Justice Brennan by Seth Stern

Author:Seth Stern [Stern, Seth]
Language: eng
Format: epub
Publisher: Houghton Mifflin Harcourt

NO MATTER HOW hard Brennan tried to give Burger the benefit of the doubt, the new chief justice kept giving new cause for concern early in 1970. He showed every indication of being a martinet, more focused on the minutia of managing the Court than on the cases the justices heard. A February 7, 1970, memo he circulated to the conference about print shop overtime read: "I wonder if a large part of this is not attributable to our own habits and whether as to much of it, a slight change in our habits might not eliminate most of the overtime. There are many uses for that $19,818.00."

But it was the unyielding manner in which Burger handled even minor cases that really gave Brennan the most pause. That January, the Court took up a challenge by several direct-mail marketers to a statute that allowed people who received sexually provocative mail to request that the postmaster general block the senders from mailing anything else to their address. The justices unanimously agreed to uphold the statute. But when Burger circulated his draft opinion, it included language asserting that parents had an "absolute" right to control or censor their children's mail. Brennan worried that such sweeping language, raising an issue not presented in the case, might allow parents to control even the political or religious literature their teenage children received. Harlan shared similar concerns and wrote Burger to share his "distaste for absolutes." Burger adjusted the language slightly, but not enough to satisfy Brennan. "It may be that I'd agree that parents should have this authority if we had a case presenting that question but I'd rather not pass on that until the issue is directly before us," Brennan wrote Burger.

Rather than yielding further ground on a minor point that had drawn strong objections from two of his colleagues, Burger instead grew more insistent. "I think it is essential to the opinion and if the holding doesn't mean that, it doesn't mean anything," Burger wrote. Brennan tried speaking with Burger in person, which did not help matters. He returned to his chambers and told his clerks that Burger insisted that parents ought to have the right to exercise tight control over their children. Brennan concluded that this issue tapped into a deeper issue for Burger than postal regulations; for Burger, it was a way to strike back against the kind of parental permissiveness that he felt fueled excesses among the counterculture generation of 1960s college students. Brennan believed Burger was simply misconstruing the statutory language. And when Burger announced the opinion on May 4, Brennan made his point by filing a concurring opinion joined by Douglas. He wrote, "I understand the Court to leave open the question of the right of older children to receive materials through the mail without governmental interference," and also made clear that the Court had not ruled on whether the statute could be applied to all materials and all children under the age of nineteen. Brennan's clerks felt

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