Trashing the Supreme Court

Ronald Dworkin

  • The Bretheren: Inside the Supreme Court by Bob Woodward and Scott Armstrong
    Secker, 467 pp, £7.95, March 1980, ISBN 0 436 58122 1

This is a great best-seller in America. But it is a deplorable book – mostly silly gossip about the various Justices of the United States Supreme Court in the period from 1969 to 1976, supposedly taken from internal court memoranda never intended to be published, and from off-the-record and not-for-attribution talks with former law clerks about the Justices and with the Justices about each other.

The book may have permanently changed the relationship between the clerks and the Justices. These clerks are outstanding recent graduates of prominent law schools who are selected to serve as assistants to Supreme Court Justices for a year. The Justices, by convention, talk freely to their own clerks, and the clerks of different Justices act as an informal information centre and sometimes as emissaries negotiating points of opinions. The relation between clerk and Justice is typically intimate – many Justices have said that they come to regard clerks as sons and daughters – and is in every case supposed to be based on confidentiality. Woodward (the famous hero of Watergate journalism) and Armstrong, his colleague at the Washington Post, apparently succeeded in shattering that confidentiality, for most of their ‘inside stories’ (if true) come from among the 170 former clerks they say they interviewed.

I say ‘if true’ because none of what Woodward and Armstrong report is supported by any reference to any specific source. They ask us to assume that their various stories of judicial stupidity, incompetence, duplicity, vote-trading, backbiting and manipulation are backed by a record they are not free to reveal. They affect a novelistic style that does not encourage our confidence in this record. They tell us countless times, for example, that a particular Justice was ‘worried’ or ‘outraged’ or ‘mortified’ or ‘bewildered’ in the privacy of his own chambers with no one else about – and the most frequent subject of these psychological inventions is Chief Justice Warren Burger, who, the authors admit, refused to talk to them at all.

Assassination by non-attribution is sordid, and the most unattractive aspect of this book is the campaign it conducts against Chief Justice Burger. Every few pages offers some unsubstantiated attack on Burger’s intelligence or honesty. Other Justices are described as astonished by the quality of Burger’s work – they are reported as saying that it would not receive a passing grade in a law class – or furious at some abuse of his power as Chief Justice to assign opinions, or dismayed by some embarrassing administrative decision like his lectures to the clerks instructing them that they would be fired if seen talking to reporters. The authors’ description of the oral argument in the Nixon Tapes case hints – though it does not say – that Burger’s principal concern was with whether disclosure of the tapes might reveal conversations between himself and the President. At a Saturday informal lunch with some clerks, three Justices are reported to have entered into what is described as the clerks’ ‘longstanding game’ of trying to decide whether the Chief was evil or stupid.

Neither the Chief Justice nor any of the Justices whose opinions are supposedly reported is in any position to reply. A Supreme Court Justice cannot hold a news conference to discuss whether or not he joined a discussion about whether the Chief Justice was evil or stupid. But Anthony Lewis, writing in the New York Review of Books, said that his own research cast great doubt on some of the most sensational ‘disclosures’ of the book. (Woodward and Armstrong have now replied to Lewis, but his research seems more careful than theirs.)

Irresponsibility is not the book’s only fault. It does offer capsule summaries of dozens of important Supreme Court arguments and decisions – I would be amazed if many readers ploughed through them all. But the authors’ understanding of constitutional law is crude. They mistake the facts and law of several cases, and reduce intricate issues about the allocation of political power in a federal system, for example, to a simplistic spectrum of left-right-centre political sympathy. (The death penalty cases are described as turning on how much each particular Justice was worried about the several hundred prisoners waiting to be executed.) Much of what is plainly just gossip is banal, and some is tasteless, like the clinical and embarrassing details of Mr Justice Douglas’s infirmities following his stroke.

It might be said, however, that this poor book is nevertheless an important event, because it breaks the long-standing taboo about investigative reporting of the Supreme Court, and so opens the way for better books to follow. There is plainly something in this. The courts – and above all the Supreme Court – are part of government, not holy institutions divorced from secular political power. It is, after all, the Supreme Court that decides whether capital punishment shall be permitted, or abortions allowed, or pornography protected from censorship, or schoolchildren bussed long distances to secure racial integration in schools. No institution that decides questions like these should hide behind the censorship of courtesy. The shock of many lawyers, who were appalled at the idea of an ‘inside story’ about the Court, was misplaced.

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