The Brethren: Inside the Supreme Court by Bob Woodward, Scott Armstrong
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Book Reviews of The Brethren: Inside the Supreme Court
Book Review: Review from a First Year Law Student
Summary: 4 Stars
Long, but worth the read. Although it was written many years ago, the issues remain the same. Abortion, war, obscenity, etc. Issues that every first year law student should be well versed in. Recommended read.Book Review: Crazy Old Men? A clerk's eye view.
Summary: 3 Stars
I have become interested lately in the various opinions handed down by the Supreme Court in the Guantanamo habeas corpus cases. I was particularly surprised by the vehemence of the dissenting opinions expressed. This lead me to this book, to find out more. Published in 1979, it documents the internal workings, decision making and rivalries in the Supreme Court between the years 1968 and 1975. The activist Chief Justice Warren resigned at the start of this time, and the remainder of his colleagues moved towards retirement, replaced by Nixon appointees. The Court's more controversial cases in this time dealt with segregation, abortion and Watergate.
They say that no man is a hero to his butler, and I think this book provides a law clerk's eye view of the workings of the court and the interactions of the justices. Each year, each justice hires three (more recently four) law clerks to help with research and documentation. The clerks leave after one year, and the book is laced with opinions about lazy justices being over-reliant on their clerks to write their opinions, how hard working clerks can influence which cases are taken and what opinion `their' justice forms. I think this needs to be taken with a pinch of salt. It is certainly true that the justices are appointed to life-long posts (they can be impeached by Congress, but otherwise make up their own minds when to retire), and that the temptation exists both to remain at work though they get older and physically weaker, and to get less interested in the writing of complex opinions. However I think it is clear that all the justices mentioned here, closely valued their own opinion and were jealous in casting their vote in the judicial conferences. It is also clear that, over the years, their basic philosophies could lead close observers to predict what their views on a particular case were likely to be.
I have read that one of the authors' main sources for this book was the Justice Potter Stewart, who was in the running to become Chief Justice after Warren retired, but declined to put his name forward. There is an element of sour grapes towards Justice Burger, who did become Chief Justice. Burger is depicted as dim-witted, vacillating, manipulative and devious. I am sure that being in (essentially) a job for life, with eight other colleagues can lead to enormous frictions, especially when you are both free and required to express your opinions, which can have enormous consequences on society.
The book is very informative about the workings of the Supreme Court, the characters of the Justices and the role of famous precedent setting cases. It is both enlivened and cheapened by the gossipy nature of some of the anecdotes, for example, when Justice Hugo Black died, he asked that all his personal papers be destroyed, to preserve the confidentiality of the decision making process. His paster, who wished to say something at his funeral, was left without much to go on, so he went to Black's book collection, and looked through books written by Black;s former law clerks; the pastor chose some of the underlined passages, especially from one particular book which was heavily marked, to illustrate what he believed were Black;s interests and views. The book quotes the other justices saying, after the funeral, that Black must have been turning in his grave, as he only underlined areas with which he disagreed!.
There was an ongoing issue about how to define pornography, whether it was a version of free speech or an offense to the general public. The justices could not come up with a definition of pornography that might not infringe (they felt) on free speech, so the best they could come up with was expressed by Potter as `I can't define it, but I know it when I see it'. Unfortunately this translated into the Supreme Court having to view, and decide by majority, on every piece of contested pornography in these years!. This is also dealt in a gossipy, jocular way, which again undermines some of the seriousness of the decisions - in fact the `liberals' (Brennan and Douglas) felt nothing should be banned, provided it was proven that if was capable of being only viewed by adults who specifically were aware of its contents, therefore they did not view any of the material.
The relative standing of each justice is also described, especially Harry Blackmun's inferiority complex, his indecision and his desire not to be seen a overly-influence by Justice Burger (despite being a life-long acquaintance). Their interaction, and the pride they took in contributing to developing law - as opposed to writing futile and bitter dissents, is contrasted with their profound (and perhaps egotistical) political philosophies. Their personalities are largely described in relation to their clerks also - an `amiable' justice takes the time to learn his clerks first names, something you might think is common courtesy ; however usually their personality contrasts with their legacy - William O. Douglas, a liberal icon, is seen as acerbic, imperious and eccentric.
The book is particularly good on the abortion judgement and the Watergate decisions, which, I believe, show the Court at is worst and best respectively. The court ruled in favour of abortion, as an extension of a woman's right to privacy, and the opinion was written by Blackmun. The opinion as written is shown to be of equal parts concern not to interfere with medical practice, and as a way for Blackman to redeem his reputation for indecision. It was definitely an unexpected decision of a Nixon appointee, though the progress of the case and the writing of the decision are well described.
The Watergate controversy came to the Court as a challenge by President Nixon to orders for him to release taped Oval Office conversations to an committee investigating the Watergate break-in. As you would expect Bob Woodward has an excellent command of this case, and the process is described in detail. Though there was enormous concern (apparently) among the justices that their opinion be unanimous, and there was manoeuvring to ensure that Justice Burger, when writing the opinion, did not prevaricate or water it down, it seems to me that the strength of the court was that there was no question, from the outset, but that the President would loose. Whether the opinion would be narrowly based, and deferential, or a towering denunciation, was of some concern, but their unanimous view was that the President, who had appointed three of their number, was in the wrong, and must release information which would lead to his impeachment or resignation. Watergate and Nixon's resignation gave the Soviets a short-lived fillip in the Cold War, and at the time was seen as the Stumbling of the American Superpower, but ultimately can be viewed (I think) as the ability of the United States system of governance to impose standards and to correct itself.
In general I think this book is useful, if too biased and gossipy. I think the absence of any footnotes, references or bibliography does it a disservice. As with all Woodwards material, I presume these absences are part of the price paid to get the information in the first place, and his reputation is such that the credibility of the book remains high. However, while it is likely that the events described are factually reported, and the characters and interactions are as fractious and frail as described, I think Hugo Black's view is more germane i.e. that publication of private papers/stories of Justices would inhibit the free exchange of views in the court. Read the formally published opinions and dissents, they are dramatic and revealing enough.
Book Review: Good, with reservations
Summary: 3 Stars
Frankly, I thought for sure this would be a 5-star. It's thick, "complete." And maybe that's its shortcoming.
Many a reviewer has commented on how the details of the politics of the Supreme Court were examined in this volume. The problem I had with it is that (1) the authors' biases were evident and (2) I don't know how the authors could know so well what's going on in the minds of the justices.
Regarding the first, I have pretty much the same biases as the authors. I would have admired the Warren Court more than that of Warren Berger. But they judged Berger harshly from the beginning. Methinks that, had they done the same at the beginning of the Warren Court, they may have been surprised.
As to the second, there was quite a bit that reminded me of what a former boss pointed out about a Halberstram book. I can't remember the details, but he asked, "How could the guy know what was going on in the minds of those in such and such a board room? That was speculative." I found just enough of that in this book to be a little annoying.
I was part of a discussion group over the book and some of the group members were amazed by (1) how hard William O. Douglas, the one whom we've looked to for liberal guidance, was on his clerks and (2) that Thurgood Marshall appeared, frankly, to be kind of lazy! I just thought I'd add that for a little color to the review.
If there is any one benefit of the book it's that it reveals that the justices are, alas, human. That sounds naive perhaps. But I've often wondered if the Supreme Court is almost like a temple, with the priests going into their chambers of intellectual superiority, way beyond us mere mortals. You may get the picture. But they are very political...and they vary substantially, according to the authors, in their intellectual abilities. That revelation makes the book worth reading. But it is a little cumbersome at times, and you must take some of the authors' words for what they're worth.
Book Review: Interesting, but lacking
Summary: 3 Stars
I was very much looking forward to reading this book. But I must say that from the first chapter I was disappointed with the writing. The book reads like a string of unrelated newspaper articles or diary entries. There is no underling arc that ties all of the little stories together.
However, despite this shortcoming, "The Brethen" is very interesting. Woodward and Armstrong provide a unique take on the inner-workings of the first few years of the Burger court.
I would suggest that anyone considering reading "The Brethen" instead consider "Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court" by Edward Lazarus.
Book Review: Constitutional law (little) -- Moral judgements (plenty) -- Office politics (lots)
Summary: 3 Stars
So, you say you want to understand what CONSTITUTIONAL basis the Supreme Court's decisions stand upon? --- You won't find much of that here.
Maybe you want to know the MORAL basis of all those famous Supreme Court decisions? --- This book's got it covered.
Or maybe you just want to read about the juicy OFFICE POLITICS between the Supreme's. --- Bingo.