"The Brethren," a new investigative book about the internal workings of the Supreme Court, portrays Warren E. Burger as a chief justice whose shortcomings as a legal scholar and efforts to manipulate his colleagues have alienated them and left the court without a true leader.
The book, by Bob Woodward and Scott Armstrong of The Washington Post, is based on an unprecedneted accumulation of secret court materials: notes from justices' private conferences, draft opinions, internal memoranda and interviews with several justices and more than 170 former law clerks. None of the sources is named.
In addition, the authors obtained the private journal of Justice William J. Brennan Jr., who used his clerks to keep detailed accounts of what was going on in other justices' chambers.
Distribution of the book will be preceded by a blast of publicity. Thirty-eight newspapers and Newsweek magazine, which is expected to feature "The Brethren" on its cover, will publish excerpts of it. The CBS television news show, "60 Minutes," plans a "Brethren" segment on tonight's program. Discusions about movie rights are already under way and the Book-of-the-Month Club has made it its main selection for December.
The authors received a $350,000 advance for the work. Wordward, now assistant managing editor of The Washington Post for metropolitan coverage, collaborated with Carl Bernstein on the Watergate story. Armstrong, a Post investigative reporter, worked with Woodward and Bernstein in writing "The Final Days," the best-seller about the end of the Nixon administration.
"The Brethren" says Brennan privately called the chief justice a "dummy." Justice Lewis F. Powell Jr., stunned by the inadequacy of a Burger draft opinio, reportedly said that, "If an associate in my law firm had done this, I'd fire him."
Justice Potter Stewart privately summed up his colleagues rejection of Burger's leadership this way: "On ocean liners, they used to have two captains. One for show, to take the women to dinner. The other to pilot the ship safely. The chief is the show captain.
"All we need is a real captain."
Debate about the impact of the book's breach of traditional secrecy has already begun, though its content is not widely known. Many justices and court watchers fear it could poison relationships among justices and their law clerks and, at the extreme, between the court and the American people.
"When you start trying to reach down into the thought processes of Supreme Court justices," said Leon Janofsky, president of the Amreican Bar Association, "that's an utterly intolerable situation. I think it may undermine the ability of the court to accomplish its responsibility."
Others, including many lawyers, disagree and believe the court should be subject to the same scrutiny as other institutions and that such scrutiny can be survived.
The book covers the first seven years of the Burger Court, 1969 to 1976. The period marked the end of the liberal Warren Court era and efforts by Presidents Nixon and Ford to create a new conservative Burger Court.
The court did turn more conservative, but it never became the Burger Court, according to the book, because of the chief justice's failure to win the respect of his colleagues. Instead, during the seven terms covered by the book, control began to pass on to a coalition of justices at the center.
The book does reinforce one image considered critical to the court's authority in this country. The authors found no instances in which direct pressure from the outside influenced the justices' work. They were insulated. p
The authors' view of the inside of the court, however, challenges numberous civics class suppositions; that the court always bases its rulings solely on the law and Constitution and that the justices are uninfluenced by their own personal beliefs: that the court never consicously takes on the functions of a legislature; that it always reaches opinions through a calm and orderly deliberation, without intense politicking, brokering, combat and comprise; and that the justices of the Supreme Court are somehow above the normal shortcomings of human behavior. The book discloses how:
In a saddening ploy to become a "tenth justice" after his resignation, an ailing William O. Douglas tried to participate in court deliberations and issue dissents even after his replacement, Justice John Paul Stevens, was seated. "No," Brennan finally told Douglas. "John has taken your place." "Not you too," replied Douglas.
In 1973, the court came within one vote of judicially imposing the Equal Rights Amendment. Stewart balked, the book says, in part because he felt "certain the ERA would be ratified."
The justices originally did not want to take the Muhammad Ali draft evasion case in 1970 at all, the book says, but did so in part because he was so prominent. When they got the case the vote at first was 5 to 3 to send Ali to jail, Justice Thurgood Marshall excusing himself. But clerks to Justice John Marshall Harlan convinced him to read a Black Muslim text which in turn changed his mind about the Ali case, leaving the vote a 4 to 4 tie. Then, though the justices could find no significant constitutional reason to save Ali, they decided to "cite technical errors" to keep him out of jail. "Ali," the book says, "did not know how close he had come to going to jail."
In 1972, Brennan refused to become a swing vote to overturn a man's jail sentence even though Brennan acknowledged that the defendant, Slick Moore, was convicted unfairly. His motive, the book says he told clerks, was the appeasement of Justice Harry A. Blackmun, who Brennan hoped to brings into line on unrelated abortion and obscenity cases.
Justice Douglas tried on different occasions to block court actions by threatening to issue embarassing and revealing dissents. On one of those occasions, his ploy worked.
The Burger problem surfaced early in his tenure during an encounter with the late Justice Harlan, a court legend. Burger wanted to overturn a Georgia court decision by simply asserting that it was "wrong," that the state court has "misapplied the Georgia law," the book says.
"Politely, Harlan asked on what grounds he based his dicision. What part of the Constitution did Burger intend to cite to justify such a ruling?
"Burger said he preferred to avoid specifying any grounds.
"A federal court, Harlan reminded the chief, even the Supreme Court, couldn't simply tell a court how to interpret its laws without providing a constitutional reason.
"'We are the Supreme Court," Burger reportedly said. "And we can do what we want.'"
A lot of the criticism of Burger came from those regarded as ideological opposites, like Douglas and Brennan. But the others, those closer to Burger's conservativism, seemed unwilling to rescure him and often joined in against him.
In two crucial cases, other justices consciously but circuitously stripped control from Burger, the book says.
In Swann vs Charlotte-Mecklenburg Board of Education, the issue was busing and how far federal courts could go in achieving racial balance in the schools. It was agreed that the lower court judge should be upheld and the opinion should be unanimous.
But Burger's draft opinion was viewed as "disorganized and stupid," in one justice's words and as a "retreat" from busing, rather than an endorsement. So piece by piece, the others chipped away at the Burger opinion until it reflected a more probusing view -- even though the chief remained the author.
"When the opinion came out," the book says, the newspapers "said the court backed busing. Burger couldn't understand it. He told friends he considered his opinion antibusing."
In the Nixon tapes case, which Burger assigned to himself, other justices judged his first drafts "awful" and "an embarrassment to the court." Justices Stewart and Powell divided up the sections among the other justices and set out to force them one at a time on Burger.
A Capitol Hill lunch where justices and clerks devised the plan was eventually dubbed "the conspiracy lunch," by some.
The sections written by the other justices ultimately formed Burger's unanimous opinion in that historic case.
According to the book, much of the worry about Burger stemmed from what others saw as his efforts to manipulate the court. In one major 1969 antitrust case, Burger tried to change a time-honored court rule to obtain his desired result.
The effort was blocked, in part, by a threat from Justice Douglas, now retired, to expose Burger's action in a public dissent.
Many justices were also upset with the chief's opinion assignment techniques. Under Supreme Court procedure, the chief justice determines who will write an opinion if he is part of the majority. Otherwise, the assignment is made by the senior associate justice in the majority.The power to assign who shapes an opinion is a powerful political tool at the court.
Burger would hold onto that power, according to the book, by switching his vote or reserving his vote until he saw the directions so that he would wind up in the majority. On one occasion, the book says, he changed sides five times on the same case.
The problem boiled over during consideration of a landmark abortion case and an important First Amendment case during the 1971 term.
Douglas, the book reports, was so "flabbergasted" by Burger's assignments that he dispatched an angry memo to the chief and ultimately circulated a proposed dissent to his colleagues which he threatened to make public: "When a chief justice tries to bend the court to his will by manipulating assignments," Douglas wrote, "the integrity of the institution is imperiled."
This prospect of having dirty linen laundered in public horrified Douglas' colleagues and he never issued the dissent.