Chapter 8 Chapter 5: Drifting away and leaving no books

On November 1, 1974, before the Christmas break, a memorandum from Chief Justice Burger began to circulate among the justices.He suggested holding a Christmas party with the justices and the entire Supreme Court staff.As for the time, he believes that December 23 is of course the most ideal, but December 12 and 19 also seem to be good.William Douglas responded promptly, and circulated the reply to the other justices. "Dear Chief," the reply began, "the Supreme Court Christmas party is always a good one, so why not have three in a row this year, a quiet warm-up on December 12th, gradually warming up on December 19th, and December 12th. The show on the 23rd made everyone's enthusiasm fully bloom!".

Such was Douglas's personality: sardonic, provocative, and unabashedly contemptuous of Earl Warren's successor.And it's all too easy to laugh at Berger's conformist rules.Berg always tried to keep this group of old men with different personalities and very difficult to deal with together, and it was inevitable that he would often humiliate himself.Take the justices’ birthdays as an example. Once someone’s birthday is celebrated, Berg always likes to gather all the justices to the restaurant and drink red wine to celebrate his birthday. He doesn’t care whether these 65-year-old or 75-year-olds are in the mood to celebrate their birthday with everyone. .Moreover, once someone celebrates their birthday during the summer closed period, they have to wait until the new session begins and all the justices gather before holding a birthday banquet. Berg’s own birthday is September 17, which is also the 1879 Philadelphia Constitutional Convention Represents the day when the new constitution was signed.For such celebrations, Berger's memos often read: "To all those who have birthdays in September and October, we will celebrate them at a luncheon on Tuesday, September 29."

An aging Douglas was making fun of the chief justice in various ways, but William Rehnquist wanted to do more to strengthen the cohesion of the justices.Rehnquist just turned 50, the youngest member of the Supreme Court in nearly a decade.He has never been a judge, and he missed the opportunity to become the Minister of Justice. The relatively isolated and slightly alienated way of interpersonal communication between the Supreme Court justices also made him very uncomfortable.He intends to look for opportunities to enliven the social life of the Supreme Court, at least to lighten the atmosphere a little.For example, at the end of the 1972 court session, Rehnquist notified all his colleagues that he had found an article called "To a Law Clerk Dying Young" (To a Law Clerk Dying Young) in the pile of old papers in his office. Poetry draft.The author of the poem, he said, "was named Schmeckman, or Schmeckman (in illegible handwriting, not very recognizable) who apparently was a judge's clerk here." Heartfelt and moving" is quite "suitable for public recitation at gatherings" (Of course, there is no record that the Supreme Court later held such a poetry reading, nor can it prove that the poem actually existed.

The following year, a memorandum written by Rehnquist began to circulate among the justices, and he made more innovative proposals.One of them is to set aside a period of "coffee time" after the end of oral arguments every day for the justices and their judges to exchange feelings. “I thought it would be demoralizing to hobble back to the office after a day of verbal debate,” Rehnquist wrote.He also complained that the dining room of the justices "although luxurious and elegant and quaint, gave people a gloomy and dreary feeling." Berg was not enthusiastic about Rehnquist's proposal, because everyone was busy and no one could move. Time for coffee. "I personally can only stay there for a while, or not participate, there are only two possibilities." Berg added to the letter to Rehnquist: "My biweekly dinner with my clerk , it’s hard to find time to attend now.”

The Christmas party gives Rehnquist a new chance. "I've collected some satirical comedy, maybe I can perform it at the Christmas party." He informed the other justices in a memo. "You can get a few people to imitate some of the senior members of the Supreme Court: the chief, Douglas and Brennan." He said that he would find a few clerks to perform, but added: "If people think this is not appropriate, just be I didn't say anything." There is no record of what program was staged at the party that day.Still, at least two senior justices were amused by Rehnquist's proposal. "I certainly have no objection if you're going to find a few people to imitate the three senior members," Douglas said to him. Gentlemen." At the end of the letter, he also specially added a sentence: "According to my understanding of the First Amendment to the Constitution, you enjoy absolute immunity." Brennan's reply was: "I often come into contact with such cases, so , I fully agree with Brother Douglas about the Christmas skit. Of course, including the fact that all the faults are due to the other two."

The rigid orthodoxy of the justices in the audience is in stark contrast to their informality on the bench.The Supreme Court has 4 hours of oral arguments every day, from 10 am to 3 pm, with only 1 hour lunch break in between.In the trial seat, the justices had to entertain themselves by passing notes to each other, discussing various topics, including the progress of the case and the livelihood of the people.With such a long day, not every debate is engaging and the justices are occasionally distracted. "Bill—you've been eerily quiet today! Are you all right?" Blackmun asked Brennan. "I'm just bored, that debate was really bad," Brennan replied.

Blackmun kept these little notes.Most of them are torn from scratch pads with Supreme Court letterhead, and they have the justices' scribbles on them, reflecting the life of the Supreme Court. "Do you want to do my job?" Berg wrote these big characters on the note paper passed to Blackmun.It was early 1974, and Berg had just been thrown into a rage in court. In 1973, when the Supreme Court heard a sex discrimination case, Douglas sent a note with his evaluation of Jane Pickle.Pickle, an attorney for a female teacher, is challenging a school district's policy of refusing to pay female teachers during labor.Douglas' note read: "How do you think this lady's situation can be improved—such as where to eat?" Porter Stewart's beloved "Cincinnati Reds" play in a major league game in October 1973 Lost to the "New York Mets" His clerk handed him a note, which he scanned and then passed to Blackmun, which read: "Vice President Agnew resigns! Mets beat Red 2-0 people."

Blackmun kept his attention on the trial by taking notes that were concise and contained little nonsense.With an ordinary pencil, he will jot down the key words, main points or concepts of the lawyer's speech.Sometimes I write down my opinions with a green ballpoint. “Let’s get started!” he wrote in 1977, when the affirmative action case, Regents of the University of California v. Bakke, began. He sometimes grades the performance of lawyers based on different criteria: sometimes with letters, sometimes with numbers, such as 1-10 points, or 1-100 points.Occasionally, he would briefly record the appearance of the barrister during the court session. Usually, there was nothing good to say. Some records were just for easy memory and not suitable for publicity. "Finger-licking," he would occasionally describe a lawyer.Sometimes he would simply jot down "bald" or "long-haired" Blackmun's description of Harvard Law School professor Archibald Cox who was the lead government lawyer in the "Bakke case" Yes: "Not good at hearing, too attentive." Only gave Cox 80 points.One of his highest marks was for the performance of Yale Law School professor Alexander Bickel, who represented The New York Times in the Pentagon Papers trial.Bickle received an "A-" and was even described as "cute" by Blackmun, though Blackmun did not take the media's side of the case.Not many women come to the Supreme Court, and Blackmun usually takes note of their attire. “White dress, energy, good girl,” he said of Georgia Assistant Attorney General Dorothy Toth Beasley, who represented the state in Furman v. Georgia ) trial.When law professor Ruth Bader Ginsburg made her first Supreme Court appearance on behalf of the ACLU, Blackmun called her "very accurate." By her fifth appearance, Ginsburg had counted on the Supreme Court The "familiar face", Blackmun wrote down: "The red dress came out."

Blackmun disliked other justices whispering in the bench, as Brennan and White often did.At one point, Blackmun sent Berg a note threatening to walk out of the trial because "I'm going to have to hear the noise all day, and for three hours the noise has been going on and on." Berg The reply said he would send out a memo to the non-conformist about it, but there is no evidence he ever did so.Rehnquist, sitting next door, was sympathetic to Blackmun and tried to make some useful suggestions.He once wrote a note in response to Blackmun's complaint, which said: "You can choose the right moment to say to the lawyer, can you speak louder, I can't hear you, we are having some internal discussions in the trial bench, I don't think it's inappropriate to say that." Another time, Rehnquist tried to explain Brennan's behavior: "Some debates are really boring, and I think Bill already knows how to vote before the court starts. .But he should have stopped a little (like Byron) so as not to interfere with the hearing, let alone give the lawyers the impression of being rude. Wouldn't it be better to remind them at the right time?" Despite Blackmun complaining a lot In 2010, he also left a note saying "This is really a rude court", but he never had a conflict with those unruly judges.

In the early 1970s, the Supreme Court heard 140 cases a year. Compared with the number of cases that were less than 100 cases a year in the past decade, the efficiency has obviously improved significantly. (In recent years, the Supreme Court has heard only 70 to 75 cases per session. Although Douglas often complains that there is not enough work, most justices are somewhat overwhelmed. Blackmun arrives at the Supreme Court at 7 a.m. every morning, For breakfast with clerks in the coffee shop, he always orders a scrambled egg and two slices of raisin toast. He usually stays in the courthouse until 7 pm, often alone in the Supreme Court library for the justices. In 1972, Powell put forward a proposal for a mechanism innovation: each justice sent their assistant judges to review and select thousands of applications for review orders , This is the later famous "Cert Pool" (Cert Pool). He personally reviews the work of his assistants, correcting not only errors in spelling or punctuation, but also the accuracy of citations in draft opinions. Few justices have been as meticulous as he .

Not only the pace of work, but also the types of cases on the pending case list during this period are dazzling. In one week in February 1974, the Supreme Court pronounced judgments on 4 cases, with a total of 307 pages of judgments.Of these, Blackmun wrote three majority opinions: one concerning the Freedom of Information Act (Renegotiation Board v. Bannercrqft Clothing Co., Inc.) and one Two cases concerned welfare policy within Indian settlements (“Morton v. Ruiz” and another involved a dispute over state boundaries (“Mississippi v. Arkansas” [Mississippi v. Arkansas]). The first case ended in 5 voted to 4, the second was a unanimous verdict, the third case outraged Douglas, and he alone issued a dissent. In the first case, the majority with Blackmun included almost all Representatives of various ideologies of the Court, they are Berger, Brennan, White, Rehnquist. In fact, the new justices will find that it is easy to form a loose group within the Supreme Court, and in another case, the nine may form another group, depending on different issues.It is extremely foolish to think that your opponents will suddenly disappear, or that everyone will be your allies.With many cases to be solved at the same time, a colleague can be an adversary or an ally at the same time. For example, while Blackmun was busy with Roe v. Wade, he was still writing the majority opinion in a bankruptcy case, which would become one of his most famous opinions.In this case called "Unite States v. Kras", among the five members of the majority party, White and Rehnquist were the dissenting parties in the "Roy case", and the minority party four Douglas, Brennan, Stewart and Marshall were all staunch allies of Blackmun in the abortion case.The legal dispute in this case is that the federal law requires bankruptcy applicants to pay 50 yuan in legal fees, even if the applicant is poor, and cannot be exempted. Does such a law violate the constitutional due process clause or the equal protection clause?Robert Callas lived on unemployment benefits and had to support his wife, mother and three children, one of whom had cystic fibrosis.Callas's monthly income is only 366 yuan, but his debts are as high as 6,000 yuan. He hoped to write off this debt in accordance with the federal bankruptcy system, but he was blocked from the court by 50 yuan in court fees.After he challenged the unreasonable fee system, the federal district court in New York upheld his appeal, and the judge declared the relevant law unconstitutional based on a recent Supreme Court decision.In the case, Boddie v. Connecticut, the Supreme Court ruled that Connecticut courts cannot enforce costs in divorce proceedings for dole recipients. According to Blackmun, "those who file for bankruptcy should, morally, pay for it" ^ Callas could have chosen to pay off the bankruptcy proceedings in installments of $1.28 a week for nine months Paid up, however, he opted to appeal to avoid paying bankruptcy costs.He suspects that the case was entirely manipulated by civil rights lawyers, who made protections for the poor a constitutional right by stoking sympathy for the plaintiffs. In a meeting held after the trial, Blackmun found that Powell shared this misgiving.That's "a bogus lawsuit," Powell said, saying that Karras would be able to pay for bankruptcy by skipping three packs of cigarettes a week or one movie a week.The justices ultimately overturned the district court decision in a 5-4 vote, with Berger assigning Blackmun to write the opinion. In drafting the majority opinion, Blackmun felt it was necessary to explain why bankruptcy fees are constitutional.After all, the Supreme Court declared divorce fees unconstitutional less than two years ago in Bodie v. Connecticut.The state monopolizes divorce decisions, he wrote, but "bankruptcy is not the only way for debtors to adjust their legal relationship with their creditors." To pay for it, he pays "less than a movie or a little more than a pack or two of cigarettes" in weekly installments. Byron White, one of the majority justices, told Blackmun that the case involved no discrimination against the poor at all, so there was no point in discussing the Bodie case. Blackmun disagreed, telling White , since the lower court decided on the basis of the "Bordie case", "I tend to face this issue head-on." Discuss.Then came a strong dissent from Thurgood Marshall. "Some people may think that saving two dollars a week is not a burden at all," Marshall wrote, "and that a pack or two of cigarettes is not an everyday life for poor people, but a luxury, and they have no money for it." Going to the movies. The majority thinks that's what people do every week." Stewart and Douglas also demurred.Brennan saw that these opinions had something he agreed with, so he simply signed all the dissenting opinions. White later told Blackmun, "I have decided not to issue a separate opinion on the 'Karas case', but to join your opinion for the time being." Blackmun was quite proud of this, and he wrote on the back of White's letter: " I suspect it was Thurgood Marshall's opinion that prompted Byron White to do it." A year later, Blackmun received a letter from Edward Coleman, which greatly pleased him.Coleman was a defense attorney for the government in United States v. Callas and later became a federal judge.He said in the letter that he was also curious about Callas' ability to pay legal costs. "On February 22, 1973, a month after the verdict, I found out that Mr. Callas had paid the entire cost of the lawsuit in one lump sum," Coleman said.Blackmun replied: "I am not surprised that he can pay this fee. I have always felt that there is something wrong with this case. Knowing this may alleviate the criticism I have suffered for this." In fact, Blackmun The most concerned criticism comes from Douglas's recently published memoir "Go East, Young Man", the author quotes Porter Stewart's evaluation of the "Karas case": "I never dared to imagine that in In my lifetime, the Supreme Court will decide that it is possible for a person to be too poor to benefit from the bankruptcy system." Goal Black passed Coleman's letter on to Stewart and Douglas for circulation. "We seldom follow a case to the end," he wrote on the envelope, "because I'm so stumped by your opinion in this case (Porter's dissent, quoted on page 175 of Bill's new book) I think You may be interested to know that, six weeks after our sentencing, this Mr. Callas paid the legal costs of $50 in cash, in one lump sum.” Blackmun finally said, “That’s what happened.” Soon after, a similar situation arose on another issue: abortion. After the "Roe v. Wade case" was pronounced, abortion cases continued to pour into the Supreme Court. In 1976, the Supreme Court struck down a Missouri law in Planned Parenthood of Missouri v. Danforth.The law requires married women to obtain written consent from their husbands before undergoing abortions that are not related to saving their lives. During the Roe and Doe trials, Berger repeatedly emphasized the husband's role in the abortion, so in this case he added the dissenting opinions of White and Rehnquist, Blackmun The majority opinion wrote that while a "conscientious and loving husband" is essential during a woman's pregnancy, "the woman who is pregnant is the one who is directly affected by the pregnancy When we weigh time, we should naturally emphasize the former.” After the "Danvers case", three more abortion cases went to the Supreme Court in this session, and the types are also quite different.The question this time is not how far states can regulate abortion, but whether states should pay for abortions when women cannot afford them. The entry points of the three cases are different. Beal v. Doe concerns the interpretation of federal health care law as to whether states are obliged to pay for an abortion for a poor woman when it is not necessary for medical treatment. Poelker v. Doe involved St. Louis Municipal Hospital, which denied abortions to poor women. "Maher v. Roe" (Maher v. Roe) is considered by Blackmun to be the most important of the three cases. It involves constitutional issues. whether abortion must be provided to poor women as a medical benefit.In all three cases, the lower courts ruled in favor of poor women.In preparation for the trial, which took place in early January 1977, Blackmun wrote that it became clear that the states had their own considerations for how to spend social welfare.However, it is illegal in Connecticut to refuse to pay for an abortion.In fact, "the state has always been oblique to do things that 'Roe' directly prohibited." The state's long-standing belief that poor women can easily get money for abortion is "disingenuous and hypocritical." In all three cases, Blackmun was on the minority side.His ally in Roe v. Wade, William Douglas, had suffered a stroke and retired in November 1975, replaced by Federal Appeals Judge John Paul Stevens of Chicago.Stevens is unclear on where he stands on abortion, but he has supported overturning lower court decisions in all three cases.Discussing the Connecticut case, Stevens said, "The important thing is not to overrule 'Roe'." If there is a class of women, such as poor women, who cannot access abortion services, "the impact of 'Roe' will be Cannibalized" However, "states have the right" to discourage abortion, "and the 'Roe' decision recognized this". Potter Stewart, who was also a strong ally of Blackmun in the "Roy Case", got cold feet this time.Stewart believes that the "Roe case" does define abortion as a constitutional right of citizens, but the judgment does not make funding for abortion an obligation for states.In addition, another ally in the "Constitution allows states to maintain policies that encourage procreation and discourage abortion," Lewis Powell believes that the constitutional issues involved in this case are indeed "difficult" but have similarities with previous cases. obviously different. "'Roe' is about disenfranchisement and criminal punishment," he said. "This case is not about prohibition of rights. We have taken the constitutional interpretation of power to the extreme in 'Roe'. States have the right to advocate for saving lives ’” Powell went on to say that if the Supreme Court insisted on recognizing abortion as a constitutional right, it would be “difficult to see the end of the road.” “Have we ever funded the right to move? Or the right to free speech?” he asked.Berger's change of heart was only to be expected.He argued that states certainly cannot ban abortion, but that doesn't mean states have to pay for abortion.At first, Berger intended to uphold the lower court's decision in the St. Louis Hospital case.Blackmun was deeply skeptical of his position, writing in his notes during a discussion of Boylek v. Doe: "I guess he'll change his mind." Two weeks later, Berger announced Change of mind: "After reviewing the papers in depth, I decided to vote to overturn the original judgment." Brennan, Marshall and Blackmun took the same position, dissenting in all three cases.A footnote added to Blackmun's dissent in Beyoncé v. Doe applies to all three cases.Of all his abortion opinions, these passages contain the most concentrated description of Blackmun's description of the helpless situation of women who seek abortions. "As the Supreme Court mentioned in the judgments of the three cases, those women were poor and helpless," he said, "but the Supreme Court's judgment contains such a condescending blunt logic, that is, these women Abortions can go elsewhere. This conclusion is insincere and more worrying. It's like saying 'no bread, let them eat cake.'" He continued, "The Supreme Court seems to have ignored or It is the reluctance to face the other world that really exists, so that the cancer of poverty continues to spread and grow. For those who regard the Constitution as a just weapon to serve all people, the performance of the Supreme Court makes them sad. Only by adhering to the fairness and justice of the Constitution can we truly improve the living conditions of the poor.” Throughout the 1970s, the death penalty was an important issue that the Supreme Court grappled with.The bitter confrontation that Blackmun had foreseen while on the Eighth Circuit Court of Appeals came quietly in the fall of 1971.During this period, a large number of cases challenging the death penalty laws of Georgia, Texas, and California reached the Supreme Court.The Supreme Court had to consider whether to take up those cases, and Aikens v. California became the first choice. "The imposition of any penalty, including the death penalty, is a matter for the legislature, not the judiciary," Blackmun wrote in a pretrial memo in September 1971. "Of course, if the Supreme Court wants to point out that this is legislative policy Issues, rather than issues related to the Eighth Amendment, are very easy. Some people may say that the Supreme Court is cowardly. But I think it is reasonable to do so anyway. I doubt Whether we are ready to abolish the death penalty for treason and espionage, and if we are to abolish the death penalty altogether, the future is in a major logical dilemma." On January 17, 1972, the "Aiken case" was held at the same time as the cases from Georgia and Texas.During this period, Blackmun still held an opposing attitude towards the death penalty from a personal point of view, but as a judge, he had to hold the opposite position."If I were a legislator, I would vote against the death penalty," he wrote in a pretrial memo. "However, that does not mean that states, judging by common sense, decide to execute serious crimes such as treason or intentional homicide. The Eighth Amendment to the Constitution. I personally do not approve of such a policy, but I cannot repeal it, at least on a constitutional level.” Before the "Aiken case" was pronounced, the California Supreme Court abolished the state's death penalty law, and the new judgment was retroactive to the death row inmates. The "Aiken case" immediately lost its significance.In this way, Fumwm v. Georgia from Georgia became the case to test the Supreme Court's position on death penalty. On June 29, 1972, the Supreme Court struck down death penalty laws across the country in favor of death row inmate William Henry Furman.Douglas, Brennan, Stewart, White, and Marshall all argue that the death penalty, at least the current mode of execution, violates the Eighth Amendment to the Constitution, which "prohibits cruel and unusual punishment."This result also relieved Blackmun, who thought he would be the key vote again. In his dissent, he still ignores the advice Berger gave him in the previous session: Don't get too personal.Blackmun's opinion cut to the chase: "Such cases always bring me torture-like mental suffering. I hate the death penalty because it means unbearable physical pain. I am even afraid to use my limited rationality to make moral judgments." He said , if he were a legislator or a governor, he would vehemently oppose the death penalty, but, "While I am personally pleased with the verdict, I still believe that what the Supreme Court is doing now, based on history, law, and even the Constitution, is a constitutional The Eighth Amendment is a cover-up of judicial overreach. The Judiciary should not be involved in this issue." During the circulation of the comments, Blackmun received a note of support from Lewis Powell.Powell had only joined the court six months earlier, in January 1972.The note showcased Powell's tactful skills, which he has mastered throughout his long career.The new justice explained that he would still issue his dissent. "I have not included your opinion in these death penalty cases only because of your overtly personal style. You know, I have always admired your persuasive writing style." Furman v. Georgia opened a new chapter in the death penalty issue that has long plagued the Supreme Court. The death penalty laws of 37 states were invalidated by the "Furman case", but 35 of them passed new laws within two years in accordance with the requirements of the Supreme Court.The new law limits jury discretion and prevents death sentences from appearing too subjective due to a lack of clear criteria.By 1975, when the Supreme Court agreed to hear cases challenging new capital punishment laws in Georgia, Florida, Texas, North Carolina and Louisiana, hundreds of people across the country had been put on death row under the revised law. The Supreme Court made Gregg v. Georgia its lead case.Georgia's new death penalty law adopts a model common to all states, stipulating 10 "aggravating circumstances" (aggravating circumstances).A jury must prove, beyond a reasonable doubt, that at least one "aggravating circumstance" has occurred before a defendant can be sentenced to death. "Aggravating circumstances" include murder, murder of a police officer or judge, multiple murders, or particularly brutal murders.The jury can also sentence between the above circumstances and any mitigating circumstances. If no mitigating details are found, the jury can also give the defendant a lighter sentence at its discretion.First-instance judgments on the death penalty will automatically be appealed to the Georgia Supreme Court.A higher court must confirm that the sentence in question was not an improper sentence compared with ordinary murder. In Craig v. Georgia, seven justices of the Supreme Court upheld Georgia's death penalty law, with Brennan and Marshall dissenting, but, when sentencing on July 2, 1976, the court did not form a single majority opinion.Stewart, Powell, and Stevens agreed, and White, Berger, and Rehnquist added another opinion.Blackmun drafted a separate opinion, like his dissenting opinion in the Furman case, saying that if he had been a lawmaker or a member of the U.S. Congress, he might have been open to a challenger's challenge to the death penalty , however, he still believes that judges do not have the authority to overrule the majority state's choice.Ultimately, however, he decided not to issue the opinion.Now that the above opinion has been expressed in "Furman v. Georgia", there is no need to dwell on it again.He ultimately issued a one-sentence statement: "I agree with the sentence." The death penalty case did not make Blackmun happy, but in the mid-1970s, there was finally a case that could satisfy him.In his "Chronicles of Important Events," Blackmun specifically mentions one case. Huddleston v. United States, 1974, involved a dispute over the interpretation of federal gun laws.The outcome of the case was unimportant, but to Blackmun's great surprise, the vote in the case changed from 5 to 4 to 8 to 1, with Douglas the only one who dissented.The dispute in this case is that since the law stipulates that it is a crime to forge a statement "when obtaining a gun from a legal gun seller", can this law apply to the act of redeeming a pawned gun from a pawnshop?William Huddleston pawned three rifles belonging to his wife, but when he tried to redeem them, the store owner, who had a federal gun license, asked him to fill out a "gun purchase record" that included whether he had been sentenced to Imprisonment for more than one year.Huddleston, of course, did not admit it, but in fact, six years ago, he was sentenced for issuing bad checks. In California, such crimes can be punished with up to 14 years in prison.Huddleston was charged for making a false statement. He appealed that the legislation of Congress only made it illegal for a person to make a false statement when he "purchased" a gun, but he was "redeeming" a gun. Even if there was a false statement, it was not a crime. Behavior. In the pre-trial memo, Blackmun noted that the law was not a "model interpretation" of Congress' legislative intent, apparently to cover all forms of firearm circulation, and that Congress had the power to impose such restrictions.Therefore, the defendant's appeal is completely superfluous. However, four justices disagree with the above view.After the trial, Douglas, Stewart, Rehnquist and Powell all voted to have Huddleston's conviction dropped. Berger still assigned Blackmun to write the majority opinion, and the draft opinion was circulated on March 7, 1974.Stewart quickly abandoned the idea of ​​writing a dissenting opinion. "I think your opinion is thoughtful and convincing." Stewart said to Blackmun in the letter.Powell also expressed a similar message: "Although I voted against you, I have been persuaded by your thoughtful and perfect opinion to join your side." Rehnquist also chose to join. The 8-1 opinion was released on March 26. 布莱克门对宪法最为重要，最为持久的一项影响，也在这一时期产生。这次的议题与广告相关，由于长期被最高法院视为“商业言论”广告很难得到宪法第一修正案的保护。1972年，美国公民自由联盟代表弗吉尼亚州一位报社编辑，向最高法院提起上诉。这位名叫杰弗里·比奇洛的编辑在《弗吉尼亚周报》上刊登了一则堕胎广告：“不想怀孕？——让我们帮助你！”承诺“以低廉价格，快捷提供可靠诊所”弗州政府随即起诉了比奇洛，理由是，弗州刑事法律禁止以演说、广告或“任何其他方式”“鼓励或怂恿他人堕胎”比奇洛被定罪，并处以500元罚金。弗州最高法院维持原判，驳回了比奇洛主张的宪法第一修正案权利，因为“州有权立法禁止商业广告言论” 比奇洛上诉至最高法院时，“罗伊诉韦德案”仍悬而未决，法院暂时将此案押后。“罗伊案”宣判后，弗州堕胎合法化，大法官们将此案发回弗州最高法院重审。但是，由于“罗伊案”和“多伊案”均未提到广告言论，弗州最高法院仍然维持有罪判决，比奇洛只好再次上诉到最高法院。 布莱克门非常同情比奇洛的遭遇。这个案子很“简单”他在审前备忘录中写道，“究其实质，商业言论并不比其他言论低下。”然而，根据最高法院既往先例，在受宪法第一修正案保障的各类言论中，商业言论明显处于较低层级。布莱克门草拟的意见初稿，打算推翻上述先例。宪法第一修正案“应当阻止州禁止一项产品或一种行为的广告，如果这些产品或行为本身合法”他写道。不实广告或误导性广告当然应严格管制，“这倒不是因为其商业性或营利目的，而是为防止商业损害，毕竟，无规范则无交易。”他写道，他将投票“推翻原判，而且从最广泛含义上处理此案” 1974年12月18日，大法官们开会讨论这起案件。惟有伦奎斯特和怀特二人支持维持定罪判决。弗州最高法院的判决将被推翻，伯格指定布莱克门撰写多数意见。但是，到了12月30日，伯格给布莱克门送去一份标明是“私人信函”的信件。“我投入更多精力，重新考虑了此案，打算改变之前的立场，”伯格写道，“如果，我想我们都会认同这一点，一州有权禁止刊登医疗服务广告，尤其是医生之外的人所为，那么，为什么就不能容许他们限制刊登一种更为特别的医疗服务广告呢？更何况这种医疗服务与传统的扁桃体切除手术、阑尾切除手术或毛发移植手术相比，与公共利益的联系更为密切呢？”伯格说，他现在考虑维持原判，“狭义上一州应当有权力限制医疗服务的广告，至少针对弗州的执业医生是这样的。让我们好好讨论一下吧。” 没有任何记录证明二人讨论过这项议题。1975年5月7日，布莱克门传阅了他草拟的意见初稿。次日，马歇尔、鲍威尔、斯图尔特和布伦南加人了这一意见。布伦南告诉他：“我认为，您非常出色地处理了这起案件中的棘手问题，我很荣幸能加人这份意见。”伯格与道格拉斯则在一个月之后才选择加人。 毫无疑问，布莱克门对“比奇洛诉弗州案”(Bigelow v.Virgi—一开始就很上心，毕竟此案与堕胎有莫大关联。1975年6月15日，“比奇洛案”正式宣判，商业广告开始受宪法第一修正案保护。新开庭期伊始，另一起来自弗州的类似案件也来到最高法院。此案挑战的是弗州一部法律，这部法律禁止药剂师就处方药价格做任何广告。如果药剂师胆敢做这类广告，将被弗州制药委员会吊销执照。一个消费者组织向该法发起挑战，因为一旦药剂师无法传递有用的价格信息，药价必然居高不下，受损害的只会是消费者。位于里士满的联邦地方法院宣布州法违宪，州继续提起上诉。 1975年11月10日，布莱克门在审前备忘录中谈到了这起名为“弗州制药委员会诉弗州公民消费者委员会案”(Virginia State Board of Pharmacy v.Virginia Citizens Consumer Council)的案件。他认为，这起案件不过是“比奇洛案”的进一步延伸。“'比奇洛案'强调的是公众接受信息的权利，”他写道，“在这起案件中，普通民众的利益在于了解药品价格，消费者的利益在于藉此选择在何处购买药品，医生的利益在于开药之前，知道药品的真实成本。”最后，他提出：“处理此案一点儿也不困难，'比奇洛案'提出的原则完全可以原样照搬，州法必须被推翻。” 此案的多数意见仍由布莱克门撰写。其他大法官中，鲍威尔关心的是，如此一来，是否意味着所有专业服务领域的广告都将放开。“下一步，所有传统专业领域都将向商业广告开放：医疗或法律。”1976年3月，鲍威尔在给布莱克门的反馈意见中写道。他认为，尽管配药也是一门专业，“而且并非不重要”但是，药剂师职业与医生或律师还是有“显著不同”“今天，药剂师的传统业务，不过是把药片从大药瓶放入小药瓶。”鲍威尔写道。他强调，医生和律师“并不从事标准化生产，而是提供多元化的专业服务”布莱克门欣然接受了鲍威尔的提议，并将之转化为判决意见中的脚注25。1976年3月24日宣判时，伦奎斯特是惟一的异议者。那年三月，伦奎斯特递给布莱克门一张手写字条，宣布自己将发布异议意见，他说：“必须向您致敬的是，我实在想不出比您更好的理由，来支持您持有的立场。”伦奎斯特还在信末附注：“您无须引述我的观点。” 鲍威尔的顾虑很快在现实中应验。仅仅几个月后，一起关于律师广告的案件就诉至最高法院。亚利桑那州凤凰城的两位年轻律师，约翰·贝茨和范·奥斯廷，是当地法律援助协会的同事，两人合伙开了一家法律事务所，打算以合理价位，为本地中产阶层提供法律服务。这些中产阶层往往支付不起高额律师费用，却又够不上享受法律援助的资格。两位律师公然挑战亚利桑那州律师协会关于律师不得发布广告的禁令，在《亚利桑那共和报》上刊登了一则商业广告，承诺将提供“非常合理的价位”并直接列出收费标准：协议离婚175元、姓名变更95元、办理收养225元。当地律协见到广告后，立即对二人施以惩戒，要求他们各自停业一周。亚利桑那州最高法院根据布莱克门在“弗州制药委员会案”意见中的脚注25，宣布律师广告不受宪法第一修正案的保护。 布莱克门并不认为药品价格广告与提供法律服务的价格广告有什么实质性区别。“可以任其发展。”1977年，他在审前备忘录中写道。他在“贝茨诉亚利桑那州律师协会案”(Bates v.State Bar of Arizona)的意见中，已经列举这样的限制性条款：如果第一修正案只保护“忠实描述服务内容的传统法律服务广告”那些对法律服务品质的强调也容易对他人形成误导。但是，布莱克门当时的判决并未涉及招揽客户，相关细节留给州律师协会去规范。伯格、斯图尔特、伦奎斯特和鲍威尔都持相反观点。伯格甚至预言，本案判决“将导致更多问题，比它预先打算解决的难题还要多得。” 伯格仍未放弃他对律师广告的反对态度。一年后，最高法院1978年开庭期即将开始之际，他将一封信的复印件交全体大法官传阅。这封信的作者，是海军上将海曼·里科弗。他告诉伯格，海军法律顾问办公室的一位离职律师最近在《华尔街日报》上刊登了一则广告，承诺提供“承包工程以及任何对抗美国政府的法律服务”。 “一个政府律师离职之后，就迅速怂恿他人兴讼，对抗自己的老东家，简直是种骇人听闻的行为。”里科弗对伯格说。伯格未加任何评论，只是把这封信转交其他大法官传阅，并提醒大家注意“这件有趣的事情”。 仅在一年前，布莱克门和伯格还没想到他俩会对同一件事情，抱有如此不同的想法。路易斯·鲍威尔会在失利后认赌服输，但伯格却是个固执的人，他会继续钻牛角尖，用各种方式宣扬律师广告的危害性。布莱克门也一如既往，继续坚守立场，桿卫本人观点。这种悄然发生的变化，现在已日益明显，两位老友的关系，已开始渐行渐远。