Saturday, February 27, 2010
The Brethren by Bob Woodward & Scott Armstrong
The chaos of his first half term gave [John Paul] Stevens reason to pause. At conferences the Chief read verbatim from clerks' memos and tried to avoid committing himself to a position until the last minute. Brennan's bitterness at the direction of the court's decisions made him a voice crying in the wilderness....Stewart was hard-working but distracted. Marshall parroted Brennan. Blackmun was tormented and indecisive, searching for a way to duck issues or narrow the opinion as much as possible. Rehnquist was clearly very intelligent and hard-working but too right wing. His willingness to bend previous decisions to purposes for which they were never intended was surprising, but Stevens also liked Rehnquist. Powell seemed the most thoughtful, the best prepared, and the least doctrinaire. White was the most willing to discuss an issue informally before it was resolved, but he could become unnervingly harsh. The absence of intellectual content or meaningful discussion at conference was the most depressing fact of court life. Stevens thought that the nation's highest Court picked its way carelessly through the cases it selected. There was too little time for careful reflection. The lack of interest, of imagination and of open-mindedness was disquieting.
I found The Brethren both fascinating and troubling. The book offers an in depth look at the Supreme Court from 1969 to 1975. Woodward and Armstrong did a fantastic job at getting behind the scenes, mostly talking to former clerks, and tell the story of each term. The start of the book deals with the Court's transition from the Warren Court to the Burger Court when both Earl Warren and Abe Fortas retire. Nixon appoints Warren Burger, as Chief Justice, and Harry Blackmun to take their places (which made the lineup Burger, Blackmun, William O. Douglas, Bill Brennan, Thurgood Marshall, Potter Steward, John Marshall Harlan II, Byron White and Hugo Black).
From there the story tracks the ongoing struggle to control the Court's direction. The Warren Court was famous for championing civil rights, most notably the Brown v. Board decisions, and generally had more liberal leanings. Burger's appointment, however, was intended to put the Court on a more conservative course, though I don't think it was as successful as Nixon would have hoped. Burger, especially, was a poor choice, at least according to The Brethren. Consider the following passage:
...Potter Stewart knew what it meant to be a Chief Justice. A Chief must be a statesman, a master of the Court's internal protocols, able to inspire, cajole and compromise, a man of integrity, who commanded the respect of his colleges. But, most of all, a Chief Justice had to be a student of the nation's capital, able to see the politically inevitable, willing to weigh the Court's destiny against other Washington institutions.... Warren Burger was none of these things. He was a product of Richard Nixon's tasteless White House, distinguished in appearance and bearing, but without substance or integrity.
Over and over, Woodward and Armstrong give examples of Burger being an incompetent buffoon at best, a disingenuous threat to justice at worst. At one point they just come out and say it: "The Justices found themselves entering the clerks' longstanding debate: Was the Chief evil or stupid?" To be fair, my impressions are based totally on the picture that the authors paint, but my impression is that Burger did not have the intellectual or diplomatic chops to be an effective Chief. One of the most important jobs the Chief has is determining which justice writes each opinion, if he is in the majority. If the Chief is not in the majority, the senior justice in the majority assigns the opinion. Apparently Burger would consistently withhold his vote (traditionally at conference the Chief votes first) so that he could side with the majority and assign the opinion, even going so far as to change his vote later so that he could assign (this might not seem like such a big deal, but the book details the significant effect that the author of an opinion can have). His clerks did most of his work for him and he could not even be counted on to read a several page summary of cert petitions, requiring his clerks to distill them down to one page and highlighting the important parts. He was a terrible writer and struggled to understand both the issues in cases and his colleagues' positions on them.
Though Burger's failings were illuminating, the more interesting theme, at least to me, was the way that he drove the Court to the left. Before I started reading this book I had always gotten the impression that both the Warren and Burger Courts were pretty liberal while the Rehnquist court was more conservative. I mean, the Burger Court's most famous decision is Roe (you've probably heard of it. it's about fundamental rights). But turns out Burger himself did everything he could to be right in step with Nixon. Nixon's next two appointees (Blackmun and Powell), however, became pivotal centrist votes, and Brennan was certainly pleased to have them move his way. When Blackmun was appointed, people called him Burger's "Minnesota twin" because they both grew up there and everyone anticipated Blackmun to follow Burger's lead when it came to deciding cases, but Burger's style and Brennan's coaxing brought him further and further left (Blackmun wrote the Roe opinion, for example). Not until Nixon put Rehnquist on the Court did Burger have another sure thing conservative vote. This struggle climaxed during the writing of United States v. Nixon. In this case, the Court decided that Nixon must turnover the Watergate tapes, but the reasoning was almost as important as the ruling itself. Burger assigned the case to himself and basically did a crappy and deceitful job of it, which prompted the other justices to mutiny and take the opinion from him, piece by piece.
That was the fascinating part. The troubling part was getting a view into how many cases were ultimately decided. Often the principles and legal arguments did not carry as much weight as maneuvering and bargaining among the justices and whatever personal agenda prevailed. I guess it shouldn't be so surprising (I certainly got the impression that the Court often made things up as it went along when I took Con Law) and it might just be the only way to do things, but for someone who wants to respect the Court and desires it to be a bastion of truth and reason even when it decides a case the other way, this realization was a little disappointing. Nevertheless, this was a great book and I encourage you all (especially you current and future law students out there) to read it.
Back in the day, the Justices got to watch a lot of porn. Didn't even need the internets.
Posted by billy at 6:50 PM