The favorite subject of conversation among aficionados of the Supreme Court these days is how much damage "The Brethren" will do to the court. It's a good question, because neither the court nor public preception of it is likely to be the same, at least for a while, now that the tales gathered by Bob Woodward and Scott Armstrong are in print.
However bad the personal relationships among the current justices have been in recent years and however poorly their decision-making process has worked, they are bound to become worse. This is not because "The Brethren" pieces for the first time the secrecy surrounding the court's internal affairs. Other books have done that. But this is the first book to explore the relationships among so many justices who must continue to work together.
Some justices cannot avoid being dismayed and dishartened by what other justices are said to have said about their work or their personalities. While the lack of documentation in the book means every justice can deny almost everything he is said to have said about another, the cumulative impact will almost certainly undermine the mutual trust that is necessary in any group that makes collective decisions.
Fear of interfering with that decision-making process has led other authors to publish less than they knew. Prof. J. Woodford Howard, for instance, suppressed from his biography of Justice Frank Murphy much information about the inside activities of Justices Hugo Black and Felix Frankfurter because they were still active when he wrote. And Howard had a great deal of information. Justice Murphy's notes included detailed accounts of what went on in the court's conferences as well as cryptic but decipherable messages about what was said in chambers.
The authors of "The Brethren" seem to believe either that this fear of interference is misguided (i.e., all decision-making in public institutions should be open to public view) or that whatever damage such interference does is offset by an increase in public understanding of how the court operates. The latter might well be true if "The Brethren" were a serious study of judicial decision-making. But the story it tells is no more complete, although the names and the details are more contemporary, that the stories told in Howard's biography of Murphy and Alpheus T. Mason's biography of Harlan F. Stone.
While neither of those earlier books did any perceptible damage to the court's institutional arrangements, there is a critical difference. The biographies came primarily from papers in the files of those justices when they died. "The Brethren" appears to reply heavily on the justices' law clerks.
The court could seriously damage itself if the justices react to this by abandoning the practice of hiring as clerks recent law school graduates who spend only a year or two on the job. If they were to hire permanent clerks, the justices could exercise far more control over the kind of "leaks" on which "The Brethren" is based. But by doing that, they would insulate themselves even more than they already are from the real world. The temporary clerks provide them with a constantly renewed stream of thought from outside.
The clerks, of course, are being vociferously criticized by those who believe the sort of information contained in "The Brethern" should never be published. But it seems to me that such a hemorrhaging of information could not have occurred without at least the tacit consent of some of the justices themselves. If that is so, either the justices were misled as to what the book would be or they decided that working relationships within the court were already so bad that they could not get worse.
As far as public perception of the court is concerned, "The Brethren" continues the process, under way for decades, of destroying the myth of judicial infallibility. No longer does any serious student of the law or political science believe that justices are anything but ordinary mortals who have been given extraordinary power. The court cannot be harmed by letting this book's mass audience share this understanding -- if, indeed, it doesn't already.
As an institution, the court survives this expose' of its internal affairs well. Despite having conducted the most extensive investigation ever into how the court actually operates, the authors turned up nothing that smacks of corrulption, outside influence for political favoritism. In this day of cynicism about the integrity of public officials and institutions, that should bolster the court's reputation. If it does, the court will be helped more in the long run than it is hurt in the short run.
Unfortunately, this key finding is masked by the barrage of publicity that may well lead many readers to believe that the way members of the current court reach their decisions is new, different and, therefore, suspect. Therein lies the real danger to the court that the book creates.