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.”
The method of The Brethren is chronological. Each chapter treats a Court term, taking a number of cases and following each from the conference at which the justices discuss it and take a preliminary vote through the exchanges of draft opinions and personal negotiation to the final outcome. The prose resembles that used by Woodward and Bernstein in The Final Days: a deadpan recitation of facts as viewed by the all-seeing eye, with no intake of breath no matter how startling the material: Nixon prays, Burger plots. The reader is told what the members of the Court allegedly think and feel from moment to moment, with never an indication of a source for that knowledge: “Stewart considered Burger’s position bizarre….” The authors seldom draw conclusions or interrupt their successive declarative sentences for analysis of history or constitutional doctrine.
Just the facts. And they can be interesting facts to the extent that we can rely on them. The most intent Court-watcher, however shrewdly he or she has pieced together clues in the opinions to get a sense of the give-and-take that occurred among the justices, will find here concrete details not previously known. Some of the most interesting disclosures, for me, concern the school segregation cases of the period, especially the important 1971 decision upholding court-ordered busing in Charlotte, North Carolina. The opinion, by Chief Justice Burger, was for a unanimous Court. But Woodward and Armstrong indicate convincingly that Burger at first wrote an anti-busing opinion but transformed it under pressure from his colleagues over a four-month period.
An even more dramatic example of a Burger opinion being shaped by other hands is in the Nixon tapes case. There were reports at the time of backstage differences before the final result. But Woodward and Armstrong show in detail how the other justices, dissatisfied with the Chief’s draft, parceled out various sections among themselves, wrote their own drafts and got his agreement—reaching a unanimous judgment in the momentous case in just sixteen days from oral argument to decision.
The Nixon case, as described here, is one in which the process of the Supreme Court worked well. The justices somehow found themselves able to put aside personal feelings and collaborate to shape a persuasive opinion of the Court. One of the important critics of the modern Supreme Court, the late Henry Hart of the Harvard Law School, used to deplore its lack of what he called collegiality. In United States v. Nixon the Court was collegial. And the Nixon case is not the only one described in this book that offers reassurance about the judicial process. On the whole the justices appear as serious, committed men—imperfect, inevitably unequal to their extraordinary legal-political function but struggling, careful, never cynical.
Yet this book has generally been taken as a devastating attack on the Court, a sensational exposé of the unworthy. The popular sense of it was fairly represented by an article in The Observer of London, which said: “Last week the cover was blown off [the Supreme Court’s] respectability by a book called The Brethren, giving an insider’s view…that is unflattering and deeply disturbing.” Why the discrepancy between that impression and what I think the book actually shows about the process of the Court?
One reason is that the authors, perhaps to show how far inside they got, or to spice up their unsensational material, have made a point of including numerous examples of judicial bad temper and bad language. Thus we have a justice saying, “You bet your ass,” or making an obscene gesture. All this has nothing to do with anything. Woodward and Armstrong seem to think it is news that feelings are strong inside the Court, that the process includes bargaining, that those who lose may regret it. It is not news. A Supreme Court justice has to spend his life with eight other people who may seem to him wrong-minded or dense on issues that he cares about deeply and on which the Court has the last word. The frustrations must be greater than most of us can imagine bearing. What is surprising is not that there are flare-ups of temper, as there always have been, but that the justices get along as well as they do.
When Woodward and Armstrong see an association between two justices of different outlook, they smell politicking. That may be, but there may also be friendship and mutual respect that surmount ideological differences. Hugo Black and John Harlan, who could not have been more different in background and ideology, had that kind of feeling for each other—so much so that, when both lay dying, Harlan told Black’s son that he wanted to let Black retire first, alone, and get the public recognition he deserved.
The publicity accompanying the book has also distorted its contents by emphasizing the personal attacks: especially those on the book’s principal villain, Chief Justice Burger. “Sixty Minutes,” which did a segment on The Brethren the day serialization began, concentrated on what Mike Wallace called its “shattering view of the Chief Justice.” Wallace asked Armstrong what Justices Powell, Stewart, and Byron White thought of Burger. The answer was: “They have a low opinion of his intellect. They have a low opinion of his willingness to work toward a consensus in the Court, and they have a low opinion of his level of effort.”
The views of Burger attributed to these and other justices in this book are indeed harsh. A considerable case seems to me to be made that the Chief Justice plays tricks with the assigning of opinions. A bland inconsistency or disregard for principle that is sometimes observable in his published opinions is shown to have roots in the earlier stages of decision. He appears as a man more dignified than serious. But the objections to his performance are fundamentally those that critics might make, and have made, on the basis of the public record. And liberals who do not like Warren Burger as Chief Justice might worry about some of the attacks on him here. During the deliberations on the Nixon case, the book says, Justices White, Stewart, and Brennan had lunch with four clerks one Saturday—and talked critically about drafts that Burger had circulated in the case. Then comes this paragraph:
“The Justices found themselves entering the clerks’ longstanding debate: Was the Chief evil or stupid?”
To write such a sentence—without comment and without follow-up—is simply character-assassination. There are other attacks on Burger that spring naked out of the text. And he is not the only victim of hit-and-run journalism. The book says one justice’s wife “had a drinking problem.” The justice wrote Newsweek, which had printed the statement, that at the time mentioned his wife had been a complete teetotaler for six years, and has remained one since.
The larger question is whether the accounts of what went on in particular cases can be believed. The authors’ treatment of Moore v. Illinois indicates some reasons for doubt. Another reason is the number of mistakes, some of them raising questions about the authors’ understanding of what they describe.
In describing the Court under Earl Warren, the book omits from the liberal majority Justice Black, the intellectual leader of that majority, the most determined force for change. In discussing the first case on special university admissions procedures for minorities, DeFunis v. Odegaard, the authors say Justice Douglas wrote an opinion “saying that race could be taken into account in selecting candidates.” In fact Douglas’s opinion said that race as such could not constitutionally be considered in admissions, although he raised questions about cultural bias in testing.
The Supreme Court as a subject should not be reserved to scholarly writers. Even journalists who have covered the Court regularly may get too close, too protective—as with other Washington institutions. A little lese majesty may be a good thing. But still, reading this book, one yearns for a sense of history, a degree of sophistication. Simplistic storytelling has its limits. Sometimes, too, the accounts of what happened among the justices before their decisions were published lack crucial elements. The book says, for example, that the justices were badly split in Muhammad Ali’s draft case (Clay v. US) until Stewart proposed that the Court “simply set Ali free, citing a technical error by the Justice Department.” But it does not say what the “technical error” was, thereby leaving the impression that there was something illegitimate about that disposition of the case when in fact one of the Court’s high functions is to make government obey the rules even when the public dismisses them as “technicalities.” The book traces an important Mississippi school case in which the Court in 1969 said the time for “all deliberate speed” in ending segregation was over (Green v. School Board). But the discussion leaves out parts of the process in which the minds of the justices may actually have been changed by argument, and says only that two days “were a whirl of paper. Drafts and counterdrafts of proposed orders floated around….”
The Brethren is most convincing when it relies on documents, as in the Nixon case. When it purports to give verbatim accounts of conversations or of discussions in the conferences of the Court, at which only the justices are present, it becomes hard to believe. Most of the accounts seem to be second- or third-hand, perhaps relayed by a clerk from his justice’s rough conference notes.
The discussion of the Nixon case is based very heavily on a seventy-seven-page record of the case obtained from the files of Justice Brennan—a collection of the circulated documents in the case. Brennan makes it a practice to keep such records of all cases in which he wrote the opinion of the Court or contributed substantially to the opinion-writing process. How did Woodward and Armstrong get these seventy-seven pages? In my view that is a question with important ethical implications.
A natural inference, one that has been drawn by some commentators, is that Brennan himself gave the authors the Nixon material. On “60 Minutes” Mike Wallace said: “William Brennan will be referred to as the Deep Throat of the Supreme Court. Does he know that you have it?” Armstrong replied: “I think we’d rather not answer that.”
Now Justice Brennan is well known for his strong belief that the private discussions of the Court should remain just that: private. I think the chance that he gave the Nixon record to Wood-ward and Armstrong is just about zero. My guess is that he has never met either of them and refused to speak with them even on the telephone. If I am right, Armstrong’s answer to Wallace was an attempt to let viewers believe Brennan was a source when he was not. Does the code of investigative journalism really forbid the modest decency of an honest answer to such a question?
According to Fred Barbash of the Washington Post, “at least five Supreme Court justices aided one way or another in the breach of court secrecy that enabled authors Bob Woodward and Scott Armstrong to write The Brethren.” Barbash’s article, published soon after the book came out, said five justices “assisted them in obtaining access” to former law clerks. The authors, in their introduction, say they had interviews with “several justices.” But those vague words do not necessarily mean much. If a member of the Court considered the names of his past clerks to be a public matter and instructed the Court’s information officer to give Woodward and Armstrong a list, does that mean he “assisted” them? “Several” justices may have been interviewed but limited themselves to general comments or non-private matters. Internal evidence in the book suggests to me that only one member of the Court gave the authors substantial help in discovering matters that had been private.
Law clerks are clearly the main non-documentary sources. Woodward and Armstrong say they interviewed “more than 170.” Reliance on them produces a distortion in the book, an exaggeration of their significance. When Justice Blackmun showed a draft of his abortion opinion to one, “The clerk was astonished. It was crudely written and poorly organized.” Comments such as that one—and there are many—make the current Supreme Court law clerks seem a group of insufferable prigs, swimming in self-importance. Whether that is their fault or the book’s one cannot know, but certainly the authors give more emphasis to the clerk’s-eye view than it deserves. We even have the edifying anecdote of a clerk, surprised when others rise for the Chief Justice’s arrival at lunch, remarking: “You’ve got to be shitting me.”
The real question about the law clerks as sources is the effect the book will have on the relationship between clerks and justices. It has been a remarkably intimate relationship in most cases. The clerks have been especially useful in keeping the justices in touch with new scholarly ideas and challenging long-held convictions. (The willingness of a good judge to accept such challenge is touchingly described by Woodward and Armstrong in the case of Justice Powell.) But how can such intimacy survive if every time a judge lets off steam at a colleague he has to worry about seeing his words in print? Even more troubling is the delivery of documents, such as the materials in the Nixon case. Someone took those papers from Justice Brennan’s files, copied them, and delivered them to Woodward or Armstrong. It need not have been a Brennan clerk; some Court employee, a guard or messenger, might conceivably have been persuaded to do the job. But the possibility that it was a clerk may well affect the openness of relationships in that office.
Then there are the relations among the justices. The Nixon case went as well and as quickly as it did because members of the Court were able to work together easily. Will the process be as collegial the next time, as unconstrained, if the justices have to worry that their attempts at negotiation and drafting are being recorded for early publication? Or will the effect be to formalize the process even more, to isolate the nine in their individual chambers?
The Supreme Court will survive this episode as it has survived in history many more direct challenges to its legitimacy. The effect of The Brethren will quickly fade away. But if such a book were more than a passing phenomenon, if it were to be repeated every few years, then I think the internal confidence that enables the Court to perform its formidable role in American society would be seriously affected. Everyone enjoys reading gossip about the great. The question is whether writing it is justified.
The authors, evidently conscious of others’ doubts about their enterprise, offer two justifications in the introduction to the book. One is that the Court is less disposed than the elected branches of government “to allow its decision making to become public” and “has by and large escaped public scrutiny.” That is a glib argument, and a false one. While the Court considers its decisions in private, the arguments made to it, written and oral, are entirely public; anyone who goes to that court-room to hear a case argued knows that he is in one of the last places in Washington where claimants speak directly, openly to those who will decide their claim. Then the Court, unlike Congress and the Executive, publishes all its decisions and the reasons for them. And the decisions have hardly “escaped public scrutiny.” The recent press cases, abortion, segregation, school prayer, criminal law: These and others have been the subject of intense public and political debate. The Court stands—or falls—on what it says in its printed opinions, not in its private discussion.
The second justification offered by the authors is as follows: “Much of recent history, notably the period that included the Vietnam war and the multiple scandals known as Watergate, suggests that the detailed steps of decision making, the often hidden motives of the decision makers, can be as important as the eventual decisions themselves.” But what Seymour Hersh, Woodward, Bernstein, and others uncovered in those years were actions that gravely affected human beings and that otherwise would have had no public scrutiny: secret wars, crimes, cover-ups. The Supreme Court does not carry out secret wars. Its actions are public.
Nor does Watergate stand for the proposition that privacy has no value, that exposure is always justified. The invasion of Daniel Ellsberg’s privacy was indeed one of the acts that, when discovered, helped to bring Richard Nixon down. The moral of the tapes case was not that everyone is entitled to know what goes on in the Oval Office; it was that a president’s rightful expectation of privacy can be breached when there is a demonstrated interest of law enforcement. And for the press, the point of Watergate was the value not of exposure for its own sake but of exposing governmental corruption, criminality, and abuse of power.
The only allegation of corrupt or illegal conduct made in The Brethren is the charge that Thomas G. Corcoran, the Washington lawyer, called on two members of the Court privately to plead for a client; both justices threw him out. That event certainly justified investigation and publication. Then there is the pathetic tale of Justice Douglas’s attempts to stay on the Court after a disabling stroke and even after his retirement—attempts that the Court in general and Chief Justice Burger in particular handled with admirable concern for the institution and the man. Readers may decide whether any purpose other than titillation was served by publishing this material during Douglas’s lifetime.
There is no suggestion here of what the press found in Watergate and Vietnam: corruption of the institution. One senses that Woodward and Armstrong expected to find something of that kind—improper Nixon influence on the Court, perhaps—but were disappointed.
In a forum at Harvard recently Woodward, asked critical questions about the book’s impact on the Court, responded: “You can’t, as a journalist, sit there and say, ‘What are the effects of this going to be?’ ” Walter Burns could not have said it better. The story always comes first. Why did we expose the Supreme Court? Because it was there.
Anyone who worries about such things is likely to appear, these days, as a fuddy-duddy. So be it. Some of us remember when Earl Warren warned congressional investigators against “exposure for exposure’s sake”—and liberals applauded. So did they applaud Supreme Court decisions limiting the government’s use of anonymous informants in loyalty-security cases. The press has to use unidentified sources sometimes, when there is no other way to get at matters of particularly urgent public concern. But this book is something else: anonymity wholesale. The authors defend the technique vigorously. Woodward told Newsweek it was “bulls—” to think that a statement could be “pure” only if it was on the record. “We checked everything,” he said. “The book presents a consistent whole, using standards which rise above the Washington Post, Newsweek, or Arthur Schlesinger.” But a book by Schlesinger or any other historian identifies its sources so the reader can make his own judgment of their knowledge, their motives, their reliability. That is not possible in The Brethren.
Reading this book, one senses a desire to bring a lofty institution down to the unheroic level of all others in these unglorious times—to show that Supreme Court justices are human in their faults and ambitions. That, too, has happened to the Court before, and it has survived. In 1913 Mr. Justice Holmes spoke what might have been an epitaph for The Brethren:
“[I]n these days no one can complain if any institution, system or belief is called on to justify its continuance in life. Of course we are not excepted and have not escaped. Doubts are expressed that go to our very being…. [W]e are told that we are representatives of a class—a tool of the money power. I get letters, not always anonymous, intimating that we are corrupt. Well, gentlemen, I admit that it makes my heart ache. It is very painful, when one spends all the energies of one’s soul in trying to do good work, with no thought but that of solving a problem according to the rules by which one is bound, to know that many see sinister motives and would be glad of evidence that one was consciously bad. But we must take such things philosophically and try to see what we can learn from hatred and distrust and whether behind them there may not be some germ of inarticulate truth.”
February 7, 1980