Levine and Wermiel-hyperlinked version.docx (Do Not Delete)
92
WASHINGTON LAW REVIEW
3/13/2013 7:48 PM
[Vol. 88:1
explained his decision to omit such language—“I hope [Burger] joins 100% after he sees this but he is not easy to persuade.”540 On May 9, 1985, Powell delivered advance copies of his new “plurality” opinion to O’Connor and Rehnquist, explaining that he had “not changed the substance of what you have approved.”541 He added that he had written “the Chief a personal letter and talked to him sometime ago in an effort to persuade him that he could join our opinion without qualification, and still agree with Byron that New York Times and Gertz should be overruled. I do not know what he will do.”542 Later that same day, O’Connor pronounced the Powell plurality opinion to be “splendid” and predicted that “it will be helpful in a number of First Amendment cases in the future.”543 The new opinion was circulated to the Conference on May 10. When he received Powell’s draft of what was now the Court’s plurality opinion, White circulated it to his clerk, along with a handwritten note inquiring “what do I do to my concurrence?”544 On May 14, the clerk responded with a memorandum to his Justice that recommended “only minor modifications in response to Justice Powell’s latest draft.”545 Moreover, the clerk noted that, on what he termed White’s “alternative rationale”—i.e., “that Gertz applies only to matters of public concern”—there now appeared to be “little or no distance between your opinion and Justice Powell’s.”546 Thus, the clerk asked whether White now wished to concur in Powell’s opinion, rather than simply in the judgment. After all, the clerk reminded White, Powell had “deleted the discussion which you might have the most objection to,” namely the suggestion that “a Wall Street Journal article” on the same subject “might be treated differently” than a credit report, because it was
540. Id. 541. Letter from Justice Powell to Justices Rehnquist and O’Connor (May 9, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 542. Id. 543. Letter from Justice O’Connor to Justices Powell and Rehnquist (May 9, 1985) (on file with the Powell Papers, Washington and Lee Law Library), available at http://law.wlu.edu/powellarchives/page.asp?pageid=1355. 544. Justice Powell, Draft Opinion One 1 (Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.) (May 10, 1985) (with handwritten note from Justice White) (on file with the White Papers, Library of Congress Manuscript Division) (on file with the Washington Law Review). 545. Memorandum from Dean Gloster for Justice White 1 (May 14, 1985) (on file with the White Papers, Library of Congress Manuscript Division) (on file with the Washington Law Review). 546. Id.