At least five sitting Supreme Court justices aided one way or another in the breach of court secrecy that enabled authors Bob Woodward and Scott Armstrong to write "The Brethren," a new and much-debated book about the Court's inner workings.
According to the Authors, five justices assisted them in obtaining access to the hundreds of former law clerks interviewed for the book.
These justices encouraged the clerks to talk or provided lists of names of clerks. The authors said they knew of no justice who in any way forbade his clerks to talk.
In addition, the book says several justices assisted the authors directly.
The authors would not name the justices who helped. But the fact that most did casts a new light on the private but vehement complaints of many justices about the breach of their traditional confidentially.
It may also refocus some of the outrage that developed last week among legal scholars and lawyers concerning what many regarded as an unforgivable betrayal by the former clerks.
The book describes the first seven years of the Burger Court, from 1969 to 1976. It provides intimate details of case after case decided by the justices, of intense internal brokering and politicking that accompanied many controversial decisions, and of periodic personal feuds that affected the court's work.
It also portrays Chief Justice Warren E. Burger as an isolated and unpopular leader, unable to muster the respect of his colleagues because of shortcomings and manipulations.
Burger, the authors wrote, did not cooperate in any way in the preparation of the book.
The fact, combined with knowledge of the role played in the book's preparation by other justices, may feed a theory circulating among some who are supportive of Burger: That the book is in part the product of a "palace revolt" at the court.
In an exceptional display of unanimity last week, not a single justice publicly exhibited any interest in the book. But all are said to be reading it, and privately they are discussing it.
Some were said to be quietly but "obviously hurt," in the words of one justice. Others were voicing private denials to colleagues and questioning the absence of attributions in the book and the absence of footnotes.
Overall, insisted one justice, the Supreme Court was "not all that upset" by the book's contents though members were disturbed by the "breach of secrecy." Some are said to feel that their former, clerks "got conned" by the two reporters into talking.
Outside the court, among lawyers and court-watchers, attention has focused on the clerks. "I must say that I'm distressed by the obviously very private utterances of justices that were revealed by law clerks," said Wade McCree, U.S. solicitor general and former circuit court judge. " would be shocked if any of my clerks" were to make such revelations.
It's very bad," said Eugene Gressman, law professor at the University of North Carolina, former Supreme Court clerk and co-author of the most-used book on Supreme Court procedure. "Justices need to have an intimate relationship with their law clerks and it needs to be confidential. If you can't trust them, you can't use them."
As to the book's contents, Gressman and other scholars who have read all or part said they found many surprises but nothing that shocked them.
However, a University of Michigan law professor, Yale Kamisar, said the book would make it "all the more difficult for me to teach constitutional law." Student's already tend to believe that the court bases many controversial decisions on "gut feeling", he said. "And I'm always trying to tell them that the process is analytical.
The book makes it harder for me to say that."
Nevertheless, Kamisar said of the authors, "even if everything they say in the book is true, they have taken some very atypical cases, often difficult ones without precedents. People are likely to draw conclusions about the overall work of the court that are very misleading."