The Brethren: Inside The Supreme Court: Review

The Brethren – Inside the Supreme Court: Book Review

The Brethren, co-authored by Bob Woodward and Scott Armstrong, is an in-depth documentary of the United States Supreme Court from 1969 to 1975, under the leadership of Warren Burger. The book attempts to present the reader with what "really" goes on in the Supreme Court. It describes the conferences, the personality of justices, and how justice's feel toward each other, items which are generally hidden from the public. This book is comparable to a lengthy newspaper article. Written more as a source of information than of entertainment, The Brethren is the brutal truth, but not boring. The storytelling is clearly slanted against the Burger court but the overall quality of the work makes
the bias forgivable. Readers learn how the members of the Court see their mandate and also see the enormous role the clerks play in shaping the rulings of the Court.
The Brethren shows the flowering of Nixon's four judicial selections: Warren E. Burger, Harry A. Blackmun, Lewis F. Powell, Jr., and William H. Rehnquist. The final chapter introduces President Ford's only appointment, John Paul Stevens. Burger was Nixon's first appointee, replacing retiring Chief Justice Earl Warren. By the late 1960s, federal courts and school districts were struggling with court ordered busing. Once Burger joined the court, the longtime Nixon friend clearly showed an interest in moving away from these liberal decisions. However, Woodward goes to great lengths to illustrate how Burger's indecision, lack of tact, poor legal reasoning and overall gauche demeanor hampers his own effectiveness.
The book takes heavy aim at what author feels are Burger's negative personality traits. The Chief's pettiness manifested itself to Rehnquist, who was intellectually a natural ally. As the junior justice, he was obliged to organize the Court's 1975 Christmas Party. Rehnquist approved a play put on by the clerk's in which all the justices by the Chief found amusing. Burger circulated a memo graciously thanking Rehnquist for his work on the party. However at the next opportunity of case assignment's the junior justice found himself given only one: an insignificant Indian tax dispute.
Woodward describes time and time again cases where the Burger would switch his vote to a majority's just for the purposes of assigning the majority opinion.
Also as Chief Justice, he would wait to vote until all the other Justices have cast theirs. At first, he used this tactic to influence the scope and direction of the decision. The book describes how Burger changed his conference votes so he could assign the majority opinion of the court, angering William Douglas and William Brennen. He also describes how Thurgood Marshall greeted Burger "Hey chiefy baby", getting a kick out of making him feel uncomfortable. The reader sees how Harry Blackmun agonized at being considered Burger's "boy" which eventually led to his breaking away from the conservative wing of the court. Woodward also tells of the lack of respect the justices had for the abilities of Chief Justice Burger, who wrote poorly reasoned opinions that embarrassed some members of the
court.
The book shows how justices grow into their roles, either as a dealmaker or dissenter or leader. This process sometimes takes many years. Justices mature and see themselves more involved in the process They learn the benefit of ruling narrowly, because the longer they sit on the court, the more likely their own words will come up either for or against regarding a pending case. The main thesis of the book is how the moderates control the opinions of the court. A majority opinion must have the vote of at least five members of the court, therefore the opinion becomes a compromise between the author of the opinion and his joining brethren. Even when an ideologue writes an opinion, his opinion must be amended to maintain the votes of his brethren. Therefore, the majority opinions of the court usually reflect a somewhat moderate solution, as compared to the ideological make-up of the court.
The Brethren also relates how politics play a key role in the decisions of the court.
Justices have predispositions to every case they decide, and most have an ideology that influences their decisions. The role of the moderates on the court is also an example of how politics effects the decisions of the court. If a president is able to appoint enough justices of his political persuasion, the court's ideological make-up will change, as will the direction of the court's decisions. Justices on the court do worry about the effect of new appointments to the Supreme Court. When President Gerald Ford appointed Justice John Paul Stevens to the court to replace Justice Douglas, Brennen and Marshall worried about the future of abortion and busing, fearing a new conservative justice might vote to overturn or limit the scope of decisions in these areas. These are a few examples of the role of politics in the Supreme
Court.
The book also tells the sad story of the legendary Justice William O. Douglas. Appointed by FDR in 1939, he clearly made a unique and voluble mark in the law during his distinguished career. No other Justice to date has written more majority opinions as well as dissents. By the 1970s he was in his seventies and his colleges noticed that his opinions lacked the intellectual power compared to earlier ones. One New Year's Eye in 1974 he suffered a debilitating stroke, however for ten agonizing months he refused to retire. Woodward describes his tragic decline, made all the more public by Douglas's own persistence and inability to face his health situation. One reason Douglas insisted on staying was because his successor would be selected by President Ford. Ford had led the move to impeach him in the House of Representatives six years earlier.
The book was interesting for me, because prior to reading it I did not know much about the Supreme Court. I wanted to finish the book so I could find out what the ruling would be on a particular case, and whether certain justices would retire or not. It seems that Woodward had access to information that all members of the court did not. Gossip was a major part of this book. William Douglas privately referred to Thurgood Marshall as a "spaghetti spine," and very few members of the court wielded a great deal of respect for Chief justice Burger. When Lewis Powell first arrived on the court in 1971, Potter Stewart informed him that "The leadership was not Burger. He was Chief Justice in name only." The justices who actually controlled the court's decisions were the swing votes, the justices in the center. If anyone ever asks me why the United States judicial system is so inefficient, I will tell them to read The Brethren.
In the Supreme Court, no case is an easy case, and no decision ever comes quickly. Some issues, such as abortion, were not settled in the Burger court, and are still not settled today. The decisions made by the court are too difficult to be made by nine men. There is too much work to be done on a single case, and many times the clerks contributed more to an opinion that the justices themselves. The clerks and secretaries were often mistreated by their superiors, but they worked hard and thought like their bosses hoping for advancements in the future.
The Brethren is very well written and was worth reading though I had to skip some sections. The strengths of this book include its in-depth view of court personalities, antidotes, and relationships between the justices. These are aspects of the court normally not made public. Another strength of the book is its description of how cases are decided, and how a court is "built" (a majority opinion). Further, the reader gets an understanding of the factors that influence a court's opinions such as ideology, compromise, persuasive arguments, and even interaction with the clerks. It could be used as a textbook for a course on the Supreme Court. Trust in the political system was both strengthened and weakened by this book. I was impressed by how difficult it is to confirm an appointment to the Supreme Court. Not just anyone can become a Supreme Court justice, but selection is limited to political insiders who don't always know what America is all about. A book like this keeps Washington on its toes. It reminds politicians that someone is always watching, and even the closest colleague may be willing to talk. The average American probably wouldn't read this book. If they did, they would only pay attention to cases that could possibly pertain to them. It could definitely make some readers angry and confused, causing them to question the whole political system.