10.
OVER THE SUMMER AND INTO THE EARLY FALL, THE SUPREME Court faces the daunting task of deciding which of the thousands of cases that are appealed to the court should be heard that term. Prior to Lewis Powell’s arrival on the court, it was the practice of each justice’s chamber to review all the cases and decide which ones to grant a writ of certiorari to hear the case and which to deny. Powell realized that the majority of these were easy decisions, and it was a huge waste of time for each justice to put together their own summaries of the cases. Instead, he began a pool with other interested justices in which a clerk from one justice would provide a neutral summary of the case for the other justices to consider, freeing up clerks for other work.
The summary memo for the case of Felix Brignoni-Ponce was written by John O’Neill, who was a clerk for William Rehnquist. A few decades later, O’Neill would arrive in the national political spotlight as the primary spokesperson for the Swift Boat Veterans for Truth, a group that opposed John Kerry’s run for president and produced political ads questioning his military service in Vietnam. A number of the other clerks involved in the 1974 term also went on to prominent careers: Joel Klein, who became the superintendent of the New York Public school system, was a clerk for Lewis Powell; Richard Blumenthal, the U.S. senator from Connecticut, was a clerk for Harry Blackmun.
O’Neill’s summary memo on September 17, 1974, describes the facts of the Brignoni-Ponce case: the inclement weather that closed the checkpoint near San Clemente, California; the positioning of Agents Brady and Harkins’s vehicle to shine headlights across I-5 into passing vehicles; and the decision to stop Brignoni-Ponce’s car based only on the fact that the occupants looked Mexican.
Brignoni-Ponce was found guilty in his initial trial, but the Ninth Circuit Court of Appeals had overturned his conviction after the Almeida-Sanchez ruling. O’Neill summarized the Ninth Circuit decision, which found that the Border Patrol needed to have reasonable suspicion to make a stop. The ruling stated: “Here, the border-patrol agents who stopped Brignoni-Ponce’s car did not possess facts which constituted a founded suspicion that he or his passengers were illegal aliens. All that they knew was that Brignoni-Ponce and his companions appeared to be of Mexican descent and were in a sedan traveling north on Interstate 5, approximately 65 miles north of the border. This is not enough.” The unanimous Ninth Circuit Court concluded: “The conduct does not become suspicious simply because the skins of the occupants are nonwhite.”1
The government’s brief in the case was signed by Solicitor General Robert Bork, himself a later failed nominee for the Supreme Court. Bork argued that the Almeida-Sanchez ruling said that only a search by the Border Patrol required some form of reasonable suspicion, what the Ninth Circuit referred to as founded suspicion. A brief stop for questions did not. Instead, the government argued that the suspicion does not have to be particular to an individual or vehicle, but “It may be based, instead, upon knowledge of conditions in the area as a whole.”
The brief goes on to refer to the congressional authorization for the Border Patrol, the language of which was largely unchanged since it was first written in 1925.2 The first section of the authorization allowed stops anywhere in the United States if there is probable cause that someone is in the country illegally. The Border Patrol cases hinged on the third clause of the law, which was limited to the one-hundred-mile zone. The brief contended that the wording of the congressional authorization meant that a stop to “board and search” for undocumented immigrants by the Border Patrol does not require any cause or suspicion. Instead, any stop in the border zone, the government’s brief emphasized, was permitted by the law.
O’Neill wrote that the government “states that many cases are pending in which this point of law will be crucial and that the uncertainty resulting from the split as to standards governing such stops has seriously undermined the Border Service’s effectiveness.”3 In his copy of the memo, Powell underlined the point that many similar cases were pending. Given the conflict between the lower courts and the government’s desire for clarity, O’Neill recommended that the court take it up. For a case to be heard by the court, four of the justices need to grant a writ of certiorari. For Brignoni-Ponce, eight justices granted it, with only Potter Stewart passing on it.
Penny Clark, one of Powell’s new group of clerks, jotted a note to him on the memo: “Here is yet another Almeida-Sanchez issue, not mentioned in my Hendrix memo. It is another conflict between CA9 and CA10, this time over the application of A-S to stops rather than searches. Anticipating your view on the subject, I would recommend that this be granted to reverse CA9. But in any event, this should be discussed along with other A-S cases. As Ron [Ronald Carr, another of Powell’s clerks who died in 1995] commented, ‘Oh, what a tangled web we weave . . .’”
Penny Clark never thought of becoming an attorney.4 She was one of the first in her family to go to college, but she excelled as a double major in English and Spanish. After graduating, she took a job at a legal aid society that was looking for a bilingual typist and quickly realized that she was fascinated by the law. Clark graduated first in her class at the University of Texas law school and clerked for Braxton Craven Jr. at the Court of Appeals for the Fourth Circuit before joining Powell’s staff. Clark was Powell’s first female clerk and, really, the first female lawyer he worked closely with. Powell’s Richmond upbringing was traditional and there were not any women partners at his law firm. None of his associates at the firm was ever a woman either.
Clark’s note to Powell also included a prescient assessment of the motivations of the Border Patrol and the solicitor general. It seemed to her that “the gov’t is more interested in establishing a principle than in winning a case.”5
The Oral Arguments
The Brignoni-Ponce case about stops based on racial profiling was heard along with three other Border Patrol cases, Bowen v. United States, United States v. Ortiz, and United States v. Peltier, on Tuesday, February 18, 1975. Bowen and Peltier were about whether the Almeida-Sanchez ruling that required probable cause for searches by the Border Patrol could be applied retroactively, while Ortiz considered whether Almeida-Sanchez also applied at the Border Patrol’s interior checkpoints.
Seated in front of the justices, representing the government, was Andrew L. Frey, the deputy solicitor general of the United States. Frey had already argued eight cases in front of the court in previous terms, winning six and losing two, but one of those two losses was significant. In the 1972–73 term, Frey lost in Bronston v. United States, which tightened the perjury standard in federal cases and required investigators to ask precise questions for the statute to apply. The ruling is still in effect and played a role in the exoneration of Bill Clinton in the impeachment trial in the Senate in 1999.
Felix Brignoni-Ponce was represented by John Cleary and Chuck Sevilla, who had won the Almeida-Sanchez case two years earlier. Cleary handled the oral argument for this case, while Sevilla argued the Ortiz case later in the day. A few weeks before the appearance, Sevilla had broken his leg playing basketball, so he hobbled in on crutches. When he told a friend that he was arguing his first case before the Supreme Court, the friend said, “Break a leg,” to which Sevilla replied, “I already have.”6
Oral arguments typically last one hour, with each lawyer given thirty minutes to make their case. The petitioner is asked to speak first, in this case the government appealing the Ninth Circuit Court’s ruling in favor of Brignoni-Ponce. Chief Justice Burger initiated the session by calling on the government: “Mr. Frey, you may proceed.” Frey stood and responded in the customary, “Mr. Chief Justice and may it please the court.”
Frey was experienced in front of the court but he got off to a rocky start. Although oral arguments are dramatic and can help develop lines of reasoning that make it into the final opinion, many justices have already carefully read the case histories, the briefs of the parties, and the many amicus briefs submitted by outside parties in favor of one result or another. They have typically already decided where they stand on the issue and are instead looking to probe those arguments and draw out the litigants by testing their claims and, in the process, convincing the other justices. Consequently, they are not patient with lawyers who use their few minutes in front of the court recounting the details of the case or establishing the facts, which by this point everyone already knows.
Nevertheless, Frey fell into this trap. He began by summarizing the Ninth Circuit Court’s reversal of Brignoni-Ponce’s conviction and the government’s position that the evidence from the stop should not be suppressed. Then, inexplicably, he began listing the facts of the case, all things the justices already knew. Finally, almost seven minutes into his remarks, Frey moved on to make the crux of his argument: in the border zone, the Border Patrol has the right to stop all vehicles, briefly, to inquire about citizenship.
Harry Blackmun asked, “Let’s see if I follow you there, Mr. Frey. In other words, if this were in Chicago, you wouldn’t be defending it?”
Blackmun’s question indicates that some members of the court did not fully comprehend what the one-hundred-mile border zone meant in 1975. Although Potter Stewart’s fiery first draft of his opinion in the 1973 Almeida-Sanchez case had pointed out that the one-hundred-mile zone also applied to coastlines and the Canadian border, in their deliberations in Brignoni-Ponce, the court seems to have only considered the implications at the Mexican border.
Frey said, “Well, we would have to look at the circumstances. We would not—we do not assert a right to stop cars on a random basis or without particularized suspicion in Chicago.”
Despite Frey’s assurance to the contrary, that is exactly what the government was defending. The Border Patrol considers Lake Michigan an international waterway, so Chicago was, and still is, in the border zone.
Stewart then asked Frey to explain how the government’s position was different from the Terry decision, the stop-and-frisk ruling that said the police did have the right to stop and question pedestrians without a warrant if they had facts of reasonable suspicion. Frey noted that while Terry applied to pedestrians, the difference here was that they had to stop a vehicle to conduct the interrogation.
Frey said, “If he were a pedestrian, I think there would be a basis for arguing that you could go up to him and simply say ‘I’m an officer of the immigration service and . . .’”
Stewart jumped in: “Did you see a man go by here in a white hat?”
Frey then completed the thought, as there were quiet chuckles in the room. “Or indeed, are you a citizen of the United States?”
Stewart agreed: “Or are you a citizen of the United States.”
Byron White was not enjoying the light moment and returned the discussion to the key questions: “But you want to do more than that, don’t you?”
Frey responded, “Yes.”
White pushed further. “You’re suggesting you can not only stop but you can hold them until you ask the question?”
Frey agreed. “That’s correct.”
Now nine and a half minutes into his time, a third of his total, Frey tried to state the core argument of the government. “We . . . When I get into the legal portion of the argument, we’re suggesting that—”
But White wanted a clarification on the claim that the government could hold people without a warrant. He pressed Frey to explain where the government was saying they could stop and briefly detain vehicles. Frey responded that the border zone is what makes the difference, and they can stop and briefly detain anyone there, including citizens.
Until Powell’s last-minute reversal in Almeida-Sanchez in 1973, the Supreme Court had been poised to say that the Border Patrol could search any vehicle in the one-hundred-mile zone. Now the question was whether they could even stop a vehicle and ask them a few questions.
Frey explained that Congress gave the Border Patrol the ability to stop any vehicle in the zone for a brief interrogation. “We say this is necessarily included within the power to search is the power to stop.”
White then asked if that meant they could stop anyone randomly. Did they need suspicion?
Frey answered, “No. We say that we have the power to stop randomly.”
At this point, the issue of race came to the front of the discussion. Harry Blackmun pointed out that Frey’s argument “makes irrelevant in this case that they thought these looked like Mexicans, they thought they were Mexicans, or anything else?”
Frey agreed. “I think it’s completely irrelevant. Now, I could picture a case in which the individual stopped was let us say a sixty-year-old lady who was alone in her car and who was clearly Anglo-Saxon, and her car was stopped for simply for the purpose of asking her about her citizenship and—”
Potter Stewart jumped in, ever the comedian. “She might be Norwegian . . .”
Frey continued, “She might be, that’s true. But of course, the conditions in the Mexican border area that justify the power that we are asserting here and that we say make this case distinguishable from Terry’s articulated particularized suspicion requirement, it’s applicable to Mexicans.”
William Brennan asked, “You said earlier, you thought there might be a distinction between the old lady driving the car and these people, and I swear I don’t understand this.”
Brennan was nominated for the Supreme Court by Eisenhower and approved in early 1957 by the Senate, with only Senator Joseph McCarthy voting against him. Brennan served on the court until 1990 and was, according to Antonin Scalia, “probably the most influential justice of the century.”7 He wrote the second most opinions in the history of the Supreme Court, after William O. Douglas. Brennan was effective at influencing his colleagues, and he worked throughout his time on the court to expand individual rights, particularly those enshrined in the Bill of Rights. Consequently, he would be expected to be skeptical of the government’s claim that they could stop any vehicle for any reason in the border zone.
Frey started to reply about what he would do if he were representing the old lady against the government, which drew rebukes from the bench because he was, of course, the government. Frey took a deep breath and then said sheepishly, “I’m trying my best.”
White and Brennan were both impatient with the solicitor at this point and asked angrily, “What is the answer?”
Frey stammered, “The distinction is that—is that—it’s not—I’m saying that we have a right to stop anybody.”
The audience chuckled as Stewart joked again, “Those old ladies can very suspicious sometimes.”
As Frey’s time ended, Bryon White asked a question that caused Frey to stumble into another blunder. “But if they say ‘go about your business, I don’t want to answer a single question,’ you’re not supposed to hold them? Here, you say you can hold them to ask them questions, what is it?”
Frey tried to reply but went the wrong way. “Well, I’m—we say we can hold them here. I don’t see that is fruitful really to get into the—we say that this is different.”
White broke in: “Oh, it’s fruitful, and it is so fruitful that the Ninth Circuit—”
Frey, rather than backtracking, dug in: “Well, now the reason the Ninth Circuit thought we were wrong unanimously, I believe was a product of a superficial analysis of the issues on their part, and the same superficial analysis it seems to me is contained in the respondent’s brief.”
Frey had called the unanimous decision by the full Ninth Circuit Court of Appeals “superficial.” After another minute, he decided to stop. “I think I’d like to save a couple of minutes for rebuttal if I may.”
“You Can’t Use Race Alone”
Chief Justice Burger turned it over to John Cleary to speak on Felix Brignoni-Ponce’s behalf. After the obligatory “Mr. Chief Justice and may it please the court,” Cleary began with a quip about what Frey called his brief: “I don’t mind having my brief called superficial if the en banc Ninth Circuit’s reasoning is called superficial.”
Pausing briefly so the justices could appreciate the point, Cleary then summarized the case law on the Fourth Amendment that made this particular stop unconstitutional. He concluded that the Supreme Court had ruled in 1968 in Terry v. Ohio that the police needed more than a hunch to stop and search someone. The Border Patrol did not have it in this case. After going through the legislation that led to the current border exception, he got to the point: “We’re dealing with a fundamental right.”
Potter Stewart asked, “The Ninth Circuit, it’s now settled after this case I gather, requires what it calls a founded suspicion for a stop, is that it?”
Cleary replied, “That is the fact, Your Honor. It requires a founded suspicion to believe that there’s illegal aliens . . . for any interdiction of highway traffic, there must be founded suspicion.”
Cleary then proceeded to build up steam toward one of his strongest lines of the argument: “Can they say that a person who appears to be of Mexican descent in the area of Southern California contiguous with the Republic of Mexico constitutes some rational basis, reasonable suspicion that that person is an alien?” After pausing for effect to let his question sink in, he went on, “I would contend if such ever was the case that would be rank racism.”
Stewart, taking in Cleary’s point, noted that the statute does not say there has to be a rational ground for the belief an individual is undocumented but simply the belief on the part of the officer. Surely, they would not make the stop if they did not believe it.
Cleary argued that the belief needed to be based in articulable facts, not a hunch, and there needed to be more than one fact. This mirrored Powell’s concurrence in Almeida-Sanchez two years before and, with what Cleary said next, would inform Powell’s eventual decision in this case.
Cleary said, “There must be at least two criteria. One, suspicious circumstance, and two, objective articulable facts, and we contend that the Ninth Circuit’s construction is consistent with the statute, that implements the statute and at the same time gives validity to the Fourth Amendment. The more important thing is that the hunch of the officer can be used and abused. In this case, we make note of that because here, the only articulable basis given in cross-examination was that the person appeared to be of Mexican descent.”
Cleary outlined for the first time how the case could be decided. He advocated strongly for his client, Felix Brignoni-Ponce, but not necessarily all people of color at the border. He argued that in this specific case the only factor used by the agents was the perceived Mexican appearance of the passengers in the car, and based on the case law, that was insufficient grounds to make a stop. However, he also hinted at the compromise position that he returned to at the end of his time. With multiple facts of reasonable suspicion, the Border Patrol had more than a hunch and could make a stop.
Cleary explained, “It’s our contention that you can’t use race alone,” but “possibly as one of many factors it can be used. It might be used in many other things.”
At this point, the young conservative justice William Rehnquist joined the questioning, perhaps having seen the opening he was looking for. “Well, Mr. Cleary . . . what factors does he use in reaching his initial determination of believing a person to be an alien? I mean, what would you suggest?”
Cleary suggested a multiplicity of factors. When Rehnquist pushed him to be specific, he hedged and began to backtrack a bit, arguing that race and appearance might not be useful factors. Cleary noted the government brief said that Mexicans are thinner than Americans, to which he said, “How many fat aliens have I represented? You can test because they have coarse hands, that they wear coarse clothes. They have their hair cut in a certain way.” He added with an audible grunt of disgust, “I’ve had my hair cut once or twice in Tijuana.”
It was a funny line, but the damage was done. Cleary had suggested a way for the court to rule in favor of his client in this specific case, but at the same time to establish the principle that the government was seeking in relation to the Border Patrol, which Powell’s clerk Penny Clark had surmised was the entire reason they appealed the case to the Supreme Court. Cleary’s oral arguments identified a middle ground that required multiple articulable facts of reasonable suspicion in order for the Border Patrol to stop a vehicle. Just one factor, the Mexican appearance of the driver, was not enough, but paired with other factors, race could contribute to the decision to make a stop. The court adjourned and now the decision was in the hands of the nine justices.