Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
2013]
THE LANDMARK THAT WASN’T
3/13/2013 7:48 PM
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reversed.525 Accordingly, Powell encouraged Burger to recraft his statement to read: “I join Justice Powell’s opinion disposing of this case; I agree generally, however, with Justice White’s opinion with respect to Gertz and New York Times.”526 This, Powell wrote, “would give us a solid plurality for the reasons why the entire law of libel should not be constitutionalized, and—with Byron’s opinion—there would be clear guidance to all lower courts.”527 Finally, Powell wrote, “I have talked to Bill Rehnquist about this, and he also hopes that you can make this sort of clarification of your views. You would still fully preserve your views as to Gertz and New York Times.”528 As Powell recognized, with Burger’s vote, there were now five Justices committed to affirming the Vermont Supreme Court. On April 22, therefore, Powell again wrote to Burger to remind him that he needed to “confirm your assignment of this case to me” so that he could “convert my dissent into a plurality opinion for the four of us.”529 Accordingly, on April 22, Burger formally reassigned the majority opinion to Powell, “with all the ‘pluses’ and ‘minuses’ that go with it!”530 Thus, what had started as an interesting but not especially difficult defamation case was now the focus of major drama within the Supreme Court. And at least inside the Court support was clearly eroding for Sullivan, the landmark that had universally been considered the solid and immutable foundation of modern First Amendment jurisprudence. Although Brennan tried to convince himself otherwise, it must have shaken his faith in his own legacy as the Justice who had both discovered and articulated the “central meaning” of the First Amendment. As the drama entered its final Act, at least from Brennan’s perspective, there was no “occasion for dancing in the streets.”531 525. Id. 526. Id. at 2. 527. Id. 528. Id. 529. Letter from Justice Powell to Chief Justice Burger (Apr. 22, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 530. Letter from Chief Justice Burger to Justice Powell and the Conference (Apr. 22, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 531. See Kalven, supra note 3, at 221 n.125 (quoting Meiklejohn as having said of the New York Times Co. v. Sullivan case “It is . . . an occasion for dancing in the streets”); see also supra note 380.