Agreeing to Disagree

"We are professionals at disagreeing," Chief Justice Burger tells friends. "We're experts at arguing with each other without getting personally aggrieved." But the experts have been under remarkable pressure this year from the giant docket of cases and the strains of a shifting philosophical direction. Even the affable Chief Justice was heard last week groaning about the difficulties caused when "one of the brethren packs up and leaves town early and then tries to conduct his business back and forth across 4,000 miles or however far it is out there." He was referring to Justice Douglas, who left three weeks ago for his wilderness home in Gooseprairie, Wash., and mailed in the final drafts of some last opinions.

The remark was only the latest complaint to get through what once was usually a soundproof wall surrounding the Justices. Court insiders were also talking last week about Justice Rehnquist's failure to disqualify himself on the issue of Army surveillance of civilians; he had defended the practice before a Congressional committee a year ago, when he was an Assistant U.S. Attorney General, and now he had cast the deciding vote that gave it court backing. There was also criticism over last week's failure to decide the abortion cases argued earlier this term, before Rehnquist and Powell were seated. The preliminary vote was reported to be 5-2 in favor of declaring anti-abortion statutes unconstitutional. However, Rehnquist and Powell apparently voted with the dissenters to hold the case over for reargument next term, and Marshall, who had already written a draft of the majority opinion, joined them because he thought it unwise to end abortion prohibitions on the same day the death penalty was thrown out.

That batch of back-courtroom gossip followed a story by the National Observer's Nina Totenberg reporting that the court had had its first racial incident. Justice Marshall had asked for a rescheduling of a judicial conference so that he could attend the funeral of a relative. When Chief Justice Burger found that the new date would conflict with the funeral of former Justice James Byrnes, which he felt a duty to attend, the conference was switched back to the original date. No one told Marshall about the change; the conference was held, and cases were debated and decided without him. Marshall thereupon sent an angry memo of protest to the Justices, and he told friends, according to the report, "Apparently the funeral of a white man is more important than the funeral of a black man." Embarrassed, the Justices held the conference over again with Marshall present.

When he learned that TIME was checking on the incident, Marshall broke a five-year-old practice of never talking to newsmen and denied ever feeling "any racism on the part of my colleagues. I never use the word black anyway; I use Negro." The racial overtones thus seem to be untrue, but Marshall did not deny sending the memo, and he conceded, "Certainly there are tensions. There are bound to be."

Shocked. Another example of these tensions occurred when Justice Stewart invited John Kerry of the Viet Nam Veterans Against the War to sit in the box reserved for guests at the court's public sessions. Justice Blackmun told Stewart that he was "shocked and appalled" by the incident.

At the center of the court's division is the Chief Justice. Though courtly and charming, he is accused of operating somewhat highhandedly--"as if he were president of the court," complains one Justice, rather than first among equals. A Justice once had to send Burger a gentle note pointing out that he had assigned an opinion even though he was not part of the majority--a significant departure from tradition. Less significant but rather symbolic was the controversy over the court's bench. When Burger suggested redesigning it so that the Justices could see and hear one another better, he originally considered a V shape with himself at the apex. Other Justices resisted. The bench was ultimately bent in two places so that it now resembles a half hexagon.

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