THE CURTAIN OF SECRECY with which the publisher has sought to shroud this fascinating book about the inner working of the Supreme Court has created an expectation that the authors were about to scatter before the public an expose that would rival, though probably not excel, that of All the President's Men. Alas, this book will disappoint both those who salaciously awaited juicy scandal and those who piously anticipated venting righteous indignation at two shakers of holy myth.
Essentially the Brethren is a term-by-term narrative of the Supreme Court's internal decision-making processes from 1969-76, the first seven years of Warren E. Burger's chief justiceship. The authors, Bob Woodward and Scott Armstrong, wisely chose to concentrate on a few of more significant rulings of each term and so to provide rich, at times lavish, descriptive material. Always the pace is swift, with details that rivet the attention and sometimes test the credulity of anyone interested in the Supreme Court.
The narrative itself provides pearls that lecturers, professors and journalists will soon be scattering to their audiences. The accounts of the arguments, negotiations and bargainings within the Court that preceded such important rulings as those on abortion, the death penalty and Nixon's tapes are exciting historical vignettes as well as instructive illustrations of relations among members of a multi-judge tribunal.
Despite flaws, The Brethren will become, when the dust of controversy has settled on its jacket, a much used source for the Court's recent history. It is true, nonetheless, that in places the book is simply in bad taste -- as, for example, when the authors mention by name a justice's wife who has a drinking problem, or reveal that, when he was recovering from an illness, one justice was incontinent. Such details do nothing to enhance either understanding of the Court or the authors' reputations for civility. At other places, the book uses material of doubtful authenticity -- as, for example, a private conversation between Chief Justice and Mrs. Burger. If that account is accurate and came to the authors firsthand, there was far more bugging in Washington during Nixon's years than even All the President's Men led us to suspect, for the authors say that the chief justice refused to help their research in any way. There are, however, far more serious problems with the sources of The Brethren , a point to which I shall return.
Several theses hold the book's chronology together. First, the authors argue -- and their own evidence as well as that of the published record places them on firm ground -- that the Court has been under the control of the justices from the "center": the pragmatic moderates, Lewis F. Powell, Potter Stewart, Byron R. White and perhaps now John Paul Stevens. No more than the liberal coalition of William J. Brennan, Jr., Thurgood Marshall and, until 1975, William O. Douglas, have the ultra-conservative Chief Justice Burger and William H. Rehnquist been able to set the Court's constitutional course.
Their second thesis is more acidly etched. While most of the justices get at least some sharp criticism, one emerges as a clear villain. With only mild overstatement, the book's second thesis could read: During 1969-76 the Court was composed, on the one hand, of eight hard-working associate justices of varying degrees of intelligence, competence, energy and courage; and, on the other hand, of one churlish, devious and not very bright chief justice, whose major accomplishments have been to confuse constitutional issues, usurp his brothers' prerogatives, switch his votes to retain his authority to assign the task of writing the opinion of the Court, and earn the intellectual contempt of the other justices, their clerks and some of his own young assistants.
The first half of this proposition is unquestionably correct. The second half is more difficult to substantiate. The chief justice has had real difficulties, intellectual and personal, with some colleagues and aides, as the television performance last March of several former clerks so shabbily testified. Moreover, Burger's penchant for secrecy inevitably creates or increases suspicions among those who disagree with him on substantive issues. Nevertheless, the portrait of Burger as ogre is probably overdrawn; and to their credit, the authors occasionally provide evidence that the chief can be thoughtful and kind.
Like William Howard Taft, Burger has been more effective working outside the Court for judicial reform than within the Court as intellectual leader. Unlike Taft, Burger has not been able to lead his colleagues by forming a close alliance with a powerful legal mind. Taft's affinity for Justice Willis Van Devanter -- "my chancellor," Taft called him -- provided the intellectual support that Taft so sorely needed. Burger's most obvious functional equivalent for Van Devanter should be Rehnquist, who in sheer intelligence probably exceeds all recent justices except Douglas. But ideological propinquity has failed to provide the personal cohesion that such a relationship requires.
The Brethren also proposes a third thesis: The Supreme Court operates not only on principled persuasion but also a negotiation, even bargaining. That statement is undoubtedly true now, as it was in the beginning and perhaps ever shall be. Justice William Johnson explained it to Thomas Jefferson, and in his judicial opinions wrote about negotiations within the 19th-century Marshall court. Time and again scholars such as Alpheus T. Mason, Charles Fairman, Alexander Bickel and J. Woodford Howard have documented that process of compromise and accommodation during later periods.
Still, I sense -- though I may be wrong -- that Woodward and Armstrong were both surprised to learn about such negotiations and feel that it is not quite morally correct for justices to maneuver and convince one another by arguments other than those base solely on jurisprudential principles. I sense a wish that each justice vote and write as his -- and one hopes in the future, her -- principles dictate, leaving bargaining to other governmental processes. Such wishfulness is understable. In a world of half-truth, no truth, small courage and great evil, where else but to the Supreme Court can one look for a bulwark of truth and justice? Indeed, the reaction that I encountered 15 years ago, when I published a book that focused on bargaining among the brethren, convinced me that even the justices feel a tinge of guilt at their traditional processes of negotiation and compromise. (One justice reprimanded me for using the word "bargaining." It was, he said, something he never did. When I reminded him of a great case, in which he has suppressed his dissent in return for changes in the majority opinion and the expediting of a decision in a related case, he stared at me stonily: "Sometimes, I have to negotiate. I never bargain.")
There may be times when the issues are so momentous that a justice cannot compromise, when he should rise and say, "Here I stand." But, if every justice took such an attitude at each conference, we would probably have at least five, and possibly nine, opinions justifying or attacking each decision. The result would multiply confusion in the law, a field already burdened with an overproduction of that commodity. Other alternatives to the current practice of negotiation and compromise, which leads to a single opinion for a majority of the Court, are equally improbable and unattractive: one justice or set of justices so intellectually overpowering as to march the Court in lockstep, or a group of five or more justices, so close in outlook that they simultaneously and identically interpret the Constitution. There is no easy solution here. Accepting the Court's traditional practice, Brandeis remarked that "the great difficulty" was when and what concession to make."
There are, as I indicated earlier, grave problems with the sources of The Brethren . The nature of much of the authors' research -- interviews "on background" with many law clerks, perhaps other journalists and even with some justices -- prevented use of citations. Woodward and Armstrong, moreover, sometimes reprint drafts of opinion or memoranda designed only for circulation within the court. To provide even the name of the justice from whose files these documents were removed would cause severe difficulties for the source. The scholar, of course, longs to see the full documents and to hear the tapes of the interviews, not only to check the accuracy of the authors' work but also to test other ideas. That such a desire cannot be fulfilled is unfortunate, but does not of itself negate the usefulness of such research. Investigators must take the evidence that is available.
Nevertheless, an outsider who wants to give full credence to The Brethren must apply certain tests. First: Is the authors' general picture of the Court plausible? The answer is a decided yes. One may dispute particular interpretations or even doubt that certain details are fully accurate -- and I have quite a few reservations on both counts -- but the patterns of touch negotitation that Woodward and Armstrong describe largely fit what we know from published sources about the Court, both in other periods and under Burger.
But a second test asks: Are there few, if any, errors in the material that we can check against the public record? If there are fewm then we can have considerable confidence in the probity of what we cannot verify. Woodward and Armstrong do far less well here. Even a cursory examination reveals that The Brethren abounds in small errors on elementary points. None is crucial to the authors' central thesis, but taken together they inevitably cast some doubt on the reliability of evidence that cannot be checked.
For instance, Douglas spoke for a majority of the Court in the Connecticut Birth Control case, not for a plurality as the authors assert. In Trop v. Dulles , which dealt with loss of citizenship, Warren wrote for a plurality of the Court, not for a majority -- there was thus no "ruling" on the "cruel and unusual punishment." Ex parte Quirin involved a review of the court martial of Nazi saboteurs who landed from submarines during World War II, not "eight United States residents of German heritage." The Supreme Court did not use the 14th amendement to strike down New Deal legislation, since the amendment restricts almost solely the states. More than 30 years ago Congress abolished the title "circuit court of appeals," though it is much used in this book. The district court's order in the Detroit busing case did, in fact, go much beyond that in the busing case from Charlotte -- the order in Detroit cut across 54 school districts, only one of which was accused of racial segregation, while the order in Charlotte affected only one district, and that one had admitted deliberately segregating students by race.
Furthermore, the authors inaccurately summarize the Ninth amendment, nismane the Yale Law Journal and the law school of the University of California at Berkeley, grossly oversimplify what the justices said in the Bakke case (though the Court surely bears some responsibility there), and err in saying that the Court must take the facts of a case as found by lower tribunals. On occasion, the justices find the facts for themselves.
I do not mean to carp at minor faults. My only point is that if the authors had more carefully used published sources, we could have stronger faith in their use of sources we cannot verify. I would add that had the authors delved more into the historic record, they would have deepened their understanding of the Court -- and ours. For example, knowing that other chief justices -- John Mashall and Charles Evans Hughes provide the most obvious instances -- had taken advantage of their office to maneuver themselves into writing opinions or assigning that task to particular justices, might have caused Woodward and Armstrong to interpret somewhat differently Burger's alleged shuffling on his votes.
There are, moreover, two other significant problems with the authors' use of their sources. There is no such thing as "free information," any more than there is a free lunch. Probably because their informants were mostly young law clerks -- recent graduates of law schools who serve a judge for a year or two -- Woodward and Armstrong tend to see the Court's operations from the clerks' perspective. Placing the clerks at center stage gives most of them a far more important role than they usually play. Twenty-two years ago, after clerking for Justice Robert H. Jackson, a conservative young attorney named William H. Rehnquist wrote an angry article about the dangerously liberal influence on justices of clerks fresh out of law school. Many years later, after a Princeton student confessed to Justice Rehnquist that he had not read the article, the justice responded that the student had not missed much. "Like most young men I had an exaggerated opinion of my own importance."
Seeing the struggle through the clerks' eyes also leads the authors to exaggerate the personal animosity that the brethren feel toward each other and the effects of any such ill feelings. The bitterness of serious intellectual differences does not inevitably carry over to personal relations. And when it does carry over, it is largely the result, not the cause, of disputes about law and public policy.
One can easily discount the book's overemphasis on the roles of clerks and its stress on personal rancor within the Court. But the interviews may have exacted another heavy cost, one that may be paid by the Court and future generations of clerks: a marked deterioration in the relationship of special trust that once existed between a justice and his clerks. It may be ethical for a journalist to ask any question (though it is certainly not ethical to misrepresent the purposes of the research). For a clerk to respond -- and worse, as may have happened here, to provide documents about confidential relationships -- raises serious doubts about the clerk's moral integrity and his or her fitness to handle later clients' personal affairs.
Judges are public servants and in their public lives enjoy no privilege to privacy analogous to the constitutional right to private citizens. Yet unless there is a question of crime or threat to national safety, no subordinate, I believe, has a right to violate a relationship of special confidence that he or she shares with a superior. And the relationship between a justice and a clerk is very special: The young clerk is entrusted with informatin that is kept not only from the public but from other justices and all other public officials, including the president.
I wish the U.S. Supreme Court had adopted the Swiss custom of debating and deciding cases in public sessions. But the justices have opted for closed sessions and, when clerks competed for and accepted their positions, they knew that the Court had chosen confidential procedures. It is a betrayal of basis ethics for a clerk to accept the great satisfaction, high professional prestige and not trivial financial rewards bestowed by that close relationship, and then violate the relationship's responsibility of confidence. Moral judgements aside, many clerks talked and some possbly purloined documents to help these two able journalists write their book. Perhaps one or more justices also cooperated; perhaps it was one of them who provided some of the documents. That sort of "candor" raises other ethical problems of major import, for instance that of the justices' duty of confidentiality to one another. It is also possible, of course, that the authors secured the cooperation of third parties to raise questions with members of the Court and pass on responses. In any event, Woodward and Armstrong obtained an amazing amount of assistance from persons within the Court or very close to people within the Court. Yet inevitably much of the "blame" for such a deluge will fall on the clerks: It may even lead to the replacement of these bright young men and women by older and more experienced attorneys or, as is done in Germany, Italy and Japan, by judges.
I find the most significant result of all this labor to be what the book does not reveal: any evidence of scandal or wrongdoing. There is some evidence of wrong decisions, wrongheadedness, weakness, arrogance, stubborness and deviousness. But even Abe Fortas, who certainly exercised poor judgement in accepting a salary from a charitable foundation established by a shady financier and even poorer judgment in trying to conceal that connection, did not sit when the financier's case came before the Court.
On the other side, there is evidence of much courage, skill, humility and plain hard work among the brethren. The struggles within the Court are real and, occurring among men who are fired by passion as well as moved by reason, those struggles are also intense. It is, moreover, in the public interest that the justices deeply care about their work and its effeects on the nation. Seldom is the Court unanimous on what the constitutional system requires. But there is not a scintilla of evidence here of justice for sale or of crime, or a threat to the constitutional structure. The Brethren shows nine human beings -- not saints -- who despite personal foibles, faults, failings and opposing political visions, daily devote their minds and souls to the arduous task of making the Supreme Court function to preserve constitutional democracy.