Sharp Blows at the High Bench

Much ado about The Brethren--and another "inside"book

Tell-it-all books on the Supreme Court may yet become a new publishing genre. Sales of The Brethren, the gossipy, 467-page "inside" look at the high bench by Watergate Sleuth Bob Woodward and Scott Armstrong, have soared since it was released by Simon & Schuster in December. Now the court is about to be shaken further by a book that may draw even more attention, if only because it was written by someone who really did have firsthand knowledge of the institution's personalities and practices: Justice William O. Douglas.

Well before he died in January at 81, the court's crusty, most independent Ioner and liberal completed a long memoir of the nearly 37 years he had spent on the bench. Early reports are that the forthcoming book, which is due from Random House this fall, shows that Douglas was bold in setting down his often acid-etched opinions of the court and his colleagues. A former law clerk of Douglas' who has seen the early drafts describes some of the Justice's comments about his brethren as "incredibly nasty. They read like something that Alice Roosevelt Longworth would have written."

Douglas' reminiscences are said to have been so blunt that he had second thoughts about having some of them published; many of the sharpest barbs in the original manuscript were toned down or cut out by Douglas and his fourth wife Cathy, 36. Still, the book should bear out the Justice's well-earned reputation as a maverick. The work is known to contain an especially vivid and unflattering portrait of Douglas' earliest nemesis on the court, the late Felix Frankfurter. Of the current nine members of the court, Chief Justice Warren Burger gets the harshest treatment, as indeed he does in The Brethren, where he is depicted as a vain, posturing maneuverer who manipulates the court's rules to help him get his way. But others get drubbings too. Thurgood Marshall, for example, is criticized for weakness, even though he had been an ideological ally of Douglas'.

To judge by sales of The Brethren, the public is fascinated by the court. The book shot to the top of the bestseller lists within days after it first appeared, and it has stayed at or near the top of the charts ever since. Simon & Schuster, which has printed 600,000 copies, believes that the book will eventually outsell even Co-Author Woodward's Watergate works, The Final Days and All the President's Men. But if The Brethren is doing surprisingly well, it is also getting harsh judgments from its most critical readers, legal experts and other well-informed court observers.

The book, which took the authors two years to research and write, was drawn largely from interviews of people on the court's sidelines, including some 170 present and former clerks, the bright young law school graduates who serve as the Justices' aides. Little, apparently, came from the several Justices with whom Woodward and Armstrong talked. Even so, the critics note, the narrative is stippled with much detail about the Justices' inner motives and feelings: Potter Stewart's stomach is said to "knot" before a meeting with President Nixon; William Brennan "felt betrayed" at one point; Burger, who never spoke to the authors, "vowed to himself that he would grasp the reins of power immediately." Complains University of Chicago Law Professor Philip Kurland, a longtime court watcher: "We're just told by the authors that we've got to believe it. It's all Deep Throat--at best, hearsay twice removed." Says Critic Renata Adler, a Yale Law School graduate: "It's the most shallow and inaccurate piece of journalism I've ever seen in book form."

One story the critics have cited concerns a 1972 decision, Moore vs. Illinois, that denied a new trial to a man who faced a life sentence for murdering a bartender in a tavern quarrel. As the book tells it, Brennan favored a retrial but decided to join in the majority opinion. Reason: Brennan was concerned that Harry Blackmun, who wrote the opinion, would be "personally offended" if he dissented and thus might not support him in other cases. New York Times Columnist Anthony Lewis decided to probe this account of cynical legal horse-trading, which the book suggested was based on the recollection of an unnamed former Brennan clerk. Lewis found the ex-clerk, Paul R. Hoeber, now a law professor at the University of California at Berkeley. Hoeber denied that he told Woodward and Armstrong anything of the sort; he insists that Brennan voted with Blackmun only because he felt that the facts of the case required him to do so. (The authors say they stand by their account.)

The experts' major complaint is that the authors dwell on personalities while slighting substance. Though the portraits of the Justices generally ring true, the authors occasionally indulge in some low blows. At one point, the book suggests that Burger, who clearly is the clerks' least favorite Justice, cares little for the disadvantaged because he instructs his own clerks to spend less time working on the often scrawled, and rarely persuasive, petitions for hearings submitted by poor people. What the authors do not say is that Burger had this work, once done only by the Chief Justice's aides, spread out among all the court's clerks. Says a former Stewart clerk: "At first, I was convinced that [the authors] could not be unfair to Burger because he's such an idiot. But now I think they were."

In general, says J. Harvie Wilkinson, a University of Virginia law professor who once clerked for Justice Lewis Powell, "the authors took an essentially tedious and cerebral process and hyped it up to sell books. To read The Brethren, you would think that the court is a titillating, political place to work. It is not. It is a grind." Another irritant to the experts is the fact that while the authors delight in pungent anecdotal detail--one passage tells of Douglas' being incontinent at a meeting on the day of his return for the 1975 court term--they skim lightly over the judicial philosophies of the members. Says former Justice Arthur Goldberg: "The book is pretty much a gossip piece. Its historical value is nil."

The Justices themselves have maintained public silence about The Brethren. Insiders say the book has had little noticeable impact on the court's operations, though at least one Justice is known to have made a point of emphasizing to his clerks that they are supposed to keep their promise of confidentiality about the court's workings for at least "a period of years" after they leave. Says one former clerk who has talked to three Justices about The Brethren: "The book is on their minds; they're not ignoring it. Their reaction is shared disappointment: at the book, at the authors, and the clerks." Ex-Justice Goldberg, for his part, believes that "if the court can survive the Dred Scott case, which helped start the Civil War, it can survive The Brethren." Presumably, that goes for Justice Douglas' forthcoming effort too. -

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