Supreme Court Confidential

The Brethren: Inside the Supreme Court

by Bob Woodward and Scott Armstrong
Simon and Schuster, 467 pp., $13.95

Warren Burger
Warren Burger; drawing by David Levine

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…

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