(2 of 3)
A. I was a Virginia Democrat, and I had met President Nixon only once. I think he nominated me because I was a Southerner. The tapes case deeply disturbed all members of the court. Each was very conscious of its vast importance. There was no square precedent in the history of the country. President Nixon deserves full credit for having recognized the authority of the court. We could have had a constitutional crisis if he had said what President Jackson is reputed to have said once about some decision of the court: "John Marshall has made his decision; now let him enforce it."
Q. Every term, the Justices hire a small cadre of the top law-school graduates as clerks. Do they write the Justices' opinions?
A. The chambers vary, but the short answer is no, if you have in mind the final opinion. I'll be glad to describe what I usually did: before the case was argued, having read the briefs, I would write a memorandum myself in which I summarized how I thought the case should be decided and how the opinion should be written. I would give that to a law clerk who would then give me what we call a bench memo. If the case was assigned to me to write, that law clerk in all probability would submit in triple-space form a draft of an opinion that reflected the views I had already set forth. Before a draft opinion was circulated to the other Justices, all four of my law clerks would review it, and we would all work it over very carefully.
Q. What happened once a draft opinion was ready to circulate?
A. Well, the Justices are free to make comments, and the author of an opinion welcomes comments. Often changes are made in that process, sometimes in order to get a majority. It is often done informally. One Justice will walk to the chambers of another to discuss possible changes.
Q. Has collegiality among the Justices suffered in recent years?
A. The opinions often use language that perhaps is regrettable. But the issues that come to the court are important and difficult, and Justices in dissent are disappointed. When I was nominated, I was concerned that I would not get along very well with some of the Justices in view of what they had been writing about one another. But I found that despite the harsh language, the collegiality is fairly high.
Q. Some say that Justice William Brennan is the court's master politician. As leader of the court's shrinking liberal wing, he manages to muster more majorities for liberal results than one might expect.
A. I would never refer to any member of this court as a politician. But I would say this, and I think every member of the court would agree: Bill Brennan is a very attractive and persuasive human being, and also a very able judge. He just celebrated his 84th birthday. He has been here since 1956, and his influence has been profound.
Q. How much do political realities affect the decisions of the Supreme Court?
A. Frequently, there are demonstrations around the court. In our democratic system, that is a plus. But if you are a federal judge appointed for life, you are not likely to be influenced by people marching around the court.
Q. Do the Justices pay attention to the impact of their rulings, and does doing so subsequently alter their views?