The Last Days of the Warren Court: How Justice Brennan Orchestrated Shapiro v. Thompson (1969)

On April 21, 1969, the Supreme Court invalidated state durational residency requirements for receipt of public assistance and helped establish a fundamental, constitutional right to travel in Shapiro v. Thompson.¹ In announcing Shapiro, Justice William J. Brennan "read lengthy excerpts" from his majority opinion to spectators in the Courtroom.² Brennan's prioritization of protecting the poor through the Fourteenth Amendment in Shapiro did not come as a surprise that day. Since he joined the Warren Court in 1956, Brennan and his fellow justices had been addressing wealth discrimination, hoping to apply the Equal Protection Clause to protect the rights of the poor.

Chief Justice Earl Warren dissented in Shapiro. This was unusual. Brennan and Warren had been allies for twelve years, more often than not voting together on landmark cases. Notably, the chief justice had voted with the majority and Brennan in: Gideon v. Wainwright (1963),³ holding the Sixth and Fourteenth Amendments guarantee a right for legal counsel to an indigent defendant accused of a felony; Douglas v. California (1963),⁴ holding that states must provide indigent persons with counsel on a first appeal of right to challenge a criminal conviction; and Harper v. Virginia Board of Elections (1966),⁵ holding a state law conditioning the vote on payment of a $1.50 poll tax denied equal protection. But Shapiro was different. Brennan had to deploy his persuasive powers to marshal a majority without Warren, who was about to retire.

The story of how Brennan orchestrated Shapiro bears re-examination, as it took many twists and turns to arrive at the final decision. Moreover, the case took on heightened drama as some of the justices were worried about antagonizing Congress with a decision that would require states to pay assistance to indigents at a time when Congress was debating whether to raise judicial salaries.

The Warren Court

The Warren Court spanned fifteen years (1953–1969) and Brennan served for twelve of them.⁶ One of Warren's clerks, Robert T. Lasky, summed up the relationship between the chief justice and the associate justice:

Spearheaded by … Warren and … Brennan, the Warren Court radically expanded the reaches of the judicial power and altered constitutional law in a way that reverberates to this day. … Warren was the leader of the liberal wing; Brennan would provide its intellectual underpinnings.⁷

Lasky said Warren knew Brennan, the "intellectual anchor" who did "real hard, heavy lifting from a thinking standpoint," could articulate legal arguments in a manner the former governor of California could not.⁸ Another clerk, Paul J. Meyer, recalled that Warren and Brennan were always "very close" and that Brennan was "clearly Warren's tight ally of the Court."⁹ Their companionship has led historians to refer to their overlapping time on the bench not as the "Warren Court," but "the Brennan Court."¹⁰

Brennan and Warren mostly voted in lockstep. Warren often tasked Brennan with convincing a fifth justice to join them alongside liberal-leaning Justices Hugo L. Black and William O. Douglas.¹¹ If Brennan was successful in garnering a fifth vote, then Warren would have the assignment power. Often, Warren assigned Brennan to write opinions in seminal cases. Notably, the chief justice assigned him Baker v. Carr,¹² the reapportionment case that Warren deemed "the most important case of [his] tenure,"¹³ and Cooper

Earl Warren and William J. Brennan served together on the Court for 12 years and mostly voted in lockstep. Above they are shown examining Chief Justice John Marshall's Courtroom notes at the National Archives in 1966.

v. Aaron,¹⁴ a 1958 case denouncing Southern resistance to school desegregation.

Thurgood Marshall was appointed in 1967, and soon became Brennan's ally.¹⁵ Marshall's presence gave the Court a solid block of seven liberal justices. Such a large number of like-minded justices put Brennan at ease—he no longer needed to rely on using Warren's opinion assignment power to force wavering justices to author opinions that aligned with his liberal values.

Beginnings of the Case

In June 1966, Vivian Thompson moved from Dorchester, Massachusetts to Hartford, Connecticut to live with her mother.¹⁶ Thompson was a 19-year-old, unwed mother of one with a second child on the way. After her mother could no longer support her financially, Thompson moved into her own apartment but remained near her aging mother's Hartford home.

Thompson did not have the means to cover her living expenses. Since she was pregnant again she could not participate in a job training program. And because she was no longer a Massachusetts resident, she did not qualify to receive Aid to Families with Dependent Children (AFDC) assistance from Boston. Thompson applied for Connecticut public assistance. On November 1, 1966, Bernard Shapiro, Commissioner of Welfare for Connecticut, denied Thompson's AFDC application solely because she had not met the Conn. Gen. Stat §17-2d residency requirement, which stated in relevant part:

When any person comes into [Connecticut] without visible means of support for the immediate future and applies for [AFDC] … within one year from his arrival, such person shall be eligible only for temporary aid or care until arrangements are made for his return, [and] provided ineligibility for aid to dependent children shall not continue beyond the maximum federal residence requirement.¹⁷

To "protect its fisc" and ensure receipt of federal funding, Connecticut imposed the maximum waiting period—one year.¹⁸ Thompson subsequently filed suit in the Connecticut District Court, alleging an impermissible infringement on her constitutional rights.

Shapiro was initially framed to contest the right to receive welfare benefits. Originally the Aid to Dependent Children program, "welfare" was enacted as part of the Social Security Act of 1932 during the Great Depression, meant to help qualifying single mothers. In 1962 it was renamed the Aid to Families with Dependent Children (AFDC) program. The program was criticized with three arguments: AFDC encouraged poor adults who could work to not work; it caused dependency—people embraced it as a way of life rather than as a temporary safety net; it encouraged having children out of wedlock. The case came before the courts at the height of such criticisms, meaning its decision would likely be taken as a comment on the AFDC's policy effects.

The Connecticut District Court

The Connecticut District Court found the welfare waiting periods had a "chilling effect on the right to travel."¹⁹ The "right to travel" originated in Edwards v. People of State of California,²⁰ a 1941 case where the Supreme Court struck down a California law making it a misdemeanor for residents to bring non-resident indigents into the state. The Court held that the law infringed on an indigent's "privilege of [United States] citizenship" to "move freely from State to State." "[I]f national citizenship means less than [having the right to travel], it means nothing."

According to the Connecticut court, Edwards extended to the instant case, because the "right of interstate travel embodies not

The Shapiro case questioned whether the federal Social Security Act permitted states to enact residency requirements of up to one year as a prerequisite to receiving welfare benefits. The plaintiffs argued it infringed on their right to travel. Above a girl waits between buses at the Chicago Greyhound Terminal.

only the right to pass through a state but also the right to establish residence therein."²¹ The judges applied rational basis review, which requires only that a classification be "rationally related" to some legitimate state interest. Notwithstanding the deferential nature of this standard, the district court still struck down the Connecticut statute as constitutionally impermissible. "Even if the [statute's] purpose were valid," it wrote, "the classifications are unreasonable."²² First, the "classification based on wealth" was unreasonable because Connecticut did not show "the applicant with cash would be a lesser drain on the state treasury." Second, the residency requirements were unreasonable because the state did not show that applicants who lived in the state for one year would be "lesser burdens than applicants without jobs or one year's residence."

The state appealed to the Supreme Court under the Three Judges Act, which authorized direct appeals to the Supreme Court.²³

The Supreme Court Hears the Case, May 1968

On January 12, 1968, the justices noted Shapiro v. Thompson's probable jurisdiction—but which justices did so is unclear.²⁴ Brennan's docket book indicated that all but Chief Justice Warren, William O. Douglas, and Thurgood Marshall noted probable jurisdiction.²⁵ Warren's docket book varied from Brennan's: He drew checkmarks next to each justice's name but appears to have erased the marks next to Marshall, Brennan, and Douglas's names.²⁶ Warren's docket book in the following Term confirms the three did not note probable jurisdiction.²⁷ These discrepancies were the first of many disagreements surrounding Shapiro and its sister cases, Washington v. Legrant²⁸ and Reynolds v. Smith²⁹—referred to in tandem as "the Welfare Cases."

On April 12, Vivian Thompson's counsel, Francis J. MacGregor, filed her brief, which alleged four reasons as to why Connecticut's residency requirement statute was invalid. First, the statute infringed on the right to travel in violation of the Privileges and Immunities Clause of the Fourteenth Amendment. Second, the statute violated the Fourteenth Amendment by abridging the right to establish residence in Connecticut. Third, the statute violated the Equal Protection Clause because it discriminated against persons based on their wealth. Fourth, the statute violated the Equal Protection Clause because its classification was unreasonable considering the statutory purpose.³⁰ The latter two allegations sought equal protection coverage for poor persons.

On May 1, the Court heard the Welfare Cases. According to Brennan's Term Summary, questioning "focused on the 1966 [Social Security Act] amendments and from there the problems began."³¹ The federal Social Security Act (SSA) permitted states, in relevant part, to enact residency requirements of up to one year as a prerequisite to receiving welfare benefits.³² The state of Connecticut, understanding SSA residency requirements as constitutionally permissible, urged the Court to extend such logic to residency requirements in public assistance statutes.³³ Whether the SSA regime was controlling "loomed important," as it turned Shapiro's question from a state's power to restrict travel, perhaps under the Equal Protection Clause, into "whether Congress [] regulated travel [beyond] its limitations."³⁴

Francis MacGregor, Assistant Attorney General of Connecticut, argued on behalf of Bernard Shapiro, Commissioner of Welfare of the State of Connecticut. MacGregor split his time with the Assistant Attorney General of the State of Iowa, Lorna Williams.³⁵ Mac-Gregor argued the Court could, itself, create a "rational explanation" for the statutory classifications at issue, but Brennan asked MacGregor to "suggest one."³⁶ MacGregor proffered that although the statutes discouraged traveling to "get on … welfare," they eased the state's administrative burden. States had a "considerable problem" when it came to the insufficient "amount of welfare funds" they were receiving. The state's administrative interest, MacGregor insisted, therefore outweighed the statute's impact. Discussion of statutory impact piqued Warren's interest, who asked whether Connecticut "claimed" Thompson as a citizen. MacGregor answered the question with another question: "Well, would she have come [to Connecticut] if welfare was not available[?]"

Brennan and Warren's comments about the reasonableness of the classification shone a light on their conflicting stances. With "so many dollars [are] available," Brennan suggested states could protect their fiscal interests without implementing waiting requirements. Warren asked whether a state lacking funding could constitutionally "cut off all those who have been [in the state] for five years."³⁷ MacGregor replied that "some states … have [a] five [year] residency requirement" under the SSA."³⁸

When Lorna Williams took her turn at the podium, Justice Abe Fortas dominated the conversation with her, only letting Justice Potter Stewart interject briefly.³⁹ Warren and Brennan both remained quiet throughout Williams' argument, with Warren speaking up only to thank Williams for her argument.⁴⁰

Brian L. Hollander, a Hartford attorney, argued on behalf of Thompson. Fortas, again monopolized questioning to focus on whether residency requirements for welfare payments "burden[ed] … the right to travel."⁴¹ Brennan interrupted to clarify: Constitutionally, disqualifying Thompson for "no reason except that she's not been in the state for one year … cannot be done," he stated, "that's really your argument."⁴²

Washington v. Legrant and Reynolds v. Smith

Shapiro did not arrive before the Court alone. Two other appeals were heard in tandem with Shapiro—Washington v. Legrant⁴³ and Reynolds v. Smith.⁴⁴ The three cases were aggregated because, like Shapiro, appellants in both Legrant and Reynolds sought certiorari after a "three-judge District Court [held] unconstitutional a [nonfederal] statutory provision which denie[d] welfare assistance to residents … who ha[d] not resided within their jurisdictions for at least one year immediately preceding their applications for such assistance."⁴⁵ In Reynolds v. Smith, Juanita Smith was denied AFDC aid on the ground that she had not lived within Pennsylvania for one year proceeding the filing of her application. Washington v. Legrant had four appellees. Three of them—Minnie Harrell, Gloria Jean Brown, and Clay Mae Legrant—applied for and were denied AFC. Vera M. Barley, the fourth appellant, applied for and was denied benefits from a disability program. All four appellants were denied aid by their respective jurisdictions on similar grounds to Reynolds.⁴⁶

During the portion of oral argument dedicated to Washington v. Legrant, Warren focused on the Social Security implications. He asked Richard Barton, Assistant Corporation Counsel for the District of Columbia, arguing on behalf of Walter E. Washington, the Chief Executive of the District, whether the type of dispersed aid impacted the constitutionality

The Warren Court justices heard the first oral argument in the Welfare Cases in May 1968.

of waiting periods. Barton answered in the negative—in his opinion, even the SSA residency requirements were unconstitutional. Brennan interjected: "But I gather your argument," he said, is that the government has a "broader latitude … to regulate the right to travel … [I]s that your point?" Barton replied, "Yes, it is."⁴⁷

Peter S. Smith, Legrant's counsel, argued no welfare applicants moved "for the purpose of getting public aid." Brennan, for the last time during oral arguments, spoke to clarify Smith's position: "the reasons why" people went to a state were not decisive—what mattered is whether they participated in interstate travel.⁴⁸ Warren remained silent.

During argument for Reynolds v. Smith, William C. Sennett, Attorney General of Pennsylvania, discussed the state's treatment of indigent non-residents seeking disability: "reciprocal agreements" allowed Pennsylvania to provide benefits to non-residents coming from one of 18 states.⁴⁹ If the person requesting benefits came from one of the other 32 states, Pennsylvania would arrange for the requester to return to their state of origin—and if they refused to leave, "individual counties" could "provide benefits." Interested, but not enough to inquire further, Warren reaffirmed what he had heard: "[So y]ou do have programs … that [permit indigents to receive disability benefits]." Replied Sennett, "That's correct, Mr. Chief Justice."⁵⁰

Conference

On the afternoon before most Conferences, "Brennan and the Chief would get together" to discuss "the cases and the approaches."⁵¹ If they could corral five votes at Conference, Warren would have assignment power, and the pair would be in a fortunate position heading into drafting. That Warren voted in the majority at the Welfare Cases Conference meant he had the assignment power—with a caveat. Brennan explicitly asked Warren not to assign him the opinion. presumably when the pair met the day before Conference.⁵²

On May 3, 1968, the justices met to discuss the Welfare Cases and vote on the merits.⁵³ Douglas, Warren, and Brennan's Conference notes show the original vote was 5–4, reversing all three of the lower courts.⁵⁴The Chief Justice, voting to reverse, spoke first.⁵⁵ Warren felt "very strongly" that waiting requirements were "appropriate because otherwise [states] would not be as generous in [their] welfare and assistance programs, if anyone who just arrived in the state could get [welfare]."⁵⁶ "[Warren] just can't see," transcribed Brennan, "how [he] can say that the [SSA] is [unconstitutional]."⁵⁷ Douglas, too, wrote in his Conference notes that Warren couldn't "say [the SSA] is bad" because "Congress lets states [have] discretion as to residence up to one year."⁵⁸ Douglas also noted Warren wished to "reverse" because there existed "another category of state relief available to indigent[s] who can't prove 1 year residence."

Brennan found it "hard to say" residency requirements constituted "invidious discrimination" because the requirements did, in fact, ease administrative problems, and the statutory impact on indigents was incidental to the scheme's real purpose. He therefore cast a "tentative[]" vote to reverse.⁵⁹ Warren assigned himself to author the Welfare Cases.⁶⁰

Drafting

On June 1, nearly one month after the initial Conference, Warren assigned the Welfare Cases to his law clerk, Charles Wilson. At the direction of Warren, Wilson read "more than 5,000 pages of … legislative history of the Social Security Act" before he began writing.⁶¹ Wilson's draft maintained that the SSA proved Congress properly "authorized the States to impose one-year waiting periods" prior to receiving benefits under the commerce power."⁶² On June 3, Warren circulated a draft opinion, but it "did little to hold the majority together" because it did not go further than interpreting §402(b).⁶³

Warren refused to re-examine the right to travel "partly because of the pressure of time as the end of the Term approached and partly because the uncertain Conference vote … did not make the cases an ideal vehicle for re-examining the meaning and scope of the right. …"⁶⁴ Brennan was "not at all convinced" by Warren's logic and found it particularly difficult to support the inference that states were constitutionally permitted to act on their "desire to exclude indigents" from interstate travel.⁶⁵ Unwilling to join Warren, and largely uninterested in providing substantive feedback, Brennan did not respond to the draft.

After drafting one handwritten and two typewritten versions of his dissent, Douglas circulated a printed copy to the Court on June 5.⁶⁶ Douglas "would join the opinion of the court" if this case concerned the commerce power—but under Edwards, "[t]he right of movement is a 'privilege' or 'immunity' protected by §1 of the Fourteenth Amendment." The lower courts should be affirmed, he thought, because the states gave "no substantial justification for the interference with the right to travel."

Two days later, the justices decided the Term would end on June 17, and that they would hold a final Conference on June 13.⁶⁷ Brennan, however, would not attend the final Conference because he would be at Harvard to accept an honorary degree.⁶⁸ The fast-approaching end of the Term and Brennan's absence sparked an urgency in Fortas, who hurried back to his office to "plug[] away at the dissent," hoping Brennan "and other uncertain Justices would hold off until [its circulation.] But time was fast running out."⁶⁹

On June 10, John M. Harlan circulated a concurrence that justified Congressional waiting requirements as "reasonable" means that served various state interests.⁷⁰ Brennan believed Harlan's effort was more convincing than Warren's or Douglas's but found several of Harlan's reasons "reduced to the proposition that the States wanted to keep out indigents."⁷¹ He did not need to settle for Harlan's concurrence. The same day, Fortas, in a state of "near desperation," submitted a "rough draft [of his dissent] to Brennan."⁷² It was nowhere near finished, but Brennan believed Fortas's draft did "an effective job of demolishing the chief justice's opinion and a fairly credible job of dealing with [] Harlan's."⁷³

Listing his arguments in bullet points, Fortas labeled the purported justifications as "unreasonable" acts which exceeded their constitutionally permitted scope.⁷⁴ "Congress was justified in authorizing the state to interfere with the right to travel because it did so in order to induce the states to cooperate in the program to provide improved welfare benefits to the needy," he wrote. "This is the only reason advanced to justify the state legislation."⁷⁵ The Connecticut statute "obviously and palpably was designed to discourage poor people from [engaging in interstate travel] … by denying relief to residents who have been resident for less than a year." "The fact that here we deal with the right to travel," Fortas said, "makes no difference." He did not believe it could be "seriously contended" that Congress would be "constitutionally justified" in claiming state cooperation as a "need" when the legislative effect was blatantly discriminatory—for example, if the legislation allowed the building of segregated southern schools. This analogy to authorizing programs to build segregated schools resonated with Brennan—the same analogy appeared in the justice's eventual majority opinion.

On June 11, Brennan joined Fortas's dissent. Brennan agreed the cases could be disposed of on the burden argument alone and expressed hesitancy as to whether it was necessary to "add the additional support of a denial of equal protection."⁷⁶ Believing "he may have a Court [now that] Justice Brennan [was] considering changing his vote," Fortas took and applied Brennan's comments.⁷⁷ He printed and circulated a draft of his dissent on the morning of the June 13 Conference.⁷⁸

But "Fortas' jubilation was short-lived."⁷⁹ The other justices were not as enthusiastic about Fortas's dissent—Douglas scribbled "Really? So what?" next to a point made about how the residency requirement "obviously and palpably" discouraged "poor people from coming [or leaving]."⁸⁰ At Conference, the justices split 4–4. "Justice Stewart apparently refused to be rushed into making a deciding vote."⁸¹ His refusal wrested control from both Warren and Brennan—and with that, the Welfare Cases were put over for reargument. On June 19, at the end of the Term, the parties were instructed to "brief and argue [law clerk Wilson's proposed] question" of which "test of validity [should] apply" to the residency requirements.⁸² On June 26, Warren announced that he was retiring as soon as his successor, Abe Fortas, was confirmed.

Reargument: October 1968

Thompson's supplemental brief presented two arguments.⁸³ First, the "one-year residence requirement violates the Equal Protection and Due Process Clauses by discriminating, without justification, between persons identically situated in relation to fundamental human needs, solely because of the exercise of geographic migration." Second, "§402(b) of the Social Security Act is not controlling."

Reargument of the Welfare Cases spanned two days, from October 23 to October 24, 1968.⁸⁴ Connecticut Assistant Attorney General Francis MacGregor and Iowa Assistant Attorney General Lorna Williams again argued on behalf of the appellants.⁸⁵ Two weeks earlier, Fortas, the nominee for chief justice, had withdrawn his name in the face of allegations that he had advised President Johnson on policy matters and lied to the Senate about it and that he had accepted fees for university lectures from parties with business before the Court. Warren would stay on the Court for the rest of the Term and participate in Shapiro to its conclusion. During oral argument, Fortas spoke more than any other justice. Unlike the first set of arguments, there was much discussion of the right to travel, the Fourteenth Amendment, and which standard of review to apply. Richard Barton, Assistant Corporation Counsel for the District of Columbia in the Washington case, argued that fiscal conservation and "prevention and detection of fraud" were two constitutionally "proper legislative purpose[s]."⁸⁶ Barton distinguished Edwards v. California (1941),⁸⁷ which had struck as unconstitutional a law criminalizing the bringing of a non-resident indigent person into California and United States v. Guest (1966),⁸⁸ which condemned as impermissible a criminal conspiracy affecting an individual's right to free interstate passage.⁸⁹ Those cases, contested Barton, concerned "a direct infringement upon the right to travel," whereas the Welfare cases "mere[ly] discourage[d]" exercise of the right.⁹⁰

Instead of Hollander, Smith, or Sennett arguing for the three appellees as they had in May, Archibald Cox, Harvard Law Professor and former Solicitor General, took over.⁹¹ Cox said "the courts below were right in very largely ignoring §402(b)" in their analysis, as there existed "no question" of judicial deference to the legislative judgment that "a one-year requirement is a good thing."⁹² This statement elicited Warren's first comment of the day because his draft from the previous term relied on §402(b).⁹³ Making a nod to Cox's oral argument in the seminal Reynolds v. Sims (1964),⁹⁴ which held that the electoral districts of state legislative chambers must be roughly equal in population, Warren asked whether "instead of the appellees asking for [welfare, indigents] ask[ed] for … and were denied the right to vote … How would that appeal to you on the travel argument that you made?"⁹⁵

Archibald Cox, Harvard Law Professor and former Solicitor General, argued the cause for the appellees in all three cases on the re-argument in October 1968.

Cox took a narrow approach, arguing "the differentiation between old and new residence serves a useful purpose" for exercising voting rights.⁹⁶ But an old man, Cox proffered, should be eligible to receive a pension "as soon as he becomes a resident," as waiting periods in the old-age pension context did not serve a legitimate purpose.⁹⁷ The Court recessed for the evening–-and Brennan went home without uttering a word.

Cox began argument the next morning by advising the Court that it need not "break new constitutional ground in [the Welfare cases]."⁹⁸ Rather, the justices needed only to stay in "accordance with settled constitutional principles" by "condemning discrimination" in legislation that bore no "rational relationship to some state objective."⁹⁹

Warren re-visited his voting rights question from the previous day. He mentioned that there exists "no distinction" between people who were "temporarily in a community and those who have lived there for a long time" when voting for the president of the United States. Cox pointed out that the "Constitution itself introduced that distinction," and promptly shifted to answer Stewart's questions concerning the percent of welfare applications in the District from people who hadn't satisfied the year-long waiting requirement. Brennan finally broke his silence—but only to correct Cox's presented figures, rather than to ask a material question.¹⁰⁰

Justice Byron R. White asked whether out-of-state tuition is unconstitutional. Cox replied: "[C]ollege education, important as it is," is not a "basic necesssit[y] in life." Warren asked, "What is then, General?" Said Cox: "[W]hether you preserve the family, or whether people have food or shelter over their heads, or whether they go free, … is more fundamental, more important to human existence than whether one has the benefit of a college education."¹⁰¹ Brennan got the last word, again only to clarify what he had heard: "Your argument is that if [fiscal conservation] were the[] real [statutory] purpose then [the statutes would] be unconstitutional in a different way than they are being unconstitutional right now."¹⁰² Cox agreed.

Conference

The following Monday, October 28, the justices met to discuss the Welfare Cases.¹⁰³ The initial Conference vote was 5–3 to affirm.¹⁰⁴ Douglas noted that Stewart, who had refused to make up his mind in the Term prior, "follow[ed] Cox's argument & brief," and cast a vote to affirm the lower court's holding that the Connecticut statute was unconstitutional.¹⁰⁵ Brennan, too, voted to affirm. White passed on the initial vote. Warren "adhere[d] to [his] earlier views" and voted to reverse.¹⁰⁶ Black and Harlan maintained their votes to reverse.¹⁰⁷ Because Warren voted with the minority, opinion assignment power fell to the most senior justice in the majority—Douglas, who assigned the opinion to Brennan.¹⁰⁸ That Douglas assigned the opinion to Brennan and not Fortas seems curious. Fortas had authored a dissent urging the Court to affirm in the previous Term and contributed extensively in oral reargument. Perhaps Douglas felt hesitant to assign Fortas a case that would strike down congressional legislation considering the Senate had on October 4 refused to vote on Fortas's nomination to replace Warren as chief justice.

Douglas received a note from "A," which informed him that he would be "assigning the welfare cases."¹⁰⁹ It could be that 'A' was Fortas, seeing as he wrote the Welfare Case dissent the Term before. Regardless of who was behind the message, "A" suggested tactically assigning the opinion to maintain his majority: "Do not hesitate to assign [the cases to Stewart] if you think that's [necessary] to ensure that he doesn't fall of the wagon." If this note had any impact on Douglas's decision in assigning the Welfare Cases, it is logically sound that Brennan received the opinion over Fortas and Stewart. Brennan was known for creating and maintaining majorities—and in a case with a razor-thin margin such as the Welfare Cases, his ability to navigate the pulse of the Court seemed much needed.

Brennan's reputation for cobbling together majorities may not alone have convinced Douglas to assign him the opinion. Perhaps Brennan's history—namely, his work to develop equal protection for the poor in Griffin v. Illinois¹¹⁰ and Gideon v. Wainwright¹¹¹—suggested he should author Shapiro. After all, affirming the Welfare Cases meant tackling the underdeveloped constitutional question of what standard of review should apply to legislation burdening the fundamental right to travel. The notion of "levels of judicial scrutiny" was suggested in Footnote 4 of United States v. Carolene Products Co. in 1938.¹¹² Most recently, Loving v. Virginia,¹¹³ decided the Term before, found that statutes must be narrowly tailored and use the least restrictive means possible to achieve a compelling government purpose if implicating a fundamental right. If Brennan could convince other justices that the standard of review to apply turned on the defendant's socio-economic status, he would be that much closer to establishing income as a constitutionally cognizable class.

Brennan and his clerks had a theory as to why Douglas did not assign Fortas to write the majority: The "shortcomings" in Fortas's dissent in the Term prior "played a large role in Mr. Justice Stewart's hesitation last term" and "Professor Cox's arguments … finally and firmly persuaded Justice Stewart" to cast an affirming vote.¹¹⁴ Assigning Fortas to write the majority would risk losing Stewart's vote.

The assignment likely irritated Warren. Brennan had, after all, refused to author the opinion just months prior. But Brennan's willingness to accept such a task after reargument supports this theory—he did not wish to be the one to pen the welfare holdings unless he was expanding equal protection for the poor. Whether in blatant defiance or to regain a semblance of control, Warren refused to cast his final vote before each justice first circulated his respective opinions.¹¹⁵

Drafting

On October 24, 1968, immediately after reargument, Harlan circulated a 17-page memorandum that largely echoed his drafted concurrence from the Term prior.¹¹⁶ Without acknowledging the memo, Brennan began working on the majority opinion. On December 2, Brennan circulated his draft.¹¹⁷ Notwithstanding the tight 5–3 initial Conference vote, with Harlan, Warren, and Black voting to reverse, Brennan adopted Professor Cox's argument: "fundamental rights" deserved the strictest standard of review. Waiting requirements impermissibly classified "between new and old residents" and "penalized the exercise of the right to interstate travel."¹¹⁸ Against the suggestion of his clerks, who worried he may lose his majority for taking such a broad approach, Brennan echoed Cox and stated the one-year residency requirements put at stake "the very means to subsist–food, shelter, and … necessities of life."¹¹⁹

Douglas, Stewart, Fortas, and Marshall all joined Brennan's opinion.¹²⁰ On December 4, only two days after Brennan circulated the opinion, Marshall wrote Brennan asking to "join me in this one," calling it a "perfect job—clear and precise—not over-broad—just right."¹²¹ Fortas joined on December 6, stating simply, "I agree."¹²² Before Stewart and Douglas responded, however, Harlan wrote on December 5: "I shall circulate a dissent in these cases."¹²³

Given that Stewart had refused to cast a decisive vote on the Welfare Cases in the previous Term, Brennan likely expected him to continue to waiver. Stewart did "express[] hesitation about the use of the compelling interest analysis" in Brennan's opinion.¹²⁴ He believed the proper form of review to be a "traditional standard of equal protection"—rational basis review.¹²⁵ Brennan was "amazed by Stewart's position,"¹²⁶ particularly because Brennan understood Carrington v. Rash (1965),¹²⁷ authored by Stewart himself, as applying a heightened standard of review to strike legislation burdening the fundamental right to vote."¹²⁸

In a memo to Stewart, Brennan addressed the impact of Carrington on the Welfare Cases.¹²⁹ Brennan acknowledged that while his majority "strongly implies … administrative objectives advanced as justification for the waiting period requirement do not qualify" under rational basis review, such was not the message he meant to convey. He went "no further than to say" even under rational basis review, "a classification of welfare applicants according to whether they have lived in the state for one year would seem irrational and unconstitutional." Brennan found this distinction important, as he felt "uneasy" issuing a "flat statement that the waiting period requirement is invalid" under the most deferential standard of review because he wasn't sure precedent could support such a claim.

To prove his point, Brennan cited Carrington, which found a state's interest in "administrative benefit" did not justify infringing on bona fide residents' exercise of voting rights. "If the [Carrington] issue did not involve an underlying constitutional right," said Brennan, "'some administrative benefit' would have sufficed" as a justification. To protect the right, then, meant to "go beyond" rational basis review—just as the Court did in Carrington. Brennan was not willing to forgo a compelling interest standard–the Welfare Cases, he said, "clearly" involved the underlying right to travel.¹³⁰ If Brennan were satisfied with anything less than strict scrutiny, he could have produced Fortas's dissenting opinion (applying rational basis review) from the previous Term with little to no substantive change.

Brennan's refusal to change the standard of review worked. Stewart conceded his insistence on rational basis review was mistaken and agreed a compelling interest analysis was appropriate because "the right of interstate travel … was a constitutional right."¹³¹ He was willing to accept Brennan's opinion "as long as no reliance was placed on Carrington or on Williams v. Rhodes,¹³² another case involving the right to vote." Instead of conducting a "lengthy analysis of the doctrinal roots of the right to travel," Stewart suggested Brennan cite United States v. Guest (1966).¹³³ Guest held that it violates the Fourteenth Amendment if a state participates in a conspiracy to deny African Americans of full and equal enjoyment to access state highways, based on the "constitutional" right to travel. Further, Guest held that the right to interstate travel "occupies a position fundamental to the concept of our Federal Union" and is "firmly established and repeatedly recognized [by our Constitution]"—in other words, the right emanated from the "Constitution itself." Stewart, who wrote the Guest majority, stopped short of identifying a home for the right, even though earlier cases like Edwards v. California (1941) identified the right to travel as protected by the "privileges or immunities clause of the Fourteenth Amendment."¹³⁴ Concurring justices in Edwards proposed that impairing a person's ability to freely traverse interstate borders violated the implied rights of U.S. citizenship, and thereby violated the individual's right to equal protection under the Fourteenth Amendment.

Brennan used the Guest Court's refusal to identify a particular source of the right to recognize it as fundamental. Indeed, his majority later said: "the nature of our Federal Union and our constitutional concepts of personal liberty … require that all citizens be free to travel throughout … our land uninhibited. …"¹³⁵ Brennan could use Shapiro, then, to further protect the poor by finding that a state's purpose of inhibiting a poor person's exercise of the right as constitutionally impermissible. Brennan agreed to cite Guest and refrain from placing reliance on Carrington. On January 7, 1969, Stewart told the Conference he was "glad to join the [majority] opinion."¹³⁶

Black and Harlan: Drafting

While Brennan was preoccupied with Stewart, Black circulated an opinion concurring in part and dissenting in part.¹³⁷ He relied heavily on Takahashi v. Fish & Game Commission (1948),¹³⁸ an opinion he authored, which posited that state legislation could not infringe on the rights of the people to reside where they wished. If Brennan would quote Takahashi in his opinion, Black would join to affirm the state cases and issue a brief dissent in Washington v. Legrant, which concerned an Act of Congress.¹³⁹ Brennan obliged, leaving him with six votes upholding application of a strict scrutiny analysis on infringing an indigent's right to cross state lines.

On January 7, 1969, Harlan circulated his dissent. He scrutinized the majority's heightened standard of review—in his opinion, strict scrutiny should only be applied in cases concerning a legislative classification involving race.¹⁴⁰ Brennan thought this to be a "surprisingly weak" statement, seeing as the Court applied heightened levels of review in striking non-racial classifications as recently as the Term prior in Loving v. Virginia.¹⁴¹ Harlan accused the majority of legislating from the bench, while simultaneously suggesting an ad hoc equal protection balancing test, a standard often criticized as being legislative itself.¹⁴² He concluded his dissent by stating the majority "turned on the right to the necessities of life rather than the right of interstate travel." Harlan circulated another draft on February 10,¹⁴³ and another on February 17.¹⁴⁴ Brennan responded to none of Harlan's opinions.

To Brennan's surprise, on February 19, Black wrote to the Conference asking Brennan to "[p]lease note at the end of your opinion 'Mr. Justice Black dissents'," notwithstanding the incorporated references to Takahashi.¹⁴⁵ Brennan likely saw no point in trying to get Black to change his mind: the Alabama justice was blatantly contradicting his own precedent and without him Brennan still had five votes. Brennan deleted the Takahashi references.¹⁴⁶ White, after reading Harlan's third dissent draft, voted to affirm on February 21: "I have been slow but I am now traveling with you as the Due Process Clause or some other provision tells me I have the right to do."¹⁴⁷

Stewart and Marshall Delay Their Response to Harlan

Stewart told Brennan he wished to address Harlan's dissent.¹⁴⁸ It was a logical request as Harlan negatively referenced two of Stewart's opinions: Carrington and Guest. A few days after his request, Stewart notified Brennan that "a series of distractions this week" meant he had "simply not been able to give any thought to Shapiro."¹⁴⁹ Stewart insisted his concurrence would be only a few paragraphs, but he would not have drafts ready for at least a week more.¹⁵⁰ A week later, Stewart again wrote Brennan to tell him Marshall, instead, would respond to Harlan.¹⁵¹ Brennan saw "no reason" why Marshall should respond, and Marshall did not give him any.¹⁵²

Several days passed without an opinion from Marshall's chambers. Brennan was growing impatient. Warren, however, would not come down on one side or the other until Stewart and Marshall circulated their thoughts. Stewart and Marshall were in no hurry—Marshall told his clerks he was "not [actually] planning to write a concurrence."¹⁵³ It can be inferred that Marshall and Stewart were instead attempting to stall deciding Shapiro until after Congress voted to raise salaries for the justices on March 1.¹⁵⁴ The worry was that Congress would be dismayed if Shapiro increased the burden on states to pay for indigent assistance. If Marshall and Stewart delayed Shapiro, Congress could not cast a retaliatory vote against the pending judicial salary bump.¹⁵⁵

On March 1, 1969, with Brennan growing impatient and Warren silent, Congress put into effect the highest salaries for federal judges since at least 1913.¹⁵⁶ The salary for Associate Justices increased from $39,500 to $60,000.¹⁵⁷ Chief Justice Warren saw an increase from $40,000 to $62,500.¹⁵⁸ Five days after the salaries were announced, Stewart, not Marshall, circulated a brief concurrence. He asserted the Court "simply recognize[d], as it must, an established constitutional right, and [gave] to that right no less protection than the Constitution itself demands."¹⁵⁹ Surely, two justices delaying a case concerning access to the "necessities of life" to ensure an increase of their own salaries was not an irony missed on Brennan. With each associate justice having voiced his opinion, it was time to hear from Warren.

Warren's Response

In 1967, Warren, along with four others, voted in Conference to reverse the lower courts and find the Connecticut statute constitutional.¹⁶⁰ In 1968, Warren voted again to reverse—but only two other justices agreed with him.¹⁶¹ Brennan did not expect Warren to vote in the majority: he believed Warren favored residency requirements because they "enabled a State to give more liberal benefits without fear of being swamped by indigent immigrants."¹⁶² As the former governor and attorney general of California, Warren had personal experience with the impact that lack of waiting requirements could have on a state. The California state disability program had "been destroyed" by the legislature after too many persons who were disabled "flock[ed] in[to California] just to grab more generous [welfare] benefits."¹⁶³ To fix the issue, California "imposed a five-year

Having served as governor of California from 1943 to 1953, Chief Justice Warren knew the impact that lack of waiting requirements could have on a state. He did not join Brennan's opinion because he was more concerned about protecting citizens from out of staters moving to California for its generous welfare benefits than about the right to travel.

residency requirement to be eligible for [welfare] benefits."¹⁶⁴ Warren thought a one-year residency requirement in place of a five-year requirement "was an absolutely fair resolution," which aligned with his reputation for feeling a "responsibility … to the citizens and the voters of the State."¹⁶⁵ Warren also likely viewed Edwards as another example of states trying to prevent "freeloaders" from coming into California specifically, much more than he viewed it as a case concerning the right to travel.

In contrast, Brennan categorically prohibited Congress's ability to enact waiting period requirements.¹⁶⁶ To otherwise permit such an exercise of congressional power, he claimed, would allow them to legislate outside of their constitutionally permitted authority.¹⁶⁷ The paragraph, located on page 22, was identical to the school segregation analogy from Fortas's dissent in the 1967 Term, which had led Brennan to switch his vote and affirm.¹⁶⁸ It read:

Congress may not authorize the States to violate the Equal Protection Clause. Doubtless, Congress could induce wider state participation in school construction if it authorized the use of joint funds for the building of segregated schools. But could it seriously be contended that Congress would be constitutionally justified in such authorization by the need to secure state cooperation? The need, real or apparent, to enlist state cooperation in a joint federal-state program does not validate congressional legislation which authorizes the States to violate the Equal Protection Clause.¹⁶⁹

To Brennan's surprise, Warren proposed a compromise: if Brennan removed this paragraph, Warren, in return, would concur for the state cases and dissent only for the District of Columbia case.¹⁷⁰ A mandatory waiting period in the District, he reasoned, wouldn't raise congressional power issues under the Commerce Clause because Congress only legislated in the District to put it "on the same footing as the States which had imposed waiting periods."¹⁷¹

Brennan did not understand why Warren would concur—such a stance did not seem to square with Warren's experiences—nor did he understand why Warren believed removing this paragraph would "leave open the question of congressional power."¹⁷² Brennan figured he could avoid this "agreement with the Chief if enough of the Justices who had voted with him complained about the omission of the [contested] paragraph."¹⁷³ Accordingly, Brennan did not flat-out refuse Warren's request, as he had done earlier in the Term with Stewart. Given Warren's announced retirement, Brennan may have wanted to refrain from burning a twelve-year-old bridge. Further, if publicizing the compromise to the other affirming justices could get them to back up his opinion, the majority would present as a solid front to the rest of the Court and potentially convince them, too, of the legal soundness of his arguments.

On March 25, 1969, Warren circulated a concurrence stating the majority opinion "[left] open the question whether Congress could constitutionally impose a residence requirement on the States."¹⁷⁴ Brennan circulated a version of his opinion omitting the page 22 paragraph, and wrote to his majority—Douglas, Stewart, White, Fortas, and Marshall—to explain "the deletion of the paragraph at page 22."¹⁷⁵ Brennan implied the deletion meant Warren might concur rather than dissent because the Chief Justice believed the omission meant the question of congressional power "remained open."¹⁷⁶ Brennan personally "doubt[ed] that deletion would do that" but was willing to omit the paragraph because it would produce a "7–2 [holding] … and, in this area, I think that is desirable."¹⁷⁷

The joining justices reacted as Brennan expected they would. The next day, on March 26, Fortas responded that the majority opinion, in his view, "does not leave open the question of Congressional power" and that the chief justice's concurrence put everything in a state of "utter confusion."¹⁷⁸ Fortas believed the majority still made clear that "Congress could not authorize a waiting period requirement," although he would "prefer reinstating the deleted material."¹⁷⁹ Omission or not, he said, Fortas was "with [Brennan] either way."¹⁸⁰

Brennan was "not altogether displeased" with Fortas's note.¹⁸¹ Such a response was anticipated, if not welcomed, by Brennan. The other joining justices soon followed suit: Stewart and White in the majority, as well as Harlan in the dissent, believed Brennan's opinion settled the issue of congressional power. "The power of Congress to impose nationwide residence requirements is therefore not an open one but has been foreclosed," submitted Douglas.¹⁸²

On March 28, Douglas, with Brennan's approval, circulated a brief concurrence about the deleted paragraph.¹⁸³ Douglas read the majority opinion "differently" than Warren because, to Douglas, the majority settled the congressional power issue.¹⁸⁴ Stewart, White, Fortas, and Marshall–-all in the majority—planned to join Douglas's concurrence, therefore undermining Warren's concurrence.¹⁸⁵ As a result, Brennan "put the controversial paragraph back in the opinion," Douglas withdrew his concurrence, and Warren went back to the drawing board.¹⁸⁶

On April 3, Warren circulated his dissent for the Welfare Cases, suggesting they all be reversed as he originally did in 1967.¹⁸⁷ But unlike the prior Term, Warren cited Street v. New York,¹⁸⁸ a case pending before the Court, to support his argument.¹⁸⁹ The Welfare Cases announcement would, yet again, be delayed—they could not, as a matter of procedure, be announced until Street was decided. Brennan privately asked Warren to remove his "hardly necessary" Street reference.¹⁹⁰ The other justices asked the same at Conference.¹⁹¹ Warren refused them all.¹⁹²

Nearly three weeks later, on April 21, the Welfare Cases and Street came down together. With a 6–3 final vote to affirm, Brennan, Douglas, Fortas, Marshall, Stewart, and White held that absent a compelling state interest, state laws infringing on the right of interstate travel impermissibly classify in violation of the Equal Protection Clause of the Fourteenth Amendment.

Conclusion

One can only imagine Warren's reaction to the decision. But by then the Chief Justice was counting the days until he retired, having promised President Richard Nixon he would stay to the end of the Term and until his successor, Warren Burger, was confirmed. On the Burger Court, Brennan would continue his agenda of using the Fourteenth Amendment to protect the poor. For example, in 1970, he wrote the majority opinion in Goldberg v. Kelly¹⁹³ invoking the Due Process Clause to prevent states from terminating welfare benefits without a fair notice and a hearing. However, as the number of Nixon-nominated justices increased, the Court scaled back Brennan's efforts to use the Fourteenth Amendment to prevent wealth-based discrimination. In 1973, Justice Harry Blackmun, a Nixon nominee, authored the majority opinion in United States v. Kras,¹⁹⁴ which held that the Due Process Clause does not require a federal district court to waive a bankruptcy filing fee for indigent individuals. That same year, in San Antonio Independent School District v. Rodriguez,¹⁹⁵ the Court issued a 5–4 decision that San Antonio Independent School District's financing system, which was based on local property taxes, was not a violation of the Fourteenth Amendment's Equal Protection Clause. In hindsight, Shapiro v. Thompson represented the apex of Brennan's efforts to use the Fourteenth Amendment to protect the poor—but only by breaking ranks with his friend and ally Earl Warren.