BRANDED SECOND-CLASS CITIZENS
NORMALLY, ONCE A CASE has been voted on in conference, it gets shoved onto a back burner, except in the chambers of a justice writing the majority opinion or a major dissent. Yet Powell was forced to keep thinking about Hardwick because he was under extreme pressure to switch his vote. Clerk Mike Mosman kept advocating reversal. And the day after the conference vote, Chief Justice Burger personally delivered a letter practically begging Powell to provide the crucial fifth vote for reversal. It was almost as if Burger were soliciting Powell's vote as a retirement gift even though the chief didn't publicly announce his departure for another month.
Burger's April 3 letter, a rare departure from the justices' tradition of not overtly lobbying one another, offers an invaluable window into the 78-year-old chief justice's hostility toward homosexuals:
I have some further thoughts on your suggestion at conference that Hardwick cannot be punished because of his "status" as a homosexual....
You will remember my "degree" in psychiatry, which led me to be very skeptical about that breed of M.D.'s. [Burger, whose "degree" was earned writing an opinion on psychiatric testimony, was leery of having "the shifting tides of scientific opinion" influence courts.] I have never heard of any responsible member ... of the A.P.A. [American Psychiatric Association] who recognized homosexuality as an "addiction" in the sense of drug addiction. It is simply without any basis in