The Brethren: Inside The Supreme Court (2005) - Plot & Excerpts
In what is putatively a democracy, with power given by the people, and then shared among three coequal branches of government the United States Supreme Court stands apart. It is distinctly undemocratic: unelected, unaccountable, and secretive. The Supreme Court is where the power is, because it doesn't matter who makes the laws, or enforces the laws; it only matters who interprets the laws. The Supreme Court has always been a political branch, though it's only fairly recently that we've come to accept this (accept the reality, that is, without condoning it). Today, the big fight is over judicial activism. Liberals have been accused of being activists for finding "fundamental rights" in the 14th amendment. Conservatives - especially of late - have been accused of being activists for striking down laws passed by a duly and democratically elected congress. In essence, then, judicial activism is any Supreme Court opinion you do not agree with. Bob Woodward's The Brethren is the best window we've ever had into the Supreme Court and its life-altering decisions. It was written in 1979 and covers the 1969 through 1975 terms. Though it deals with a Supreme Court that has receded into the past, it is still as relevant and vibrant as ever. More recent Supreme Court exposes, such as Jeffrey Toobin's The Nine and Jan Crawford Greenburg's Supreme Conflict are pale pretenders. This is the original, often imitated but never surpassed. It is a high-wire feat of reporting and story-telling. The Brethren begins with the retirement of Chief Justice Earl Warren, who'd presided over Brown vs. Board of Education and Miranda vs. Arizona. This latter case, requiring criminal defendants to be read their rights, helped bring Nixon into office, where he would declare a "war on crime" (and unleash an undeclared war on Cambodia). The man chosen to replace the legendary Earl Warren, a man of true greatness, whether or not you agreed with his legal acumen, was Warren Burger, to whom no greatness ever neared. The Burger Court years were tumultuous and fascinating; at least, they are fascinating to me, which frankly, might not be saying much. The seven terms covered by the book saw many landmark cases: Roe v. Wade (abortion); Cohen v. California (f**k the draft!); and United States v. Nixon (executive privilege). It's not the cases that make The Brethren, however; it's the people. Supreme Court justices have always done their best to appear inhuman. The authority of a judge rests on his or her apparent impartiality towards the vagaries of life, and strict fidelity to the letter of the law. All the trappings of a judgeship are meant to foster this impression: the raised bench; the black robes; the lifetime appointments. Woodward gives these justices - some of them legal titans - the breath of life. Good or bad, these men are made human (Sandra Day O'Connor wasn't appointed till 1981). Burger comes off the worst. He is something of a legal weasel, a politician without any skill, who abused his prerogatives as chief justice to mess with the writing assignments (this famously backfired on him when he gave Blackmun Roe v. Wade). It doesn't take much to convince me that Burger was a ponce, but Woodward proves the case. For instance, Burger found it incredible that involuntarily committed patients should have a right to psychiatric care. Really! How would you like to live in Warren Burger's America, where your freedom can be taken by the government, and the government won't even give you a mental evaluation? (Of course, Burger wasn't a bad man, and Woodward shows that he was probably more racially enlightened than many of his contemporaries). In a book like this, bias is an issue. In my opinion, Woodward does a good job of presenting a balanced portrait. While Burger comes off poorly, Woodward presents a positive image of a young William Rehnquist, fresh from the Nixon administration and sporting a great set of sideburns. Much of The Brethren is focused on the back-stories surrounding the important cases of the day. However, the greatest enjoyment I got from this book was its sense of intimacy. There are times you feel like a fly on a wall of the justices' chambers (most of the sources were law clerks, who occupy a privileged position in the legal system). You are privy to the justices' conversations, their thought processes, and their jokes. If you're a lawyer nerd, or a nerd who's interested in the law, these pages are a great place to spend some time. You will come to know men who were formerly surnames on opinions: the good-humored Thurgood Marshall, pretending to be the elevator-man for befuddled tourists; the morally self-righteous Byron White; the prickly Harry Blackmun; and the tragic William O. Douglas, who kept hanging onto his position as a justice even after suffering a debilitating stroke. The great surprise of The Brethren is its humor, much of it gleaned from incisive observations about the justices: Stewart wasn't working too hard. The joke around the Court was that he and Marshall passed each other in the corridor most days just before noon - Stewart on his way to work, Marshall on his way home.Woodward also has fun with the large number of obscenity cases heard during these terms. You are treated to law clerks shouting "I see it" while screening allegedly obscene films (a riff on Potter Stewart's famous declaration that he knew obscenity when he saw it.) You are also witness to the rectitude of Wizzer White, the former all-American football player who had firm (no pun intended) beliefs on the matter: In the pending cases, White's clerk checked to see whether the material violated his boss's personal definition of hard-core pornography. It was a definition that White had never written into an opinion - no erect penises, no intercourse, no oral or anal sodomy. For White, no erections and no insertions equaled no obscenity. (What I took from this is that Byron White probably wasn't much fun on a Friday night.)A Supreme Court opinion is designed to be formal; unemotional; detached; cold. Like the laws given to Moses, the Supreme Court's edicts are meant to be chiseled in granite. The distance between author and reader gives the opinion's words their force. It also obscures the author's humanity, by elevating him (or her) above the human fray. The Brethren gives lie to the impression that judges love to foster: that they are immune to any consideration other than the law. In truth, their consideration of the law is determined by what kind of person they are.
Whether they realize it or not, the decisions of the U.S. Supreme Court have enormous ongoing impact on the lives and prospects of every American. Most Americans who actually follow politics and public affairs have very strong opinions about the court: about what its proper role should be, about what philosophy of jurisprudence should guide its decisions, and about how well the current and past courts have measured up (or failed to) by those standards. I'm certainly no exception; my own perspective is that of a strict constructionist paleo-conservative, who sees adherence to democratically-adopted written law as essential to democratic government. That perspective is elaborated more fully in my reviews of The Tempting of America [www.goodreads.com/review/show/25812422 ] and Unequal Protection: The Rise of Corporate Dominance and the Theft of Human Rights [www.goodreads.com/review/show/158209251 ] (and I'd recommend both books as windows into the abuse of authority by the court in the past and the present). Those two books, of course, barely scratch the surface of the voluminous number of legal and historical treatises that present explicit evaluations of the rightness or wrongness of the court's performance. This book isn't one of them. But it does provide a much rarer descriptive supplement.The authors were Washington Post reporters (Woodward, of course, made his mark as a reporter of the Watergate scandal), who approached their task journalistically: they give us a descriptive bird's-eye view of the inner routines, interactions and politicking of the Burger court in its first seven terms, 1969-75. They based this portrayal on a plethora of both oral sources on the inside (speaking off the record) and on access to a mass of written primary source material, much of it unpublished. What emerges is an unprecedentedly intimate and candid look at an institution that historically has been highly secretive. Indeed, the court's justices have cultivated an image of impartial, apolitical servants of the law, honestly divining its meaning for us plebians with no tool but their dispassionate intellect. Many of us would agree that their deliberations should be aimed at the honest, dispassionate and unpolitical exposition of constitutional and statute law. But if this book does anything, it demonstrates that this picture doesn't bear very much resemblance to what really goes on. (And to the extent that it doesn't, the pretense that it does becomes little more than a cynical ploy to gain popular compliance with dubious or illegitimate decisions --though the authors leave it to the readers to figure out that conclusion for themselves).Most of the justices depicted here are shown to have personal agendas, sometimes ideological ones on the Left or Right --impartial service to the law usually wasn't high among the considerations. Of course, the authors' own ideological sympathies lay with the Left, or they wouldn't have been allowed to work for the Washington Post; but in their researching and writing of the book, they did a commendable job of checking ideology at the door, to give us an objective factual portrayal of the justices as they were, with all of the personal likes and dislikes, ego-stroking, and sub rosa deal-cutting that shaped their decisions. Burger comes off the worst, manipulative and cynical --he was a master of the art of voting for outcomes he didn't believe in, in order to control who wrote the opinion, though he wasn't the only justice to tailor his votes with an eye to writing or getting out of writing an opinion. (His left-wing rival Brennan, who detested him personally, was just as politically manipulative, but much more naturally gifted at it.) But some liberal icons don't come off well either: Douglas, for instance, was a bullying tyrant to his clerks, and pathetically clung to his office long after a stroke had incapacitated him. Justices White and Rehnquist --one appointed by Kennedy and one by Nixon-- come across as the most principled of the bunch.A wide variety of cases considered in this seven-year period are discussed, the two most prominent being Roe vs. Wade and the subpoena for Nixon's Watergate tapes. In no case, including these, do the authors express their own opinion. But the factual description of the lead-up to the former decision makes it indelibly clear that the entire process was result-driven and political, with no attempt at actual constitutional reasoning. (The same could be said of a good many of these decisions.) And while the court ultimately supported the subpoena for the Nixon tapes, it's chilling to learn that if Burger (who privately declared his belief that Nixon hadn't done anything wrong!) had his way, the opinion would have conceded a great deal more ground to the claim of "executive privilege" than the one the court finally issued.Any study such as this one is a snapshot in time, a picture of one part of the court's ongoing history. None of the then-sitting justices are still on the current court; the cases discussed are all some forty years in the past. Some readers might say that it's "dated." But that's too superficial a conclusion. At the very least, it's an invaluable primary source for a key part of the court's history. And obviously some of these decisions --notably Roe-- still haunt us today. But most importantly, it reveals a basic reality behind the court's facade that time is unlikely to have changed; power blocs and alliances may shift, personalities and cases change, but the kind of dynamics the authors describe continue to shape the court. I think it could serve as an eye-opening read yet today, all these years after it was written. And it's certainly a fascinating read, as entertaining as a novel. (One reviewer complained that the authors don't define legal terms, such as "cert;" but they DO define that one in the introduction. I didn't find the legal terminology excessive, and don't think it would be too technical for educated readers.)
What do You think about The Brethren: Inside The Supreme Court (2005)?
I generally do not like to spend my free time reading books about the law. I picked this book up at my Dad's house during a recent trip. Due to the length of the book and its subject, I thought the odds were long that I would get very far before putting it down and picking up some fiction. I enjoyed this book more than anything I've read in a longtime. Now more than 30 years old, what was originally current affairs when it was published can be viewed looking back with some historical perspective. The last justice to join the Brethren in the book, John Paul Stevens, was the last of the Brethren to retire from the Supreme Court in June 2010.The Warren Court was responsible for the major advances in individual rights in the sixties and early seventies , but today's society was still be shaped in the early year's of the Burger Court (recognizing that it continues to be reshaped after the time period covered by the book, just in a different direction). It makes one contemplate what America would like today if justice Douglas had retired just a year or two earlier. Or if Nixon hadn't botched (from the conservative's perspective) so many of his picks (Blackmun and Powell). But as the Court moved to the right, the center gained in importance. Stewart, Blackman, Powell and Stevens (all republican appointments) perform admirably in the face of Burger.Burger - was he evil or stupid? That was the clerks' debate. Woodward and Armstrong leave you with the impression he's both. That is another thing I really enjoyed about this book, like Game Change, the curtain is pulled back. Imagine the contempt Justice Stewart must have had for Burger to permit himself to be the primary source for this book at a time he was still on the Court. I really enjoyed this book, but I also think that as a result of it being written, those with interests in picking Justices are much more careful to be certain that the nominee is what they believe him to be (Roberts, Scalia, Alito). The stakes are too high (for both parties), and, without the benefit of historical perspective, the Court looks more like it is occupied by two political parties rather than 9 justices.Next up, The Nine by Toobin.
—David
I have again gone back in time to a book that has ties to the Nixon years, co-written by a pair of Washington Post reporters with ties to Nixon's fall. The Brethren -- written by Bob Woodward and Scott Armstrong -- looks at the U.S. Supreme Court during a time where justice selection seemed to be as political as the rest of the Government. From 1969 -- the year Nixon selected Warren Burger as Chief Justice -- through 1975, Woodward and Armstrong wrote about the life and times of the Court, provided tremendous insight to the members, and how their interaction decided (and delayed) some of the Nation's major legal decisions.The time frame selected - 1969 to 1975 - saw a huge transition in the Supreme Court. In addition to Burger (who replaced Earl Warren), Nixon was able to name three more Supreme Court Justices in three years. These selections included Harry Blackmun, Lewis Powell, Jr., and William H. Rehnquist, who would eventually replace Burger as Chief Justice in September 1986. With the selection of John Paul Stevens by President Ford in 1975 -- half of the Supreme Court changed in six short years. Most of the selections were deemed "political" as both authors felt the appointments were part of Nixon fashioning the Court to his liking.During that time span, the Court saw many issues that still have impact today, with some decision historic reference. These decisions impacted abortion rights, equal pay for women, busing to achieve school integration, the death penalty, the Muhammed Ali appeal, and the release of recorded tapes that led to Nixon's Watergate resignation in 1974. In all these subject, the authors went into details as to how decisions were researched, organized, reviewed and revised over an extended period of time. My fascination in this work was just how long the process took for nine judges to review, discuss, bargain, coordinate and intimidate each other until a decision was released. Everything from the politics involved in Nixon's selection of justices to the battles between liberals and conservatives on every little item of every case. I was intrigued by the way justices would shift gears, change course, and switch directions in their opinion of a case - often multiple times to gain either a unanimous vote or that delicate 5-4 decision. You also learned of the individual characters -- ones appointed in the late 1930s like FDR's appointments of Hugo Black and William Douglas, and how their styles matched with the newer appointments by Nixon. You also learned that a justice entering the court with a single philosophy could shift philosophy after time. This book had a tendency to drag a little, especially in the discussion of death penalty cases portrayed in the later chapters -- there was so much detail in the decision making process and anotating the process could get tedious. I did like the recognition both authors gave to the loyal legal clerks who served each justice. I also liked the way the authors portrayed each justice as an equal -- with none subordinate the Chief Justice or to another associate justice, yet respectful (with some exceptions) to those with the experience and knowledge of time served and decisions rendered. A wonderfully written civics and history lessson on how the court of 1969-1975 worked. I wonder how much has changed in the chambers of courts that followed.
—Steve
The best of Woodward's many books. The Brethren was the first the (now) many "Inside the Supreme Court" books.The cliff-notes version: Chief Justice Burger is a hack. Justice Brennan is a great hero for all mankind. Justice Marshall is lazy and lets his clerks do all of his work. And Justice Stewart is the everyman justice (with a 125 IQ, natch) with his finger on the pulse of the American zeitgeist. The rest of the justices barely figure.Much of this is probably true (who knows?), but Woodward here follows his traditional m.o.: reward those who leaked to you, punish those who snubbed you, and ignore everyone (and everything) else.
—Jeff
