Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
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WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
Powell’s reasoning (and offended by Brennan’s defense of Gertz) to withhold his vote from Brennan. And Powell, who had withstood White’s withering attack in Gertz and had dismantled the plurality Brennan had cobbled together in Rosenbloom, had apparently managed to curry at least some favor with White by disclaiming at least some aspects of his own reasoning in Gertz. White’s memorandum provoked Brennan to telephone his colleague again, this time to inquire whether White’s cryptic reference to Brennan’s opinion being “more consistent with existing precedent” might lead him to join the Brennan opinion if additional changes were made.207 It was then that White told Brennan that, if anything, Powell was more likely to secure his vote if changes were made in Powell’s opinion.208 Still, White continued to advocate reargument, perhaps in the hope that he could thereby garner sufficient support to overrule at least significant portions of Gertz. It might have been expected that Burger, who had by this time twice voted to dismiss the case, would be opposed to reargument. Nonetheless, perhaps because White had provided him with a fifth vote for reargument in Garcia v. San Antonio Metropolitan Transit Authority209 at about the same time, the other Justices were not surprised when Burger wrote to White (and the Conference) on June 25 that “I had voted to DIG but I will give you a ‘consolation vote’ to join your vote to reargue.”210 Brennan had written to Burger earlier that day and, after noting that the Chief had “voted to deny cert in this case and . . . twice voted to DIG,” assumed that “Byron’s suggestion that the case be argued again will not have much appeal for you.”211 Accordingly, Brennan asked, “Is there anything I can do in the way of changing my opinion a few printed pages, [the Court in Gertz] has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States.”). 207. Justice Brennan, 1983 Term Histories, supra note 20, at LXXXIX. 208. Id. at LXXXVIII. 209. 469 U.S. 528 (1985). In Garcia, the Court, by 5-4 vote, ultimately overruled National League of Cities v. Usury, 426 U.S. 833 (1976), and held that it was impossible to define what actions of state and local government constitute traditional functions that would make them immune from federal regulation. The majority opinion was written by Blackmun and joined by Brennan, White, Marshall, and Stevens, with Burger, Rehnquist, Powell, and O’Connor dissenting. 210. Memorandum from Chief Justice Burger for Justice White and the Conference (June 25, 1984) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 211. Letter from Justice Brennan to Chief Justice Burger (June 25, 1984) (with handwritten notes from Chief Justice Burger) (on file with the White Papers, Library of Congress Manuscript Division) (on file with Washington Law Review).