Free The Brethren by Bob Woodward, Scott Armstrong Page B

attentive during Black's tirade. One hand rested near his grandfather's gold watch chain strung across the vest of his dark suit. Harlan had worn the same conservative suits, ordered by mail from London, virtually every day since he had come to the Court fourteen years before. Gaunt and ramrod-straight, he had a commanding presence. An ulcer operation had removed half his stomach, and he had no ex tra weight on his lean, 6-foot1 frame. A Wall Street lawyer from a wealthy family, private schools, then Princeton and Oxford, John Harlan was the quintessential patrician, generally unflappable and unfailingly courteous.
    His grandfather, named for the country's fourth Chief Justice, John Marshall, had been a Justice for thirty-four years. He had been known as the "Great Dissenter," the only Justice to dissent in the famous nineteenth-century case Plessy v. Ferguson, which had permitted segregated schools until it was finally overturned by the 1954 Brown ruling. Like his grandfather, Harlan viewed the law as almost a religious calling. Despite—and also because of— his near-blindness in the last few years, Harlan was the Court's hardest working member. He read about 150 words per minute, bent over, his eyes nearly touching the paper. Yet he was the Court's most prolific writer. No matter how insignificant the disagreement or how minor the case, Harlan felt compelled to spell out his views for the sake of intellectual honesty. He made one exception to that rule: school desegregation cases.
    Harlan had been the "conservative conscience" of the Warren Court, a frequent dissenter. He advocated restraint rather than activism. Despite his disagreements with Black, the two were as close as brothers. Harlan felt that he understood Black's concerns, particularly his guilt and anguish over "all deliberate speed." Yet he was offended by Black's speech, not because of the attack on Nixon—that was just Hugo—but because an order was no way to decide a major case. It would be preposterous for the Court just to say "Do it now," without offering any reasoning. The district and appeals courts needed guidance, and that required an opinion.
    Black was being too emotional. Ever since his stroke, Black had been increasingly unpredictable, testy and belligerent, Harlan thought. "Difficult," Harlan called it. Black wanted to decide this case in a spasm of indignation. Harlan would not allow it. For years, internal disagreemerits had been festering among the Justices on the difficult details of desegregation. They had subordinated those disagreements to maintain their united front. Harlan felt that this might be the case where their differences might erupt into public view. In the current climate, the shattering of the Court's unanimity could set the Court and the country back several years or decades. But Black had laid down a challenge: Do it my way or I'll take those risks. Black was tinkering with the bottom line—unanimity.
    Harlan said he agreed that delay should be rejected out of hand in strong language, but in a well-reasoned opinion. He would go along with much of what the Inc. Fund wanted—taking the case away from the federal district court in Mississippi and making sure there would be no long arguments over plans. But he was not going along with any notion of immediate desegregation. The Court— the Warren Court—had been criticized too often for its pie-in-the-sky views. Now the Burger Court had to show consideration for the realities. Instant desegregation was impossible.
    Harlan also strongly disagreed with Black's notion that "all deliberate speed" was at the heart of the delays. Another phrase, or no phrase at all, would not have helped. The problem of achieving desegregation in the South was intractable, destined to take a long time no matter what the Court had said fifteen years before. But Nixon and his administration were also a new reality. Harlan was deeply suspicious of Nixon's motives. To affirm the Court of Appeals, as