Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
2013]
THE LANDMARK THAT WASN’T
3/13/2013 7:48 PM
63
O’Connor proposed that: [W]ith some fairly minor changes to parts I–III of your circulating draft, it would effectively hold that Gertz applies only to speech involving public issues and, therefore, does not require a showing of the New York Times type of actual malice in this case. I strongly suspect you could get the additional four votes for that approach, even if not all the same votes were available for the punitive damages aspect. I would certainly be able to join at least parts I–III, and I believe the others would as well.372 Powell apparently read the letter immediately upon its receipt, noting in the margin of his clerk’s cover memorandum that O’Connor’s “suggestion has merit” and that he would “pursue it with sympathetic interest.”373 Three days later, on January 25, 1985, White sent Brennan a note shortly before noon. It read, in its entirety: Dear Bill, It will not surprise you, I am sure, to learn that I am voting to affirm in this case. I shall circulate shortly indicating my position. Neither am I joining Lewis [Powell] at this point. Having said this, I am fleeing the city for a week or two.374 And there things stood at high noon on January 25, 1985. By then, the Greenmoss Builders case had been on the Court’s calendar for nearly two years, had spawned two sets of briefs and arguments on the merits, and had consumed literally hundreds of pages of opinions that had yet to be issued. Still, at that moment, the case was no closer to decision than it was when Byron White first drafted a dissent from what he believed was the Court’s wrong-headed inclination to deny review in the first place. At this juncture, it appeared that it was effectively up to White to determine the outcome.
public”); id. at 477 (Brennan, J., dissenting) (arguing that a public trial amounted to a public controversy); id. at 488 (Marshall, J., dissenting) (“Gertz obviously did not intend to sanction any such inquiry [into whether an event is a public controversy] by its use of the term ‘public controversy.’ Yet that is precisely how I understand the Court’s opinion to interpret Gertz.”). 372. Letter from Justice O’Connor to Justice Powell, supra note 357, at 2. 373. Memorandum from Daniel Ortiz for Justice Powell, supra note 358. 374. Letter from Justice White to Justice Brennan (Jan. 25, 1985) (on file with the Brennan Papers, Library of Congress Manuscript Division) (on file with the Washington Law Review).