9.
EVERY FRIDAY THAT THE SUPREME COURT IS IN SESSION, the justices meet for a conference to discuss the cases, take informal straw votes to determine where each justice stands, and assign who is in charge of writing the majority opinion. The conference is a unique space because it is only the nine justices in the room. No aides, no note takers, just the nine talking freely. The conference room is oak paneled with a mahogany table and a portrait of John Marshall, the first chief justice of the Supreme Court, looming over the proceedings. The justices arrive at 10:00 a.m. and shake hands before taking their spots. They discuss each case in order of seniority, beginning with the chief justice and moving down the table toward the junior justice, who in 1973 was William Rehnquist. The junior justice sits by the door and can occasionally open it to send a note in or out as the discussion continues.1
At the conference after the Almeida-Sanchez oral arguments, five of the justices, Warren Burger, Harry Blackmun, Lewis Powell, William Rehnquist, and Byron White, voted to sustain the Ninth Circuit Court’s ruling granting the Border Patrol the right to make the stop. Chief Justice Burger assigned the duty of writing the opinion of the court to Byron White.
As a young man, White had been an excellent football player. He finished second in the Heisman Trophy voting as a senior at the University of Colorado and was drafted by the Pittsburgh Pirates of the National Football League. White was the leading rusher in his first season in the NFL, then left for England to take up a Rhodes Scholarship at Oxford. He returned to Yale Law School and played football for the Detroit Lions. His legal career was shaped by his friendship with Robert and John F. Kennedy. White first met the future president in Europe in 1939 and their friendship continued in Washington, D.C., after the war, when Kennedy was a new congressional representative from Massachusetts and White was a Supreme Court clerk. White returned to Colorado to practice law and was tapped by Kennedy to help with his presidential campaign in the state in 1959. After Kennedy won the presidency, White became an assistant attorney general to Robert Kennedy.
When Charles Whittaker resigned from the Supreme Court on March 31, 1962, after suffering a nervous breakdown due to the stress, Kennedy nominated the forty-four-year-old White, who was quickly approved by the Senate in a voice vote. White did not have a rigid ideological position, but generally was on the conservative side of issues. He was strongly against communism and supported the police, as demonstrated by his dissent in the Miranda case. He also wrote an impassioned dissent in Roe v. Wade.
White began to write his opinion in Almeida-Sanchez, which would defer to the congressional authorization that allowed the Border Patrol to search any vehicle they wanted to in the border zone. His opinion was sure to retain the support of three of Nixon’s law-and-order appointments, Burger, Blackmun, and Rehnquist. Lewis Powell also voted with the conservatives at the Friday conference.
Powell generally wanted to abide by precedent, but he thought Fourth Amendment protections were less important than other parts of the Bill of Rights. If the individual was innocent, then the search would not find anything and no harm would be done, but if they were breaking the law, then the search would demonstrate that.2 Throughout his life, Powell always tried to do what was right, and he tended to believe others in positions of authority did the same. Consequently, his inclination was often to side with law enforcement and trust they would use their power fairly.3
One of Powell’s clerks, however, felt strongly that the Almeida-Sanchez stop violated the Fourth Amendment.4 Powell was an open-minded justice and carefully considered all possibilities before coming to a decision, particularly in areas outside his expertise in business law. Powell asked the clerk to write a memo making the argument and promised not to make a final decision on the case until he read it.
While White was writing the majority opinion allowing the searches, Potter Stewart was crafting a sharp dissent that decried the scope of the waiver of the Fourth Amendment. Stewart was a conservative justice who had been nominated to the court by Dwight Eisenhower in 1958, but he strove to make limited judgments based on the facts of individual cases, which reduced his influence and resulted in little scholarly attention to his work. He is perhaps best known for his concurring opinion in 1964 in Jacobellis v. Ohio about defining what counts as obscenity when he coined the phrase, “I know it when I see it.”
Stewart also knew a violation of the Constitution when he saw it, and his draft dissent in the Almeida-Sanchez case was filled with righteous outrage. The first paragraph called the idea that the Border Patrol could stop any vehicle in the border zone a “gross violation of the Fourth Amendment” that gave the Border Patrol an “extravagant license to search.” The next paragraph pointed out that since the one-hundred-mile zone was from coastlines as well, Washington, D.C., was also covered by the ruling: “A quick glance at a map of this country will indicate just how many populated areas are within 100 miles of an external boundary. It might come as a surprise to residents and visitors in the city of Washington D.C., for example, to learn that there are a statute and a regulation purporting to authorize federal agents to stop and thoroughly search their cars on the streets of this city at any time and with no probable cause, in alleged pursuit of illegally entered aliens.”
Stewart also wrote, “This strikes me as an extraordinary piece of constitutional logic, and a complete abdication of the duty of judicial review . . . I thought it settled since Marbury v. Madison, that the insistence of a congressional enactment is only the starting point of constitutional analysis, not its conclusion.” Essentially, he was asking, Why do we even have courts if we are going to give the legislature carte blanche to invalidate the Constitution?
Potter Stewart was Lewis Powell’s closest friend on the court. Given their conservative but moderate judicial approaches, they tended to vote together on most cases. However, Powell was a more measured man. On his copy of Stewart’s draft dissent, he underlined each of the above flourishes and even wrote “absurd” next to the line about Washington, D.C. In other places he scribbled “no” and “I can’t go with this.”
As the end of the term neared, Powell decided to join Byron White’s majority opinion that allowed the search and sent White a memo confirming his vote. Powell’s clerk who had concerns about the Fourth Amendment was furious and convinced Powell to reread the memo the clerk had written about the opinion.5
Powell considered the memo and then reread White’s opinion. He wavered, then changed his mind. After thinking more about it, he decided he could not accept White’s contention that the Supreme Court should defer to Congress on a constitutional question.
On June 8, 1973, just weeks before the end of the term, Powell sent another memo to White and Stewart, changing his vote on the case. Because the other justices were split 4–4, Powell’s change of heart swung the majority to Stewart’s opinion ruling that the Border Patrol’s search without a warrant or probable cause was unconstitutional. Powell opted to concur with the result of Stewart’s opinion, but not the reasoning. Nevertheless, he convinced Stewart to rewrite the contentious sections. In the end, none of Stewart’s rhetorical flourishes quoted earlier ended up in the final opinion of the court.
The result was that the Supreme Court invalidated the Border Patrol’s fifty-year-old practice of searching any car they wanted in the border zone. Instead, the Supreme Court found that the Border Patrol had to abide by the Carroll doctrine, which required probable cause and exigent circumstances to search a vehicle, just like every other law enforcement officer.
Supreme Court justices are always upset when they lose the majority for their opinion, and White was not happy to have the opinion taken away from him in the final days of the term. Powell and White already did not get along, with White often frustrated with Powell’s careful desire to think through both sides. White once broke a pencil in Powell’s face, saying he should “make up his damn mind.”6
After White lost the majority in Almeida-Sanchez, he sent Powell a lighthearted memo that recounted the experience of a baseball player named Al Bumbry. Bumbry was on first base when the batter hit a fly ball. Bumbry thought the ball had no chance of being caught, so he eagerly ran all the way to home base. Only then did he realize that the fly ball was indeed caught, and he was easily thrown out at first base.
Powell read the memo from White, but although he had been a baseball player as a young man, he did not know what to make of it. Was White complaining about all the lost work toward the opinion he thought was sure to be approved? Powell wrote back guardedly, “Although I may ask Harry to interpret for me the precise import of your parable of Bumbry’s being caught off base by 95 feet, I take it that Potter’s opinion will now become that of the court . . . I am a bit contrite at unwittingly causing you to classify yourself with Al Bumbry, although on the baseball diamond (at least) I would still consider this quite a compliment.”7
When the 5–4 ruling was announced less than two weeks later on June 21, 1973, it was a resounding and unexpected victory for the upstart lawyer John Cleary and the Federal Defenders of San Diego. The ruling meant that the conservative Burger Court had overruled the more liberal Ninth Circuit and sided with a defendant against law enforcement. Powell and Richard Nixon’s other three appointments had been meant to rein in the exclusionary rule, but instead Powell had expanded it. Condrado Almeida-Sanchez was released because the evidence from the illegal search was suppressed.
Stewart’s final opinion for the court stated, “It is clear, of course, that no Act of Congress can authorize a violation of the Constitution.” Stewart acknowledged that border crossings and their functional equivalent do afford the government more authority to conduct searches without a warrant: “But the search of the petitioner’s automobile by a roving patrol, on a California road that lies at all points at least 20 miles north of the Mexican border, was of a wholly different sort. In the absence of probable cause or consent, that search violated the petitioner’s Fourth Amendment right to be free of ‘unreasonable searches and seizures.’”
Powell wrote an eleven-page concurrence that agreed that legislation from Congress cannot invalidate the Constitution, but also laid out his conflicted view that would shape his decisions in the Border Patrol cases that would arrive before the court over the next few years. For Powell, while it is reasonable to search everyone at a border crossing point, it is not reasonable to do so in the interior of the United States. “One who travels in regions near the borders of the country can hardly be thought to have submitted to inspections.”8
Instead, Powell suggested that the Border Patrol get warrants if it wanted to search in the interior of the United States. He suggested an “area warrant” that was not specific to an individual suspect but rather gave agents the authority to make stops in a particular location for a defined period of time. His concurring opinion listed factors that could be used to justify a warrant: “(i) the frequency with which aliens illegally in the country are known or reasonably believed to be transported within a particular area; (ii) the proximity of the area in question to the border; (iii) the extensiveness and geographic characteristics of the area, including the roads therein and the extent of their use, and (iv) the probable degree of interference with the rights of innocent persons, taking into account the scope of the proposed search, its duration, and the concentration of illegal alien traffic in relation to the general traffic of the road or area.”
With the conspicuous absence of race, these facts presage, almost word for word, some of the articulable facts that Powell would use in his opinion in the Brignoni-Ponce racial profiling case the court would hear two years later, in 1975. Additionally, the Border Patrol would draw on Powell’s concurrence to test out the idea of area warrants, which became one of the primary issues in the Martinez-Fuerte case that would reach the court in 1976.
In the end, the Almeida-Sanchez ruling opened up more questions than it answered. John Cleary, Chuck Sevilla, and the lawyers of the Federal Defenders of San Diego left the court ebullient. They had miraculously won the case and convinced the conservative Burger Court to rein in the Border Patrol.
Cleary and Sevilla redoubled their efforts and included motions to suppress evidence from all Border Patrol stops for their clients. By the fall of 1974, there was a new round of Border Patrol–related cases before the court, as the legitimacy of the regulation was suddenly up for debate. The Almeida-Sanchez decision resolved the issue of searches away from the border, but the issues of stops by roving patrols like in the Brignoni-Ponce case and of interior checkpoints like the one at San Clemente on I-5 were still not settled. Was it possible that Richard Nixon’s law-and-order Supreme Court would decide to overturn those as well?