The Brethren: Inside the Supreme Court
A journalistic challenge to institutional secrecy—what Bob Woodward and Carl Bernstein did so well when they investigated Watergate—depends on credibility. In their reports for the Washington Post Woodward and Bernstein had freshness on their side, an absence of obligation to the establishment. But they succeeded in the end because they were believable, and Richard Nixon was not.
Now Woodward and Scott Armstrong have taken on a more complicated task, that of unveiling the Supreme Court. The nature of the Court’s work and the privacy of its process make appraisal of the book a more complicated task as well. Credibility is hard to measure when the issues are not black and white and when the affected institution cannot answer back. What a reviewer can do is look closely at a passage that makes a relatively definite and verifiable allegation. I shall do so here with the passage, already much noted, charging that Justice William J. Brennan, Jr. voted against his judgment of the merits in a case, making the fifth vote for the majority, in order to curry favor with a colleague, Justice Harry A. Blackmun. It is a serious charge. How serious, how convincing, how fair are the authors in making it?
The case was Moore v. Illinois, decided on June 29, 1972. Lyman A. “Slick” Moore had been convicted of murdering a bartender in a barroom quarrel, and sentenced to death. The sentence could not stand because the Supreme Court on the same day held capital punishment, as then ordered, unconstitutional. But Moore challenged his conviction, saying it was improper because the prosecution had failed to turn over favorable evidence to him at the trial.
Justice Blackmun wrote an opinion rejecting Moore’s argument, Justice Thurgood Marshall one in favor of granting a new trial. Woodward and Armstrong say: “Marshall needed only one more [vote] to take away Blackmun’s majority. His friend Brennan would surely provide the fifth vote. Brennan, after all, was the author of a landmark 1963 decision (Brady v. Maryland) that required prosecutors to turn over all exculpatory evidence to the defense.”
Brennan was not in fact the author of the Brady opinion; it was written by Justice William O. Douglas. Nor did that decision require all exculpatory evidence to be turned over. What it said was: “The suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment.” The issues in the Moore case were precisely whether there had been an adequate defense “request” for certain evidence and whether the evidence was “material”—whether, that is, it could have made any difference. The two Supreme Court opinions disagreed on the facts of the latter question.
Woodward and Armstrong then make their charge, as follows:
“One of Brennan’s clerks thought that if Brennan had seen the facts as Marshall presented them, he would not have voted the other way. He went to talk to Brennan and, thirty minutes later, returned shaken. Brennan understood that Marshall’s position was correct, but he was not going to switch sides now, the clerk said. This was not just a run-of-the-mill case for Blackmun. Blackmun had spent a lot of time on it, giving the trial record a close reading. He prided himself on his objectivity. If Brennan switched, Blackmun would be personally offended. That would be unfortunate, because Blackmun had lately seemed more assertive, more independent of the Chief. Brennan felt that if he voted against Blackmun now, it might make it more difficult to reach him in the abortion cases or even the obscenity cases.”
The authors say the law clerks were “shocked” at Brennan’s attitude. They close their discussion of the Moore case with these words: “Brennan had his priorities. His priority in this case was Harry Blackmun. There would be no new trial for ‘Slick’ Moore.”
That is the charge. How does one test whether it is true? No sources are named: “Bernnan understood,” “Brennan felt.” But the passage does seem to rely crucially on a conversation between Justice Brennan and one of his 1971-1972 law clerks. I found that clerk: Paul R. Hoeber, now Acting Professor of Law at the University of California, Berkeley. He spoke on the record:
“This is a case that was decided the last day of the term. The feeling among Marshall’s clerks, Douglas’s, [Justice Lewis F.] Powell’s was that the case was being wrongly decided. Right at the last minute—I think the day before—one of them came to me, and I think it was Marshall’s clerk. He said to me, ‘Is there any chance of talking to Brennan and getting him to switch his vote?’
“You can understand that on the day before the end of the term there isn’t much chance. But I did talk to Brennan, and I said the view among us clerks is that Marshall is right. Brennan’s response was, ‘No, I’ve read the opinions, it’s a factual case, and Blackmun is right. As far as the law goes, there is nothing inconsistent with Brady.’
“The conversation took two or three minutes. And I wasn’t ‘shaken,’ as the book says. I told my co-clerks that Brennan was firm, I told Marshall’s and I told Powell’s. That’s all that happened.
“I wasn’t familiar with this style before I read this book. It’s the omniscient historical novel. It’s slippery. I can just tell you that there was no such conversation.”
Hoeber was sufficiently outraged when he read The Brethren that he telephoned the three other men who had clerked for Justice Brennan in the 1971-1972 term. All agreed that they had had no such conversation with the Justice. The idea that Justice Brennan had acknowledged to one of his clerks the correctness of the dissent in Moore was, to them, simply false.
Soon afterward, Hoeber had a telephone conversation with Bob Woodward. He told Woodward none of the four clerks of that term had had such a conversation with Justice Brennan. Woodward’s response was that the book did not purport to rely only on that conversation. He told Hoeber: The book doesn’t say that Brennan told all that to you; it says that was his position, and we know that from other sources.
The conversation with Woodward left Hoeber troubled. He and his three co-clerks decided to talk with every one of the clerks who were at the Supreme Court that year. There were thirty altogether. Telephoning before and after Christmas, they reached twenty-nine of them. None supported the Woodward-Armstrong story. None knew anything about clerks having been “shaken” or “shocked” by Brennan’s attitude on the Moore case.
Of the twenty-nine Hoeber found, only one said he had been asked by Woodward or Armstrong about the suggestion that Justice Brennan had voted against his real view of the merits of the Moore case; he told them he had never heard of such a thing. Hoeber reported some other reactions: “Powell’s clerk remembered my telling him that Brennan said Blackmun was right, it was consistent with Brady. Marshall’s clerk told me, ‘I never heard such a story—you never indicated that Brennan thought Marshall was correct, and I never saw you shocked.’ Others said that if they had heard anything like what’s in the book, believe me they’d remember it.”
Apart from the attribution of bad motives to Justice Brennan, there are inaccuracies in Woodward and Armstrong’s account of the Moore case. They state in a sentence the complicated factual issue in the case, and get it wrong. They imply that Justices Blackmun and Marshall disagreed about the display to the jury at Moore’s trial of a shotgun that was not used in the crime; Marshall in fact found no constitutional flaw in the shotgun episode. They say that after Marshall circulated his dissenting opinion, Justices Powell and Potter Stewart “quickly switched” to his side, making Brennan’s the key vote; Powell in fact only decided to join the dissent (along with Stewart and Douglas) two days before the term ended.
And the authors fail to convey the circumstances surrounding the Moore case: the pressures under which the Court was working when the decision came down. The last day of that term, June 29, 1972, produced one of the most spectacular outpourings of important opinions in the Court’s history. They included the death penalty cases, with ten different opinions, together with orders in many other capital cases that had been held for those decisions; Branzburg v. Hayes, three jointly decided cases rejecting—by votes of 5 to 4 and with four opinions—newspaper claims for a journalist’s privilege not to testify when called before a grand jury; Gravel v. US, arising from Senator Mike Gravel’s activities in the Pentagon Papers affair, the Court holding 5 to 4 (with four opinions) that a Gravel aide had to answer grand jury questions about private publication of the papers; Brewster v. US, a major case on congressional immunity, the Court holding 6 to 3 (with three opinions) that Senator Daniel Brewster could be prosecuted for taking a bribe; and Kleindienst v. Mandel, in which a 6 to 3 majority (with three opinions) rejected the claim that Americans had a constitutional right to hear the views of a Belgian lecturer who had been barred from this country as a Communist. Among those major cases Moore was a factual dispute, raising no issues of law, on which the justices spent little time in those hectic final days. It was, Hoeber says, “a pebble in the stream.”
I have taken much space to explore a charge that is only a small part of a large book. But there is no way other than detailed analysis of particulars to appreciate the difficulties of this book—the difficulty, especially, of knowing what is true, what can be relied upon. Of course one cannot prove that Justice Brennan never “felt” or “understood” what the authors allege he did in the Moore case. Incredible though such a charge is against the Court’s most devoted libertarian, he may have told someone that he was going to vote against his conscience. It is impossible to prove that he did not.
But it is possible to reach a conclusion about the way The Brethren presents this episode. It makes a serious charge without serious evidence—almost offhandedly, in two pages. It gets facts wrong. It gives the impression of relying on a conversation between Brennan and a law clerk that the law clerks of that term say never took place. If the passage was not meant to rely on such, a conversation with a clerk, then it grossly and deliberately misleads the reader. In sum, the treatment of Moore v. Illinois leaves doubts not only about the authors’ understanding but about their scrupulousness.
About the enterprise and ingenuity of Woodward and Armstrong there is no doubt. They have done what no one else, journalist or scholar, has attempted in the nearly two hundred years of the Supreme Court’s existence: shown, however partially, its process at work—what happens before the published opinions—in a large sampling of recent cases. There have of course been scholarly studies based on the files of one justice or another; a superb example was Alexander Bickel’s The Unpublished Opinions of Mr. Justice Brandeis. But The Brethren covers the period from 1969, when Warren E. Burger became Chief Justice, to 1976. Woodward and Armstrong indeed say in their introduction that “we limited our investigation to those years” in order to “ensure that our inquiry would in no way interfere with the ongoing work of the Court.”