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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circulated to a larger audience.547 White, however, never made any further overtures to Powell about joining his opinion and perhaps thereby having it speak for a majority of the Court. Although White himself has left no record of why he decided not to do so, at the time, his clerk recognized that White might have additional reasons for wanting to concur only in the judgment, beyond the obvious proposition that “a separate opinion, without a join, has more impact.”548 More importantly, the clerk wrote, “if your principal beef is with Gertz itself, you may not wish to join an opinion that applies what purports to be a Gertz categorical balancing of interests, but with a different weight on the free speech interest where a matter not of public concern is involved.”549 Moreover, the clerk noted, Powell’s latest draft, though “persuasive and well-reasoned on its face,” is “a little hard to take in light of the history of Gertz, which rejected Rosenbloom’s public interest/not public interest distinction.”550 In the clerk’s view, “[a] more forthright opinion would explain that it cut back on Gertz rather than applied it.”551 Finally, the clerk recognized that “the two central points made in [White’s] opinion—that the balance in New York Times may have been improvidently struck and that there is no media/nonmedia distinction among the levels of protection accorded libel defendants— are not addressed by Justice Powell.”552 C.
Brennan’s Final Retreat
On May 20, Brennan circulated his revised draft, now a dissent, to his putative allies, Marshall, Blackmun, and Stevens. He hoped to gain their approval before circulating it to others, especially to White. As Brennan reflected on it in his Term History, this tactic “proved sage”553 because, although Marshall and Blackmun expressed their approval, Stevens sent Brennan another private letter, this time focusing on his “concern[s]” about the newly added footnote.554 It ended with the somewhat ominous assertion that, “[e]ven though I am not sure I disagree with anything you have said, I am presently inclined to join all of your dissent except 547. 548. 549. 550. 551. 552. 553. 554.
Id. at 1–2. Id. at 2. Id. Id. Id. at 3. Id. Justice Brennan, 1984 Term Histories, supra note 222, at 103. Id.