone, a Justice once joked, should be carved the inscription, "I think I'll pass for the moment."

Over the years, Burger's tendency to flip-flop has given rise to conspiracy theories about his motives, notes TIME Correspondent Douglas Brew. When 'the Chief votes with the majority, he has the right to decide who should write the opinion of the court and provide the reasoning behind the decision. If he is in the minority, the most senior member of the majority assigns the task. According to former Supreme Court law clerks, Burger has, at times, held back or switched his vote to keep control of the opinion assignment, a practice the clerks call "phony voting." Burger regularly dismisses such assertions as fables. In fact, his colleagues generally believe that either the Chiefs lapses into indecision are just that, indecision, or he misunderstands or forgets what the consensus of the majority is. Even if the Chiefs motives are occasionally manipulative, the simple fact is that Supreme Court Justices are not readily manipulated.

A case in point is Roe vs. Wade, the controversial 1973 decision striking down state laws that prohibited abortion. According to clerks on the court at the time, Burger joined the majority to keep the opinion away from the then senior Justice, William O. Douglas. The most liberal member of the court, Douglas wanted to base the decision on a broad constitutional right to privacy. Burger preferred a more narrowly drawn opinion, one that would invite the states to replace rigid with less restrictive abortion laws. As a furious Douglas accused Burger of abusing the assigning power, the Chief gave the opinion to Blackmun, a Justice who had voted so often with Burger that he was nicknamed "Hip Pocket Harry'' by the clerks; indeed, Burger and Blackmun, former schoolmates in St.

Paul, were initially dubbed the ''Minnesota Twins.''

Hip Pocket Harry, however, turned out to be anything but. During the summer, he disappeared into the library of the Mayo Clinic, where he had once been general counsel, to research the medical aspects of abortion. After he emerged, he wrote a broad opinion declaring that abortion, at least in the first trimester, was a matter for a woman and her doctor, not the state, to decide. That was hardly the reasoning Burger had hoped for. The Chief eventually added a cryptic concurring opinion arguing that the court's decision did not sanction ''abortion on demand''--though that was precisely what Blackmun meant.

Bringing the Justices to consensus--Powell once described them as ''nine one-man law firms''--takes either considerable intellect or political ability or both.

Most sources agree that Burger has been found lacking on both counts. A Justice's written opinion is his most effective tool of persuasion. ''Votes change in the writing perhaps more often than in conference,'' says Justice Byron R. White. Yet Burger's colleagues find that drafts of his opinions often carry mistakes or gaps of logic; of the final product, Stanford Constitutional Expert Gerald Gunther says, ''Only in rare opinions do you get a carefully thought-out, well-developed argument.''

Burger's predecessor, Warren, was also no great legal scholar, but he was an exceptionally warm and personable man who knew politics inside out from his days as California Governor. He was inclined to assign opinions to the Justice who best represented majority consensus. ''He tried to find the common denominator,'' says a former Justice. A Supreme Court opinion can go through a dozen drafts before the majority agrees on its wording; Warren's leadership skills were evident in the way in which he smoothed differences. By inclination and by temperament, Burger does not play that role. ''He does not walk the halls the way Warren did,'' says Gunther. Adds University of Virginia Law Professor J. Harvie Wilkinson, a former Powell clerk:

''The man within him does not have the gift of leadership or conciliation.'' The Burger Court has rarely been unanimous in major cases; in two of them it was more a question of other Justices marshaling Burger than Burger marshaling them. In the 1971 Swann vs. Charlotte-Mecklenburg case, Burger surprised Nixon by handing down an opinion that approved of mandatory school busing as a tool of desegregation. As it later became clear, however, the opinion was essentially crafted by other Justices. Burger initially opposed the decision, but was persuaded to go along so that the court could present a unanimous front on an issue of great national sensitivity. Burger's opinion in U.S.

vs. Nixon, moreover, ordering the President to turn over the White House tapes to the Watergate prosecutor, was written largely by Justices Potter Stewart and White. When Burger, who wanted to give Executive privilege more leeway in the opinion, asked Blackmun for support, Blackmun turned him down.

Even if Burger had great leadership ability, he simply does not have the votes to carry his views. Warren, a liberal, could rely on a liberal majority; Burger, a conservative, presides over a fragmented, highly individualistic court. Indeed, no single Justice can consistently sway others or shape compromises. Rehnquist, 55, has the personality and political finesse to swing votes, but leans too far to the right to be a consensus maker. William J. Brennan Jr., 73,* was adept at politicking among the liberals of the Warren Court, but now is said to be a loner, who, like Thurgood Marshall, 71, stands frustrated in frequent dissent. Many decisions turn on the shifting coalitions of the so-called Fluid Five: Stewart, Blackmun, Powell, White and John Paul Stevens.

Powell, 72, a courtly Virginian, is a careful, thoughtful balancer of competing concerns. Blackmun, 70, has long since lost the Minnesota Twin label; he has asserted himself as an independent Justice who wrestles with his conscience, slowly, sometimes almost painfully, before deciding hard cases. White, 62, who in 1940 managed to lead both his class at Yale Law School and, as a Detroit Lion, the National Football League in rushing, is carefully mindful of precedent and the need to stick to the facts rather than the moral imperatives of the case.

Stewart, 64, a liberal Republican, comes as close as any in the group to being an artful politician, but has not emerged as a leader. Stevens, 59, the newest Justice, is a probing questioner and an unpredictable vote; he is frequently called the court's ''wild card.'' He believes his role to be purely intellectual, not political.

Personal relations among the nine are characterized by one Justice as ''friendship--at arm's length.''

Burger has played a much more visible leadership role off the bench. He likes to point out that his title is not Chief Justice of the Supreme Court, it is Chief Justice of the U.S. More than any Chief since William Howard Taft, who served 50 years ago, Burger has been concerned with the administration of justice in the U.S. In speeches, interviews and articles, he is constantly proposing ways to help courts cope with their huge backlogs.

With some success: Burger-inspired innovations like federal court administrators have helped make judges measurably more productive. Burger's off-the-court duties consume as much as a third of his time. "The Chief Justice has two jobs," says Powell. "The rest of us have one." Says White: "I have a feeling Burger gets refreshed by his involvement in other duties, such as being chairman of the Judicial Conference. It's like us going to the beach."

Burger has also concerned himself with running the Supreme Court more efficiently, installing computers and photocopying machines (the Justices had none when he got there). He has become a housekeeper as well, arranging for flowers to be planted in the courtyards and plastic rubber plants placed in the corridors. Not all of his interior decorating has pleased his colleagues: in the early '70s, Burger moved one of his desks into the court's conference room. That offended some Justices who prefer to think of the Chief as one of the pares rather than as primus.

In recent years it has become almost an oral tradition for clerks to poke fun at Burger as a vain and pompous man who likes French wine, as well as all things English, particularly English barristers, whom he considers to be more "civilized" than American lawyers. On occasion, he has been preceded by a messenger who gravely announced to startled clerks, "Gentlemen, the Chief Justice of the United States." Paranoid about press leaks, he opposed Rehnquist's suggestion for a weekly tea with clerks because he thought it a security risk. The court's press officer, Barrett McGurn, regularly reports to Burger on what newsmen covering the court are saying about the Chief Justice in the press room. McGurn keeps a file of negative news clippings locked in a safe in his office.

Still, Burger's own clerks argue that the Chief is a charming and thoughtful man, given to bringing them small favors like homemade jam and freshly baked bread prepared by Burger himself. The Chief has been particularly considerate to Douglas since the old liberal retired from the court in 1975; he has called on him regularly, and personally supervised the construction of a ramp into the court for Douglas' wheelchair. (Douglas, a brilliant but acerbic man, was less kind to Burger while still on the bench. In conversations with his clerks, he referred to Burger not as "the Chief but as "this Chief.")

Burger's judicial philosophy is not easily discerned. He does not have a broad vision of the court as an instrument for social reform. Nor is he particularly concerned with "judicial restraint" or the limits of the court's power. Rather, observes Georgetown University Law Professor Dennis J. Hutchinson, "Burger votes the way he thinks a right-thinking person would vote. He applies middle-class values and his own common sense." The Chiefs opinion in Wisconsin vs. Yoder, which ruled that the state could not force Amish parents to send their children to school, is an example. It had "less to do with the First Amendment freedom of religion than with parental authority over children," says Yale's Robert A. Burt. "Burger makes a point of saying that these are good strict parents who do not take welfare." While Earl Warren was skeptical of traditional authority, Burger is usually respectful of it. But he can be unpredictable: he wrote the first Supreme Court opinion (Reed vs. Reed in 1971) in the line of cases giving women constitutional protection against discrimination.

Burger is not the only Justice on the Supreme Court who lacks a coherent, identifiable judicial phiants like Marshall Harlan, whose clearly articulated views of the Constitution and the role of the court gave other Justices a standard around which to rally or against which to react. ''There are no strong philosophical bents on this court,'' says University of Virginia Law Professor A.E.

Dick Howard. ''Most of them are inde pendent pragmatists who take each case as it comes.'' Says Stanford's Gunther:

''The Justices are not talking to each other, take.'' there is Such not absence enough of informal give consultation and can lead to a proliferation of concurring opinions, as each Justice feels compelled to explain his point of view.

Sometimes the inability to reconcile differences has direct, unfortunate results. The Gannett decision, handed down last July, is a prime example. At conference, TIME learned, the Justices voted 5 to 4 that the public has a constitutional right to attend criminal proceedings. Then Powell switched his vote. He was willing to recognize a right of access under the First Amendment, but the opinion was based solely on the Sixth Amendment open-trial guarantee. The minority suddenly became the majority. But the decision was far from clear, even to the Justices themselves. Rehnquist, in a concurring opinion, declared that judges could close off any criminal proceeding. Yet the Chief Justice, in his own concurring opinion, emphasized that the decision was limited to pretrial hearings. The result: confusion in the lower courts. Some judges barred the press but not the public; others closed off not just pretrial hearings but trials and sentencings as well. Though the Chief blamed the press for confusing judges, four Justices publicly commented on the case over the summer, and they still cannot agree on what it means. Similarly, though the court has not undone the Warren Court's civil rights record, it has spoken with many voices, leaving judges, lawyers--and the public--uncertain. Says a former Justice: ''The division of the court undermines its moral authority on great moral issues.''

Perhaps. But it should be remembered that the Burger Court is confronted with increasingly complex and hotly contended issues. The Warren Court laid down a great principle in Brown vs. Board of Education (1954), requiring states to desegregate their schools. The Burger Court is left with the possibly harder questions of how and when. By busing? When segregation is de facto and unintentional?

''Brown just started a series of cases,'' says Powell, ''and each gets a little tougher.''

Consider the difficulty of resolving Bakke, the case challenging minority quotas in university admissions. Is it fair to discriminate against whites to redress past discrimination against blacks? The splintered opinions of the court show honest, thoughtful attempts to answer those questions. There is Blackmun, joining the liberals to argue that racial preferences, even quotas, are necessary. He is clearly unhappy about it, but sees no other way.

There is Powell, whose solo opinion enabled the court to strike down quotas while upholding affirmative action. The constitutionality of the death penalty is another issue that has divided the court; the Warren tribunal had barely begun to consider the question. Decisions like Zurcher vs. Stanford Daily, allowing surprise police raids on newsrooms in search of criminal evidence, have earned the Burger Court an ''anti-press'' label.

But despite the specific problems some decisions have raised, on balance, most constitutional scholars agree that the court has not significantly cut back on press freedoms.

Rather, it has been reluctant to create new ones such as a privilege for reporters not to disclose confidential sources, particularly when other interests are at stake, like the right to a fair trial.

The tremendous growth of Government regulation has inevitably meant that more intricate statutes need legal interpretation. Thus the court faces a growing work load. ''There are just more hard and more deserving cases than there used to be,'' says White. To day the court hands down more than half again as many written opinions as it did 25 years ago, and at term's end, the Justices often find ''themselves rushing to finish their drafts. Says Powell: "The pressure of time prevents us from going from chamber to chamber to work things out. The lack of opportunity for collegiality diminishes as the case load increases.''

Whatever their differences, the Justices express them publicly in their opinions.

Their decisions are the product of a rigorously principled debate unmatched in any other branch of Government.

''When the court is working on the margins of things, it would be expecting too much to get clear and ringing answers,'' says Harvard Law School Professor Laurence Tribe. ''Yes, this court is un even and divided; it is feeling its way. But to do otherwise would undermine the credibility of the institution.'' If the lib eral Warren Court has not become the conservative Burger Court, if the Nixon appointees have failed to march in lock step, it should come as no surprise. It is merely a reflection of the integrity, and In deed sensitivity to U.S. society at large, of the Supreme Court.

*Brennan, who has been in poor health, is considering retiring in June.

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