Fisher, Hon. Raymond C.

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Justice Brennan\u27s Supporting Role

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St. John's Law Review Volume 72 Number 3 Volume 72, Summer-Fall 1998, Numbers 3-4 Article 9 March 2012 Justice Brennan's Supporting Role Hon. Raymond C. Fisher Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Recommended Citation Fisher, Hon. Raymond C. (1998) "Justice Brennan's Supporting Role," St. John's Law Review: Vol. 72 : No. 3 , Article 9. Available at: https://scholarship.law.stjohns.edu/lawreview/vol72/iss3/9 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact selbyc@stjohns.edu. JUSTICE BRENNAN'S SUPPORTING ROLEHONORABLE RAYMOND C. FISHER*First of all, this conference is quite timely, even though it is30 years after Terry.' In my more recent incarnation, before Ibecame a member of the Justice Department, I was serving asPresident of the Los Angeles Police Commission, which has ju-risdiction over the Los Angeles Police Department. I was beingbriefed as a Commissioner by the head of the anti-terrorist divi-sion, which, as its name implies, engages in domestic surveil-lance of alleged terrorist groups. It has been a very controversialdivision in Los Angeles. It had been accused of spying againstpolitical figures and the like, and its ability to engage in under-cover operations and the like had been litigated and constrainedby a consent decree. The consent decree had expired and we, asCommissioners, were being asked to liberalize the conditionsunder which the LAPD could send in undercover officers or en-gage in wire taps or the like. Not having done any criminal lawsince I left the Court, I was wondering, what are the restraintsin criminal procedure these days on engaging in this kind of ac-tivity? I was told by the City Attorney, "Oh, don't worry. Youcan do this under reasonable suspicion. That's Terry v. Ohio."2That was a bit of a flashback. As Earl said, I didn't remember"reasonable suspicion" as the standard that came out of thatcase, but I had not looked at it recently.3 My actual reaction,though, was surprise: "Is Terry v. Ohio still the law?!"Interestingly enough, there's another side of the equationthat's still being litigated quite aggressively in Los Angeles andrelates to the issues we're talking about today. There is a con-* Associate Attorney General of the United States. A.B., University of Californiaat Santa Barbara, 1961; LL.B., Stanford University, 1966; Law Clerk to AssociateJustice William J. Brennan, Jr., 1967-68.1 Terry v. Ohio, 392 U.S. 1 (1968).2 In fact, the precise holding of Terry was somewhat more narrow than the CityAttorney urged. See id. at 30.3See Earl C. Dudley, Jr., Terry v. Ohio, The Warren Court, and the FourthAmendment: A Law Clerk's Perspective, 72 ST. JOHN'S L. REV. 891 (1998).ST. JOHN'S LAW REVIEWtroversial special investigative unit in Los Angeles, which con-sists of a highly trained group of officers who are charged withthe surveillance and arrest of allegedly heavily armed bank rob-bers and criminals. There's a civil rights lawsuit pending in fed-eral court where there is a serious issue of whether the squad isviolating the civil rights of the bad guys by waiting for the crimeto happen before the squad intervenes. Often, the crime hap-pens and as the bad guys leave the scene, usually a bank or abusiness establishment, the squad then engages in fairly ag-gressive arrest techniques. The argument that is being made bythe plaintiffs is that the police officers should be able to inter-vene much earlier in the process. That is, they ought to be ableto, either under a doctrine of probable cause or even reasonablesuspicion, intervene and stop these events before they happen.The police officers are arguing that if they do so, they will not getconvictions, and the cases will be tossed for lack of probablecause. So, it is a very live and heavily debated issue. I find itsomewhat ironic that 30 years after I had a modest role in theTerry v. Ohio discussion of probable cause and reasonable suspi-cion, when I was only one-and-a-half years out of law school withabsolutely no knowledge of what really went on in the streets, Iwas confronting these same issues 30 years later with a lot ofreal-world experience to inform my judgments. And that leadsme to talk a little bit about process.What you've heard today, and certainly what I've heard to-day, from the lawyers who actually tried the facts of the case andsaw the participants, is a much fuller discussion of what hap-pened in Terry v. Ohio, in the actual event and in the litigationof the case. By the time a case gets to the Supreme Court andfalls into the hands of the Justices and the law clerks, it getsvery abstracted; not away from the facts entirely, because asyou'll see from the opinion, there's a very careful recitation of thefacts.4 But at least in the cases I had the opportunity to work on,you wind up dealing with a record that is a cold record. You'rereading the transcript and you do not get the nuances. Younever see the people, the real people involved, and you only get asense of what the facts were generally about. And as a law clerk,it often bothered me that we were trying to deal with makinglaw based on what was a very abstract record.4 See Terry, 392 U.S. at 4-7.[72:905906BRENNAN'S SUPPORTING ROLENow that is the nature of the appellate process, under-standably, but when one practices and goes out and tries cases,one realizes how much the facts matter and as Judge Juviler wassaying, how much juries can be influenced by what the nuancesare and by what goes on in the real world. So there is that dis-connect.5 As Earl was saying, the Justices in Terry v. Ohio wereattempting to deal with major, major principles of law, namely,the evolution of search and seizure and the exclusionary rule,based on a record that was presented to them through argument,through the transcripts, and the like, but which was fairly ab-stracted.6 And the Justices were, as they did throughout theTerm in a number of different kinds of cases, trying to articulateprinciples based on what they believed the real world was allabout. That is a very human process and can frequently beflawed. Not necessarily in a bad way, but certainly as to certainaspects of decisions which those of us who later have to go outand practice under, these standards may cause us to wonder,what the heck were they thinking about? Where are they gettingtheir information?The law clerks in the Supreme Court play an important role.The law clerks in chambers follow different procedures accordingto their Justices. Justices have their own way of doing things,but the law clerks, nonetheless, are the ones who contribute atremendous amount of research and do a lot of drafting of pre-liminary opinions. The Justices then, of course, do what theyindividually care to do in terms of turning out their own product.In regard to Terry, the notes of the conference that John justread are not notes I was aware of. I do not know if Earl wasaware of all those debates. I certainly was not. Both of us had arole in putting some words down on paper to carry out the gen-eral directions of what we were told by our respective Justices,but basically we were writing as research assistants, and again,working with the materials that were given to us, which werenot as complete or as nuanced as we're hearing this morning. Isay that because one parses opinions and looks for meaning inthe words and in the phrases, and in the debate between con-curring, dissenting, and majority opinions, to find some windowinto the dynamics of what goes on within the Court." See Honorable Michael R. Juviler, A Prosecutor's Perspective, 72 ST. JOHN'S L.REV. 741 (1998).6 See Dudley, supra note 3.1998]ST. JOHN'S LAW REVIEWWhen I was there, Justice Brennan was in his heyday. Jus-tice Brennan and Chief Justice Warren were the closest offriends and the closest of colleagues. Justice Brennan played avery powerful role on the Court. He was someone who was ex-tremely collegial, both in his personal dealings and in his pro-fessional dealings. He made it a point simply to embrace allmembers of the Court, and he, as part of his development of thejurisprudence of the Warren Court era, played an enormous rolewhich has been recognized many times over in many forums, andI will not belabor the point. But this case, Terry v. Ohio, was aclassic example of how Justice Brennan worked. As Earl said,there was a draft opinion circulated by the Chief Justice. JusticeHarlan had weighed in with a different viewpoint, a differentapproach, and I was not much paying attention to it. It was notmy job as a law clerk to pay much attention to opinions I was notworking on, so I have a very, very sketchy knowledge of whatwas going on during the time when, as Earl indicates, the draftopinions were sitting out there. All I remember is that one dayJustice Brennan popped into our chambers and said, "Here's anapproach that I think we can try that may move this along." Hehad talked to the Chief Justice, apparently. I do not know whoelse he had talked to, whether he had talked to Justice Douglas,whether he talked to Justice Harlan, or to any of the other swingvotes or swing opinions within the Court, but in any event, whathe asked for was a draft of an approach which he then forwardedon to the Chief Justice. And that is typically how Justice Bren-nan would work. He would be very concerned about how doc-trine was being developed by the Court through the variousopinions, and even if he was not the author of the opinion, hewas quite willing to work with other Justices who did have theopinion writing assignment. He would work with those Justicesin terms of providing drafts of memos or whatever could helpthose Justices break through any log jams.Justice Brennan was quite adroit at going around and per-sonalizing his approach with the other Justices to find out whatwas bothering them, and to try to arrive at some principled con-sensus. An example that I can cite that he, himself, has madepublic was in the school desegregation cases, the freedom ofchoice cases that also came up in that Term. Justice Brennanwas determined that those opinions, which were the impiemen-[72:905908BRENNAN'S SUPPORTING ROLEtation of Brown v. Board of Education,7 had to be unanimous.This was the follow-up to the implementation of Brown, makingsure that de jure segregation in the schools, particularly in theSouth, was removed.' But it was not going fast enough, andfreedom of choice was viewed as a way of simply delaying anddeferring the process. Justice Brennan felt it was important po-litically, and for all the reasons that Earl has pointed out interms of the context that was existing in 1967, that those opin-ions be unanimous. So he worked with every member of thatCourt to deal with reservations individual Justices had to theopinions he was circulating in draft, and at the end of the daythose opinions were unanimous.9 But they were only unanimousbecause Justice Brennan worked the chambers of the SupremeCourt to arrive at a principled decision, one that accommodatedthe conflicting views of different Justices, including some of hisstrongest allies like Justice Douglas and Justice Black.So, it is an interesting process how the Supreme Court goesabout its business. Whole political science courses are taughtabout it. Some of them are right on and some of them are a littleoff the mark, because until you've been there, it is hard to under-stand all of it. I do not mean to be patronizing about that. I haveno idea, to be honest, how the Justices and their clerks work inthe current Court, but in 1967 it was a Court that was, evenwith its philosophical divisions, a very collegial Court. Therewas a great effort to arrive at principled decisions in an erawhen it was clear that the Supreme Court was making profoundchanges in the criminal law context. The whole incorporation ofthe Bill of Rights through the Fourteenth Amendment was in347 U.S. 483 (1954) (hereinafter Brown 1).8 See Brown v. Board of Educ., 349 U.S. 294, 300-01 (1955) (promulgating fac-tors that lower courts should consider in implementing Brown ); see also Goss v.Board of Educ., 373 U.S. 683, 689 (1963) (holding that a Tennessee free transferpublic school desegregation plan was insufficient under Brown 1); Bush v. OrleansParish Sch. Bd., 364 U.S. 500, 501 (1960) (per curiam) (refusing to stay an injunc-tion compelling the state to comply with the Court's desegregation decisions); Coo-per v. Aaron, 358 U.S. 1, 18 (1958) (asserting that the Court's school desegregationdecisions were binding on the state government of Arkansas).9 See Green v. County Sch. Bd. 391 U.S. 430, 441-42 (1968) (holding that a Vir-ginia desegregation plan was insufficient under Brown I and the Court's otherschool desegregation decisions); Monroe v. Board of Comm'rs, 391 U.S. 450, 458-59(1968) (holding that a Tennessee desegregation plan which essentially allowed twojunior high schools to remain segregated did not meet the Court's standards as setforth in Brown 1).19981ST. JOHN'S LAW REVIEWfull swing."0 It was a very exciting time to be there. It is, Ithink, a testament to the way those opinions were put togetherthat 30 years later, as my City Attorney in Los Angeles told me,Terry v. Ohio is still the law.Thank you for letting me share this time.'0 See, e.g., Street v. New York, 394 U.S. 576, 593-94 (1969) (holding that a de-fendant's conviction under a New York statute for desecrating an American flag inpublic could not be permitted to stand under the Fourteenth Amendment); Sibron v.New York, 392 U.S. 40, 63-66 (1968) (applying the Terry standard to a New York"stop and frisk" law); Cooper v. California, 386 U.S. 58, 61-62 (1967) (holding that awarrantless search of an impounded vehicle was reasonable under the circum-stances, where the vehicle was used as "evidence in a forfeiture proceeding").[72:905

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Justice Brennan\u27s Supporting Role

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