The New York Review of Books

To the Editors:

Anthony Lewis in a review of our book, The Brethren [NYR, February 7], alleged that two pages dealing with a 1972 Supreme Court case, Moore v. Illinois, make “a serious charge (against Justice William J. Brennan, Jr.) without serious evidence” and “leaves doubts not only about the authors’ understanding but about their scrupulousness.”

We not only wish to take exception to both of Lewis’s assertions, but to raise several questions about Lewis’s own reporting standards. For the record, our evidence is not only serious but precise; our reporting was not only scrupulous, but, as best we can determine on further examination, completely accurate. We stand by our story.

In the book, we say that although Brennan realized his initial vote in the Moore case was incorrect, Brennan was unwilling to switch sides for fear of offending Justice Harry A. Blackmun who had authored the tentative majority opinion. Because of Brennan’s vote, a man was to remain in prison rather than get a new trial. According to our sources—and we have a total of seven—Brennan stayed with the Blackmun opinion because he did not want to jeopardize Blackmun’s vote in the more important abortion and obscenity cases.

Lewis bases his attempted refutation of our account on an interview with only one person, Paul Hoeber, a former law clerk to Justice Brennan. According to Lewis, Hoeber told him that our account was incorrect. Lewis goes on to cite Hoeber saying that twenty-nine other former law clerks cannot support our account.

Because Lewis relied on one source, he had no way of knowing the following facts:

1. Hoeber was the original source of the account. Fortunately for us because Hoeber was one of the two clerks who spoke on the record (out of more than 170 interviewed) during our research, we are able to relate what Hoeber said about the Moore case over the first of two long dinners at the Hay-Adams Hotel in late 1977.

2. Hoeber and his three Brennan co-clerks sent a letter to the Washington Post several days after the publication of The Brethren last December disputing the account of the Moore case. Since Hoeber was the original source, we contacted Hoeber and read him the notes of his interview. One half hour later, a messenger arrived withdrawing the letter on Hoeber’s behalf. We thought the matter ended.

3. Hoeber at first denied to other reporters that he had spoken with us about specific cases but changed his position when confronted with portions of the notes from the interviews.

4. Brennan’s support of Blackmun’s position in the Moore case was highly out of the ordinary for “the Court’s most devoted libertarian,” as Lewis calls Brennan. Brennan’s most frequent ally, Justice Thurgood Marshall, authored a dissent to Blackmun’s opinion and persuaded Justices Lewis F. Powell and Potter Stewart to join both him and Justice William O. Douglas. Marshall expected Brennan to switch sides also. Brennan’s failure to switch requires an explanation of exactly the sort Hoeber suggested in his interview with us in 1977. But Hoeber’s singular account was not a sufficient basis for drawing the conclusions we do in the book.

5. There are six additional sources for the account provided in the book. One made notes at the time and quotes Hoeber as returning from a meeting with Brennan and saying “He won’t leave Harry on this,” and confirms the reasoning we give in the book. Another source spoke directly with Brennan about the subject. That source reviewed a longer, more detailed version of the case we initially drafted and said that we “have the basic story correct.” That source also says that Brennan himself said “it simply is not a question of law worth deserting HAB [Blackmun].”

Yet another source quotes Hoeber as saying at the time in 1972 that Brennan accepted Marshall’s position but “he’s not going to let HAB [Blackmun] lose his court.”

Still another source noted how Brennan said he was concerned that the Moore case might “push Blackmun over to the other side” in the abortion cases.

Two other sources confirmed the account printed in the book. Over a dozen sources noted that during the period, Brennan was actively courting Blackmun in an attempt to be sure Blackmun voted with Brennan in the abortion and obscenity cases.

We are as certain as we can be that our account is accurate. Lewis had charged that we deal with the case “almost offhandedly.” Yet our account is based on multiple sources and includes at least two sources who discussed the case directly with Brennan and one source with notes made at the time. Lewis’s charge seems on the other hand to be based on one source.

Here are the notes of what Hoeber said in 1977 about the case:

Another case involving a guy named Slick; believe case was Moore v. Illinois. It was a Blackmun opinion and Bren. joined it. Decision was clearly wrong but Bren. did not want take back his vote. It had started out as 7 to 2; Pow. [Justice Lewis Powell] and one other switched after more study as any logical person would have done. So it was 5 to 4. Bren. held to original position because it was Blackmun. Clerks blamed themselves for not getting on the case early and seeing what it involved. Marsh. [Marshall] dissented.

Is it likely that Hoeber’s new position is accurate after the publication of a book that contains criticisms of his former boss? Or is it more likely that Hoeber was accurate in 1972 when he reported Brennan’s reaction to others at the Court and in 1977 when he gave the same account to us? It seems far more likely to us that Hoeber’s memory and candor were operating more precisely before there was a public controversy about the case, than after.

Hoeber’s error may be one of memory. But Lewis’s error is one of poor reporting. But it does not stop with his devotion to Hoeber’s new version. Lewis has further criticism. Noting that the book has one “Justice [Lewis’s friend Brennan again] saying, ‘You bet your ass’ or making an obscene gesture,” Lewis observes “[a]ll this has nothing to do with anything.”

Out of context, Lewis is perhaps correct. But Brennan makes the comment in response to the observation of another Justice, “that, as a white man, he would not want to be tried in the District of Columbia, where the juries were predominantly black.” Surely even Lewis must understand the potential significance of the “court’s most devoted libertarian” being so cynical about the capital’s criminal justice system.

And Brennan’s use of an obscene gesture to refer to the Chief Justice would be similarly irrelevant were it not an expression of Brennan’s bitter frustration over six years of what Brennan perceived to be the Chief Justice’s deliberate and callous manipulation of the Court.

Lewis says all this is merely strong feelings and “not news.” Indeed for Lewis it is not. After following the Court for over two decades Lewis has never reported it as news or anything else. He has simply withheld it from his readers.

Lewis praises some of the “more interesting disclosures” in the book, particularly the account of the 1971 decision upholding court-ordered busing in Charlotte, North Carolina, and the Nixon tapes case. Is it entirely coincidental that these sections are flattering to his friend Brennan and unflattering to the Chief Justice?

Lewis is among the few journalists who have had regular access to the Justices and to their thinking. One of the Justices with whom he is particularly close is Justice Brennan. During the preparation of our book, we came to share much of Lewis’s respect for Brennan. But we cannot share his perception that the proper role for journalists is as a press officer and official apologist for the Court.

Lewis is correct on one point. Justice William O. Douglas, not Brennan, wrote the 1963 case Brady v. Maryland. The miscitation is one of three in our 467-page book. We note that in Lewis’s considerably shorter review, he mistakenly identifies Alexander v. Holmes County Board of Education as Green v. School Board.

Scott Armstrong
Bob Woodward

The Washington Post

Washington, DC

Anthony Lewis replies:

One firsthand witness to the disputed aspects of the Moore case was a law clerk to Justice Marshall in the 1971 term. He was interviewed for The Brethren and may well be one of the “additional sources” claimed by the authors for their story. I therefore begin this reply with what the former clerk said when I telephoned and asked about Moore:

“When the case was about to come down, one of the Marshall clerks—namely me—asked Paul Hoeber whether Justice Brennan might not switch and give us a majority. And after he checked, the answer was no.

“I never saw Hoeber ‘shaken,’ as the book says. Nor would I have forgotten any flurry about vote-trading or anything like that.

“Before the book I did talk to Scott Armstrong here. I don’t remember the conversation about the Moore case; but if he had said to me that Brennan refused to change his vote for that reason, I would have said that I had no idea why he didn’t change his vote. It wouldn’t have occurred to me that such a story about Brennan was true.

“Aside from this several things have happened since that have really puzzled me. One is that I got a phone call from Armstrong after the book was out….

“The surprise came when he asked me whether I had any files on my year with the Court. And I was surprised because, with any decent recollection at all, he would have remembered or known that I had nothing by way of papers or anything else except memory—known from our previous conversation, which was in person. I had the sense that he was looking to find a clerk about whom he could say, ‘That clerk had a file.’

“The Los Angeles Times had quoted them as saying they had a clerk with a diary [of the Moore term]. So I thought they might have been looking around for one, and I was very disturbed by that kind of call. It was totally different from my first conversation with Armstrong, which had been pleasant….

“Stupidly, I didn’t take notes of our conversations. I suppose that, like many people of my clerkship vintage, I relied on Woodward’s reputation, and I’ve been disappointed since.”

In the 1971 term the justices had among them thirty law clerks. I reached all thirty by telephone and asked about the Moore case. Their verdict on the story told by Woodward and Armstrong was overwhelmingly negative. The prevailing tone of their comments was disbelief, verging on contempt.

The clerks who had personally worked on the case or had any direct knowledge of it all flatly rejected the story. Many of those without personal knowledge said they found it inherently “implausible” or “bizarre”; others said that they knew nothing to support it, had not been asked about it by Woodward or Armstrong, or had not talked with them at all. One said that he had heard such a story but could not recall where and had not mentioned it to the authors.