The Brethren by Bob Woodward, Scott Armstrong Page B

"peewee," but every case deserved as much time, effort, and explanation as it took to make the issues clear.
    Harlan wrote a memo to the other Justices suggesting that the Court resolve the real question and provide some guidance. In response, the Chief produced a second draft in which he added a single, final paragraph saying that the
    Department's decision was "arbitrary and capricious" and was therefore overturned.
    To Harlan, this was not an adequate explanation. The Chief had not reviewed the applicable statutes and legislative history nor had he surveyed the prior administrative decisions of the Interior Department. Burger had reached the correct result, as far as Harlan was concerned, but there was simply no explanation for the decision in his draft. The Chief would overrule one particular decision of the Interior Department, but leave unclear the scope of the Secretary's power to disapprove wills.
    After his own careful revi ew, Harlan circulated an opinion explaining how the Secretary had exceeded his authority. Since he agreed with the Chief's result, he joined the Chief's opinion, but he added his own "concurring" comments to be published simultaneously with Burger's opinion.
    The Chief did not like concurrences. He felt that they were often nitpicking, that they added little to the law, and that at times they split majorities. Separate opinions by each individual Justice giving his precise reasoning were generally an unnecessary exercise. They confused as much as they enlightened the lower court judges, Burger felt. Also, concurrences detracted from the main opinion and were, in some cases, almost an insult to the author assigned for the majority.
    Burger decided in this case to borrow much of Harlan's concurrence, hoping that Harlan, seeing his reasoning adopted, would not publish. But Harlan s till wasn't satisfi ed. Burger's next draft was much better, but not good enough for Harlan. Burger had reached the crux of the case, but in a mediocre way, by simply paraphrasing sentences from Harlan's opinion. He had not used Harlan's citations from prior Court decisions, or his review of the legislative history and prior administrative practices that was so critical in determining the intent of the Congress that had passed the law.
    Harlan considered the Chiefs new draft a half measure. Why not use the legal core of the opinion, or ask to borrow it verbatim? But he had a dilemma. If he didn't withdraw his concurrence, now that Burger had gone so far to accommodate him, the Chief might be offended. Harlan never wished to offend anyone unnecessarily. He mulled it over. Ultimately, as always, each Justice could publish what he wanted in terms of separate concurring or dissenting opinions. Despite the closeness of the Chief's latest draft to his concurrence, Harlan told his clerks, "We're going with it." He instructed that his concurrence be shortened slightly, printed, and published when the decision was announced. Harlan was determined to hold to his standard of meticulousness.
    For Burger there were no more intimidating experiences than his first few encounters with Marshall in the marble corridors of the Court.
    "What's shakin', Chiefy baby?" Marshall would sing out. Puzzled, Burger mumbled a greeting of his own. It did not take Burger long to realize the pleasure Marshall got from making him uncomfortable. Marshall had many similar stories of putting people on. A favorite of his involved unsuspecting tourists who mistakenly entered the Justices' private elevator. Finding a lone black man standing there, they said, "First floor please." "Yowsa, yowsa," Marshall responded as he pretended to operate the automated elevator and held the door for the tourists as they left. Marshall regularly recounted the story, noting the tourists' puzzlement and then confusion as they watched him walk off, and later realized who he was.
    But Burger genuinely liked Marshall. After all, Burger had been a leader on a biracial committee in St.