Justice Brennan's clerk called to say that they might include the substance of your proposed footnote in their concurrence. They find themselves in somewhat of a hard place because apparently Justice Stewart had indicated to them that he might well join the concurrence. And as the circulation indicates, Stewart is opposed to the footnote. In any event, the concurrence from Brennan is to be expected early next week.
Clerk Memo, Codd V. Velger, 429 U.S. 624 (1977). Box 367, Harry A. Blackmun Papers, Manuscript Division, Library of Congress, Washington, D.C.