Like the Cosa Nostra and the Vatican, the U. S. Supreme Court is an institution of vast influence which nevertheless gets to operate largely under the media radar. It isn't often one gets to peak behind the curtain.
Give authors Bob Woodward and Scott Armstrong points for not just getting such exclusive access, but using it so well.
Covering the years 1969 to 1975, The Brethren documents a time of significant transition, both on the Court and in the wider sphere of American life.
Covering the years 1969 to 1975, The Brethren documents a time of significant transition, both on the Court and in the wider sphere of American life.
As the book begins, Earl Warren, the legendary liberal lion appointed to lead the Court in 1953, is stepping down. President Richard Nixon, who has just run successfully on a platform critical of the Warren Court, seems ready to stem the steady tide of school desegregation, criminal rights expansion, corporate regulation, and other issues dear to the American left. So when he appoints Warren Burger, who has a name and not much else in common with his predecessor, the fear is Burger will create a new Warren Court utterly different from what came before.
Ironically, the Burger Court wound up outdoing the Warren Court in recalibrating America along liberal lines. No one argues much today about the merits of the landmark Warren case, Brown v. Board of Education, but the Burger Court's decision on Roe v. Wade hasn't lost its argument-producing force one jot. Likewise, the Burger Court went beyond the Warren Court in terms of race-based schooling, not only banning segregation but backing a district-court ruling that required forced busing. The Burger Court's ruling on Furman v. Georgia effectively banned capital punishment for a time, until pressure from the states brought it back under more limited circumstances.
As The Brethren tells it, all this had little to do with Warren Burger himself, neither a liberal by inclination or intent. He wasn't much of a unifier either. "To suggest that he can bring the Court together – as hopefully a Chief Justice should – is simply a dream," said an unnamed appellate court judge who reportedly worked with Burger. Burger's judicious response, reported here, was to claim he knew who the guy was and would punch him in the nose if he could prove it true.
For liberals, of which the Supreme Court was amply stocked both in terms of Justices and their clerks, Burger was a disgrace for the way he corrupted the decision-writing process, siding with the winning team even when he disagreed with the ruling – just so he could name himself the decision-writer and produce a watered-down finding.
"If an associate in my law firm had done this, I'd fire him," Justice Lewis Powell is said to have commented on Burger's draft for a Detroit forced-busing case.
The takeaway in The Brethren is so relentlessly negative on Burger it begs the issue of fairness, but it also provides a piercing narrative focus that gives the book both its thematic thrust and sense of purpose. It could be argued the Supreme Court in this book works not around the Constitution but rather around nine different personalities with healthy egos and varying philosophies, and Burger serving as pivot point and (often) common source of scorn. The Brethren creates a dynamic version of history that may not be 100% accurate but certainly feels real.
Fourteen Justices are covered in the book, some very briefly (Abe Fortas, a Lyndon Johnson appointee, had to resign the same year as Warren when questionable business dealings were exposed), others more in depth. Harry Blackmun, the author of Roe v. Wade, is appointed by Nixon as a law-and-order advocate but soon is swayed by the liberals both on and around the Court. He has a tendency to emotional appeals and is easily pressured. Byron White, lone appointee of John F. Kennedy, is a former pro athlete with a tendency for hard-headedness and brushing back his fellow Justices. Thurgood Marshall, another Johnson appointee and the first black Justice, tends to follow the most liberal Justices rather than make his own arguments.
One of the most fascinating examples offered here of personality impacting policy is Hugo L. Black, one of two Burger Court Justices appointed by Franklin Roosevelt. Like his fellow Rooseveltian, William O. Douglas, Black was a strong liberal and committed desegregationist, so much so he forces an early battle in The Brethren by refusing to allow a desegregation delay requested by the Nixon Administration and much desired by Burger. Yet a year later, when Charlotte, North Carolina was ordered by a district judge to implement busing against the will of its school board, Black was a stubborn holdout in the other direction. Busing wasn't fair, he figured, especially for younger children.
A great benefit of The Brethren is that while it deals in a lot of serious legal matters, it doesn't get so tied up in the intricacies as to risk losing the reader. Woodward and Armstrong offer up a lot of compelling detail and dramatic development, as with the physical collapse of Douglas, the most cantankerous Justice who refuses to accept his debility in fear of being replaced by someone less liberal. The role of the clerks also gets much attention; at times I felt Woodward and Armstrong were trying to make clear the excessive influence of clerks on the workings of the Supreme Court, but held back because the clerks gave the authors their best information.
It's too bad Woodward and Armstrong never worked together again; Woodward has had much success with his various books on the American political process but none have quite the zest and color of The Brethren. It may be dated, but it still holds up as a gripping examination of how America's least-understood branch of government really works at its highest level.
Ironically, the Burger Court wound up outdoing the Warren Court in recalibrating America along liberal lines. No one argues much today about the merits of the landmark Warren case, Brown v. Board of Education, but the Burger Court's decision on Roe v. Wade hasn't lost its argument-producing force one jot. Likewise, the Burger Court went beyond the Warren Court in terms of race-based schooling, not only banning segregation but backing a district-court ruling that required forced busing. The Burger Court's ruling on Furman v. Georgia effectively banned capital punishment for a time, until pressure from the states brought it back under more limited circumstances.
As The Brethren tells it, all this had little to do with Warren Burger himself, neither a liberal by inclination or intent. He wasn't much of a unifier either. "To suggest that he can bring the Court together – as hopefully a Chief Justice should – is simply a dream," said an unnamed appellate court judge who reportedly worked with Burger. Burger's judicious response, reported here, was to claim he knew who the guy was and would punch him in the nose if he could prove it true.
For liberals, of which the Supreme Court was amply stocked both in terms of Justices and their clerks, Burger was a disgrace for the way he corrupted the decision-writing process, siding with the winning team even when he disagreed with the ruling – just so he could name himself the decision-writer and produce a watered-down finding.
"If an associate in my law firm had done this, I'd fire him," Justice Lewis Powell is said to have commented on Burger's draft for a Detroit forced-busing case.
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| U. S. Appeals Court Judge Warren Burger (left) is introduced by new President Richard M. Nixon as the next Chief Justice of the U. S. Supreme Court, 1969. While thought to be a reliable voice of conservatism at the time of Nixon's appointment, clarity turned out not to be Burger's strong suit. Image from www.nixonlibrary.gov. |
Fourteen Justices are covered in the book, some very briefly (Abe Fortas, a Lyndon Johnson appointee, had to resign the same year as Warren when questionable business dealings were exposed), others more in depth. Harry Blackmun, the author of Roe v. Wade, is appointed by Nixon as a law-and-order advocate but soon is swayed by the liberals both on and around the Court. He has a tendency to emotional appeals and is easily pressured. Byron White, lone appointee of John F. Kennedy, is a former pro athlete with a tendency for hard-headedness and brushing back his fellow Justices. Thurgood Marshall, another Johnson appointee and the first black Justice, tends to follow the most liberal Justices rather than make his own arguments.
One of the most fascinating examples offered here of personality impacting policy is Hugo L. Black, one of two Burger Court Justices appointed by Franklin Roosevelt. Like his fellow Rooseveltian, William O. Douglas, Black was a strong liberal and committed desegregationist, so much so he forces an early battle in The Brethren by refusing to allow a desegregation delay requested by the Nixon Administration and much desired by Burger. Yet a year later, when Charlotte, North Carolina was ordered by a district judge to implement busing against the will of its school board, Black was a stubborn holdout in the other direction. Busing wasn't fair, he figured, especially for younger children.
A great benefit of The Brethren is that while it deals in a lot of serious legal matters, it doesn't get so tied up in the intricacies as to risk losing the reader. Woodward and Armstrong offer up a lot of compelling detail and dramatic development, as with the physical collapse of Douglas, the most cantankerous Justice who refuses to accept his debility in fear of being replaced by someone less liberal. The role of the clerks also gets much attention; at times I felt Woodward and Armstrong were trying to make clear the excessive influence of clerks on the workings of the Supreme Court, but held back because the clerks gave the authors their best information.
It's too bad Woodward and Armstrong never worked together again; Woodward has had much success with his various books on the American political process but none have quite the zest and color of The Brethren. It may be dated, but it still holds up as a gripping examination of how America's least-understood branch of government really works at its highest level.
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