Keyholing the Supreme Court

A new book tells tales out of chambers

Alone among public institutions, the U.S. Supreme Court has remained an Olympian myth: nine sages in black robes, unelected, unreviewable, pronouncing the last word on the law. Throughout its 190-year existence, the court's decision-making process has enjoyed a special immunity from public scrutiny. Even during the '70s, in the post-Watergate era of full disclosure, its white marble temple stood as a sanctuary, its inner workings Washington's last well-kept secret.

To Watergate Investigative Reporter Bob Woodward, that made the nation's highest tribunal a "sitting target." Together with Washington Post Reporter Scott Armstrong, Woodward set out to do for Chief Justice Warren Burger's Supreme Court what he and Carl Bernstein had done for Richard Nixon's White House in All the President's Men and The Final Days. Fortified by a $350,000 advance from Simon & Schuster, Woodward and Armstrong spent two years reading cases and interviewing Justices and more than 170 former court clerks, top-level law school graduates who serve as confidential aides for a year or two. The sources not only supplied the authors with blow-by-blow descriptions of the court's in camera deliberations during the first seven years (1969-76) of Burger's tenure but also made available a number of confidential court documents. The result is The Brethren, a book that ventures into the Justices' chambers and sets forth their feuds, their jockeying, their horse trading and their personal quirks in relentless and sometimes startling detail.

Of the twelve Justices portrayed in the book, Burger receives the harshest verdict. He is limned as a vain and petty man who consistently tries to bend or ignore the court's rules in order to get his way. His frequent vote switching exasperates his colleagues: after one flipflop, Justice Byron White threw his pencil on the conference table and shouted, "Jesus Christ, here we go again!" The chief is portrayed as a legal lightweight whose opinions are shoddy and poorly thought out. Of one Burger opinion dealing with court-ordered school busing in Detroit, Justice Lewis Powell is quoted as saying, "If an associate in my law firm had done this, I'd fire him." Fickle and unprincipled, the authors claim, Burger is a jurist who can write, a very liberal opinion on race discrimination, just so that his critics cannot easily pigeonhole him as a conservative. He is certainly no leader. "On ocean liners," Justice Potter Stewart reportedly told clerks at one point, "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 now is a real captain."

The court has no one who fits that description, as the authors see it. Decisions turn on the shifting votes of "the group," as Stewart calls it, the court's centrist core--Stewart, Powell, White and John Paul Stevens. Harry Blackmun is described as having to struggle to keep up with the court's work load but, growing in self-confidence and independence, he increasingly joins the group. Justice William Rehnquist has the intelligence and the personal charm to be the leader but is too far to the right to consistently swing others. The two leftover liberals from the Earl Warren Court, Thurgood Marshall and William Brennan, are embittered and isolated. In his chambers, Brennan calls the chief "dummy" and rails in dissent with an "acid pen." (Brennan is not, however, above letting a life sentence stand in one case in order to cultivate Nixon appointee Blackmun, even though Brennan believes that the convicted man deserves a new trial.) Marshall, the only black Justice, has given up. "I'm going fishing," he tells his clerks. "You kids fight the battles. What difference does it make? Why fight when you can just dissent?"

Other oldtimers on the court hung on long after they should have retired. Justice Hugo Black, who died in 1971, tried to cover up a stroke suffered while playing tennis; his colleagues began to wonder if he was becoming senile. In one pathetic scene, Justice John Marshall Harlan, once one of the court's leading intellects, was trying to sign a denial for review from his hospital bed. Nearly blind, he signed the bed sheet instead of the document. Justice William Douglas tried to exert influence even after he retired. He attempted to file a dissent in a campaign finance case and asked to have a tenth chair brought into the courtroom when the court heard oral arguments on the death penalty. Brennan, his old liberal ally, had to say no.

The book is sprinkled with homey detail. "What's shakin', chiefy baby?" is Marshall's jocular greeting to a startled Burger. At the height of the Agnew scandal in 1973, Baseball Buff Stewart had his clerks slip him play-by-play bulletins on the National League playoffs between the Cincinnati Reds and the New York Mets as he sat on the bench. One note read: "Kranepool flies to right. Agnew resigns." The Brethren also reports some tantalizing What Ifs. The court came within a vote of, in effect, judicially establishing the Equal Rights Amendment: Stewart held back only because he believed that state legislatures would pass the ERA. Muhammad Ali would have gone to jail as a draft resister had a clerk not persuaded Harlan to read some Black Muslim literature. Convinced that Ali's religious scruples made him a sincere conscientious objector, Harlan switched his vote and others followed: a 4-4 deadlock suddenly became an 8-0 vote to keep Ali free on a technicality.

Too often, however, the politicking and personal enmities depicted in The Brethren obscure what the Justices are really struggling with: the application of the law and the Constitution to complex moral and social questions like abortion, obscenity, busing, the death penalty. The notion that such issues can be considered solely in terms of abstract and impersonal principle is, of course, a myth. Inevitably there are times when the Justices end up voting their own convictions. "Result oriented" jurisprudence such as this has been criticized for years. But a Justice has to persuade his colleagues to produce a five-man majority; votes change and compromises are struck as individual opinions are exposed to the often withering scrutiny of the whole court. Ego clashes are not surprising, nor are they unique to just the Burger Court. Indeed, insiders consider this court less fractious than some of its predecessors.

Again and again in The Brethren, blatant ploys or power plays by individual Justices are thwarted by the court as a whole. A poorly reasoned opinion by one Justice is hammered into something coherent and justifiable by others. During the Watergate crisis, when Burger took the court's decision on the Nixon tapes case for himself and botched it, the other Justices conspired to wrest the actual writing of the opinion away from the chief and inserted their own judgments into the final draft. True, Stewart scoffed that the final product had been edited from a "D" to a "B" by law school grading standards, but the incident showed that the court has internal checks and balances. Lobbying by outsiders is shown to be futile. When the Washington lawyer and Franklin Roosevelt brain-truster Thomas ("Tommy the Cork") Corcoran visited his old friend Black and acquaintance Brennan to get a controversial antitrust decision reheard, or when New York Times Editor James ("Scotty") Reston telephoned Burger to talk about the Pentagon papers case, they were quickly rebuffed.

Such examples of institutional strength help offset the Justices' idiosyncrasies. "You sure can get the impression from the book that the court is an institution that works," says Co-Author Woodward. "There is strong evidence both ways. But we made a scrupulous effort to be non-judgmental." Indeed, the authors use a "just-the-facts-Ma'am" style; though the facts are not attributed, they novelistically include the Justices' innermost thoughts. In the book's final pages, Justice Stevens ponders his first year (1976) on the court. He finds himself "accustomed to watching his colleagues make pragmatic rather than principled decisions--shading the facts, twisting the law, warping logic to reconcile the unreconcilable." Even if it was not what Stevens had anticipated, the book says, "it was the reality."

That may just be Stevens' opinion, but the book's seemingly omniscient point of view makes it seem like the final judgment on the brethren. Readers may well conclude that for all the personal foibles recounted, the weight of the book's evidence shows the institution still to be sound. Millions of TV viewers who watched CBS Correspondent Mike Wallace and the authors discuss the book's spicier revelations on 60 Minutes last week are likely to be left with a more disparaging impression.

If so, the moral capital on which the court draws for its authority will be diminished. The disclosures in The Brethren could conceivably make the Justices less frank and open in their give and take. The revelations will certainly make some of the nine more cautious about confiding in their clerks; they also raise questions about the propriety of leaking confidential court documents. Burger, who once said that talking to a Justice's clerk was like tapping his phone, is understandably apoplectic about the book. But court watchers doubt that The Brethren will do the institution long-term harm. Says Co-Author Armstrong: "It's not going to change the Justices' relationships. These guys already know what they think about each other." In all likelihood, the Justices will go on as before, wrestling with their consciences--and each other--over hard cases.

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