Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
88
WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
holdings (i) that New York Times and Gertz are no longer good law and (ii) that, even if they are, they do not apply here for the reason you state in your opinion.”518 Moreover, the clerk wrote, if Powell were to point out to Burger “the implicit contradiction of joining both”519 his and White’s opinion, “you stand the risk of losing him to JUSTICE WHITE completely.”520 In any event, Burger did clarify his position the following day, and thereby revealed himself unambiguously as the Justice cryptically referenced in Stevens’ parenthetical,521 advising his colleagues that he would “add something along the following line”: I join those parts of Justice Powell’s opinion essential to the disposition of the case; I agree generally with Justice White’s opinion with respect to Gertz v. Robert Welch, Inc. and New York Times Co. v. Sullivan.522 Burger’s clarification, however, “concerned” Powell, who wrote confidentially to the Chief Justice the next day and told him that “[u]nless this language is refined, I cannot include you in what we have hoped would be a plurality opinion.”523 More specifically, he informed Burger that “since it is not clear which parts of my opinion you believe are ‘essential to the disposition of the case’ and which parts are not, other courts looking for guidance will have doubts as to where a majority of the Court stands.”524 Remarkably, Powell attempted to convince Burger that his opinion simply did not speak to the issue of whether Sullivan and Gertz are and should remain good law: It was necessary for me to cite Gertz and New York Times to distinguish them. As Byron [White]’s opinion implicitly recognizes, Gertz and New York Times at present are “the law.” I simply did not consider—and the disposition of this case does not require us to consider—whether these two cases should be 518. Id. 519. Id. 520. Id. at 1–2. 521. See Letter from Justice Stevens to Justice Brennan, supra note 491, at 2 (“Unless someone joins Byron, it would seem to me that you could safely assume that eight members of the Court (perhaps I should say seven) accept the basic holding in New York Times and are merely concerned with the scope of that holding.”). 522. Memorandum from Chief Justice Burger for the Conference (Apr. 11, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355 (internal citations omitted). 523. Letter from Justice Powell to Chief Justice Burger 1 (Apr. 12, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 524. Id.