It has taken this long-ago Supreme Court law clerk a good while to reach this point, but it seems to me it's about time to recognize that Bob Woodward and Scott Armstrong rendered a very real public service in "The Brethren" by detailing an unmistakable picture of the Supreme Court as a political rather than a legal institution.
Sure, there is a serious question whether the law clerks should have given interviews to Woodward and Armstrong on confidential matters; and in earlier times, when each justice had only one clerk, I doubt this could have happened. But now there are four clerks per justice (the chief justice has too many to count) and the father-son relationship has been transformed into something like ordinary office routine without the restraints on leaks that went with the earlier intimacy.
Actually, law-clerk disclosures were hardly unknown even in the pre-"Brethren" period. For example, in July 1972, when the court was considering Sen. George McGovern's challenge to the Democratic Credentials Committee's action in taking away a hundred or so of his California delegates, McGovern's lawyers were getting regular reports from the then law clerks on how the various justices were viewing their case.
Sure, too, Woodward and Armstrong most likely persuaded the law clerks to talk as a matter of "public service" or even "public duty," and now they are making a bundle for themselves. But since when has the popularity of a book been considered evidence that there is something wrong with it?
I know the book will, to some degree at least, lessen public confidence in the court as an institution in this already low-confidence-in-government period. But if mistakes in the book are limited and the broad picture it paints of the court as a political body is accurate (as I believe), isn't our democratic government stronger rather than weaker through greater public understanding of the true nature of the court? Truth-in-government would seem as fundamentally sound as truth-in-packaging or Truth-in-lending.
Precisely because the important issues that come before the court are broad matters of public morality and political statesmanship rather than narrow questions of law, it was inevitable that the justices and their law clerks would turn out as activists fighting for their own views on public questions, just as do their legislative counterparts. "The Brethren's" picture of members of the court and their aides engaged in no-holds-barred struggles to win the cases for their own ideologies could hardly have been otherwise, for the Supreme Court is less a legal institution than an additional political branch of government.
Take the various race issues that come before the court. What the court decides is whether segregation and discrimination constitute a violation of the "equal protection of the laws" guaranteed by the Constitution. Interpreting those five little words is hardly a question of law in the ordinary sense. It is a matter of the highest public policy based on history, custom and current public morality. That may explain why the court could decide the constitutionality of segregation one way in 1896 and the opposite way in 1954. Similarly, the issues of busing for racial integration and of preferences for blacks in jobs or entry to medical or law schools are hardly resolved by reference to those five little words, and the justices quite naturally apply their own ideologies.
Take the question whether laws against abortion are a denial of "liberty" without "due process of law." Here again, legal principles taught in law schools give way to each justice's ideology, and it is no wonder in so charged an area that the chief justice fought for his anti-abortion views with the full power of his high office before, for appearance's sake, changing over to the majority view.
Take the question whether capital punishment is "cruel and unusual punishment" in violation of the Constitution. Once more, legal principles yield to history, morality, statesmanship and heaven knows what else in resolving the issue of the constitutionality of the state's killing a person in punishment for crime.
The Supreme Court is part of our nation's political process, and the sooner this is accepted as inevitable the better. What Woodward and Armstrong have done is to lay to rest, once and for all, the myth that the court decides the great question before it on "neutral principles" of law rather than on their own views of policy. Justices, right as well as left, are activists; each new justice brings his own ideology to the bench and contends for it with the same fervor with which he contended for that ideology before he reached the court.
Since the court is so clearly a political institution, with the nine justices and their assistants struggling for their ideologies, why not treat the court as the political institution it is? Instead of presidents' springing appointments on the public whenever a justice dies or retires, I propose that each presidential candidate set forth a list of a half-dozen or so names of the men and women he intends to appoint if and when vacancies occur. This will give the voters some participation in the appointment process to these lifetime positions, for the voters will be able to consider the proposed lists of possible Supreme Court nominations along with other factors in determining whom they should support. It would give the press and public ample time to scrutinize proposed Supreme Court appointments and likely avoid the type of snap judgment that a president makes in appointing a McReynolds (Wilson's attorney general, whom Wilson didn't want around) or a Carswell (who almost made it to the court with American Bar Association support).
The best safeguard for a political body is to make sure it gets the best possible people chosen by as close to a democratic procedure as the Constitution permits.