Karlier in the term, White’s clerks had quickly fallen into the foutine of Court life. Metal library carts full of cert petitions rolled into the chambers each week, and, as the term progressed, the lime needed for processing each petition dropped from hours to inutes. But the improved pace did little to reduce the boredom of iting through endless formalized pleas. Only the obscenity cases wovided a break in the monotony. Many of these petitions were companied by the exhibits from the original trials—full-length otion pictures, tiny reels of peep-show film, boxes of magazines, ioks, an occasional set of glossy photos or playing cards. The ex- bits circulated among the chambers for perusal by clerks and tices. As one of White's clerks went through the exhibits in two cases uristein v, Missouri and Wiener v. California), his interest went yond mere titillation.232 BOB WOODWARD & SCOTT ARMSTRONG In 1967, the Court had given up a ee a n¢ obscenity, and acknowledged the subjectivity of : : rs ’ vs A ed (Redrup v. New York) that any material hel not j ele by a majority of the Justices, acai on pea ; initi scenity, was protected by the Firs on 4 a i a reversed more than two dozen obscenity coy ictis ecision. aha clerk checked to see whether th boa uae his boss’s personal definition of hard-cot aa raphy. It was a definition that White had never written in| oa erect penises, no intercourse, no oral or ani aah For White, no erections and no insertions equaled no ol és aii clerk noted also that there was no evidence that tf eae had been shown to minors or adults who had not 4 penal out the material. So he typed out his recommen an snevorte on Redrup.” The lower court decision holding ee ials obscene would be reversed without an opinion or o1 eas The Court would not further confuse the 7 on o ressing the Justices’ lack of agreement. The cler! oo | th wie need not view the exhibits. They were clearly not obscet anes sat at his oversized, glass-topped partners a —_ his clerk’s recommendations. When he Ce to 4 cases—and the recommendation that he skip viewi a j hibits White bellowed, “Are you kidding? He got up ‘ : into the clerk’s office, standing next to the soe = there, his feet apart as if he were ready for ap vsicall aa Above the chair there were two Daumier prints of 2 ‘ obscenity trial; White had bought them hee . ee a woman flashing her breasts ata panel of judges, w a in horror. White had given a third print to Brennan, w! | re clerks often urged him to adopt the absolutis' ‘Amendment position of Black and Douglas. tha na any exceptions to the First Amendment put tl i. ou ‘ pery slope,” where one exception justified anot a a other, until there would be little, if anything, left o! ‘Amendment. ing and “Redrupping” individual cases. He decided for the first lime not to give Brennan, Stewart, Marshall and Douglas a fifth yote for reversing the obscenity convictions in these two pending tases. He was going to join the Chief and Blackmun in a dissent. He wanted to handle the obscenity cases differently, Wasn't sure how. THE BRETHREN 233 As often as they brought it up, White insisted he would have none of it. “Don’t give me that ‘slippery slope’ argument again,” he would say. One step did not necessarily lead to another, reasonable lines could be drawn. “The important thing is to know when and how to stop the real censorship of ideas,” “Send in the exhibits,” White now commanded the clerk. He felt obliged to view them before voting to reverse the lower courts. The exhibits were no worse than the usual collection of pornog- raphy that found its way to the Court week after week. White flipped through the material. He quickly saw enough. White did not loathe pornography, as Blackmun and Burger did. It was sim- ply that these were things for his son’s eyes, perhaps, but never for his wife’s or daughter’s, He was bothered less by the material than by its ready availability in every major city across the country. White also wanted an end to the waste of time spent in review- though he White's move irked Brennan. Of course White was exasperated. the endless obscenity cases. So were all the Justices. “I’m sick d tired of seeing this goddamn shit,” Brennan complained, But Brennan realized that the Redrup approach forced the lower purts to go back each time to the original exhibits to try to deduce @ point. The Court was not inclined to allow the lower courts deem obscene anything but the most explicit hard-core pornog- phy. Brennan was not ready to buy Douglas’s absolutist position that thing could be banned. But neither did he feel that the Court ld sit back and let local bluenoses censor whatever they Ought would stain the soul. The Redrup procedure was better nothing—as long as he had the votes,234 BOB WOODWARD & SCOTT ARMSTRONG THE BRETHREN 235 Brennan, like White, had his own private definition of obi ect serious literary works—James f Joyce's Ulysses, William no erections. He was willing to accept penetration as lon| Iner’s Sanctuary, Erskine Caldwell’s God’s Little Acre—from pictures passed what his clerks referred to as the “limp vzealous prosecutors and judges. Under Brennan's definition, dard. Oral sex was tolerable if there was no erection. In lorial was obscene if, to “the average person, applying contem- cases, the material passed Brennan's test. ty community standards, the dominant theme ‘of the material nas a whole appeals to the prurient interest,” But lower courts Ohio, 1964), Stewart had written that only “hard-core” inued to ban material Brennan thought was obviously not ob- phy could be banned, but conceded the subjective nat he. For a plurality, in a 1966 opinion (Memoirs of a Woman of definition: “I shall not today attempt to further define the ure [Fanny Hill] v. Massachusetts), Brennan had next tried a materials I understand to be embraced within that shortha ulation holding that material had to be “utterly without re- nition; and perhaps I could never succeed in doing $0,” ming social value” before it could be banned. This placed the Ligdisnid sb utdulotovitahenuliseaited en on prosecutors to prove that nothing in a work redeemed He had seen it during World War II, when he served as Pornographers then took to citing medical reports or throwing lieutenant. In Casablanca, as watch officer for his ship, he h es from Shakespeare to protect the product, his men bring back locally produced pornography. He ni ii Douglas's view, these efforts by the Court to define obscen- difference between that hardest of hard-core and much ¢ ere absurd. The only remotely rational development, he felt, came to the Court. He called it his “Casablanca Test.” ‘ J occurred in a 1969 case (Stanley v. Georgia) when Marshall said obscenity was largely a personal privacy question. He had ilten, “If the First Amendment means anything, it means that a le has no business telling a man, sitting alone in his own house, | books he may read or what films he must watch.” i) defense lawyers attempted to expand the logic of Stanley, dreds of cases began working their way up to the Court, If © was a constitutional right to possess obscene material in § home, then there was a right to buy it. If there was a right to the pending obscenity cases, was also a vote to Red Douglas, of course, was a fourth vote. absolutist on the Court. He and Black had been certain impossible to define obscenity. Any laws banning it, were doomed to be vague and unconstitutional. There coul be an obscenity law clear enough to meet the constitutio it, there was a right to sell it. If there was a right to sell it, there quirement that a person must know beforehand whether: \ aright to distribute it. If there was a right to distribute it, then ineullegally, at ire must be a constitutional right to write, photograph or film it. The Court's sin, Douglas felt, had been to make obscenity 40 their logic went. . ception to the First Amendment in the first place. And the ¢ {the privacy logic could be extended all the way, the lawyers ar- sinner, the father of obscenity law, the author of the fii id, the distinction between obscene and not obscene would be- opinion that had attempted a definition, was Bill Brem ne largely irrelevant. There would be no need to define 1957 case (Roth v, United States), Brennan had written an eenity as long as people had the right to see and read what they holding that there was one category of expression, obsce hed, But Brennan had hesitated over Stanley, and during the was not speech, and thus was not protected by ious two terms had-refused to provide the liberals a crucial Amendment and could properly be banned. lh vote to extend the logic. Now, with White shifting and two Douglas knew that Brennan had developed his defi Nixon Justices taking their seats, Douglas feared that a major-