(8 of 9)
Mostly, however, the Chief Justice must rely on the power of his argument, just like any other Justice. If past performance is any guide, this is where Fortas will excel. "Warren made his influence felt by personal charm and his position," says Professor Kalven. "Fortas will do it by being the best man on the team." In cases where he is by himself or has only one or two colleagues agreeing with him, whatever he does will make little difference, observes Yale Professor Alexander Bickel. But where he is in a minority of four, as he was last month in the public-drunkenness decision, the added power he has as Chief Justice might be enough to tip the scales and turn a dissent into a decision.
Even if he does not change the thrust of decisions, Fortas, an extraordinarily subtle and precise analyst, is likely to improve their quality. One justified criticism of the Warren court is that the decisions, though progressive and humane, were often so poorly written and negligent of precedent that they were confusing to lawyers and judges in lower courts, who must look on them as law.
That complaint is never made about Fortas' opinions, which Yale's Fred Rodell compares with those of Brandeis', one of the court's greatest craftsmen. "All Brandeis' briefs were beautiful," says Rodell. "There were no holes in them, no questions left unanswered, nothing missing. He could foresee every possible question."
Will the Fortas court be as active and adventuresome as the Warren court? The answer lies, ironically, not so much with Fortas as with Homer Thornberry, whose direction on the Supreme Court, despite a general record of moderate liberalism, is unpredictable. If he proves to be as liberal as Warren, whom he really replaces, the court will probably continue on much the same path. If he tends toward conservatism, it might move toward the right — though probably not enough to satisfy the congressional critics. More vacancies might come even before Johnson leaves office. Black is 82; Douglas, 69, recently had an electronic pacemaker implanted in his chest to correct a slow heart rate; John Marshall Harlan, 69, has failing eyesight.
The Greatest Era. In his letter to President Johnson, Warren gave age as his sole reason for retiring. Still, it is not unlikely that he might have been prodded, as Republicans guessed, by the fear that a President Nixon would appoint a conservative who might undo much of what he had done. Nor is it altogether unlikely— unless last week's nominations are killed by a Senate filibuster— that Black and Douglas, also liberal, might be goaded by the same fear.
Still, the great controversies of the Warren era— civil rights, reapportionment and criminal justice— have largely been decided and the decisions are largely irreversible. "The work of the Warren era is finished," Fortas said last week. "It's done— magnificently. It was the greatest era of court history since John Marshall, and perhaps one can drop that qualification."