The Clerks’ Tale
The Brethren: Inside the Supreme Court.
by Bob Woodward and Scott Armstrong.
Simon & Schuster. 467 pp. $13.95.
The Brethren is, as it claims to be, a term-by-term account of the “inner workings of the Supreme Court from 1969 to 1976—the first seven years of Warren E. Burger’s tenure as Chief Justice of the United States.” Focusing on the major cases decided in each of these terms—cases dealing with abortion, school busing, and Watergate, for example—the authors provide a detailed account not only of the “internal debates, the tentative positions taken by the Justices, the preliminary votes, the various drafts of written opinions, the negotiations, confrontations, and compromises,” but of conversations alleged to have taken place among the Justices and between them and others. Thus, what had been hidden from public view—namely, the Court’s “deliberative process”—is hidden no more.
Whether anyone will benefit from these revelations is of no concern to the authors of this book; they provide no chapter summarizing whatever conclusions they might have come to, and in their introductory chapter they say only that the “hidden motives of the decision makers”—on the Court as well as in the White House and Congress—“can be as important as the eventual decisions themselves.” Hidden motives are there to be uncovered by investigative reporting, and investigative reporters are not required to justify themselves.
What does require justification are the motives of those who talk to the reporters, because investigative reporting consists largely in persuading government officials to make public information intended to be private. It resembles that other Washington art, “leaking,” except that it requires the reporter rather than the official to take the initiative. From the point of view of the reporter, however, this is a distinction without a difference; in each case he is dealing with persons eager or willing to give, at the office or outside it, and what they give can be turned to profitable use. For All the President’s Men Woodward and Carl Bernstein had their “Deep Throat” in the executive branch, and Woodward and his new partner, Scott Armstrong, managed to find hundreds of equally eager informants in the judiciary. From them came the materials for this book. And like “Deep Throat,” whose identity remains a secret to this day (one of the few in Washington), these “Big Mouths,” mostly former Supreme Court clerks, remain anonymous. So far as we know, anonymity is the only payment they demanded, although Woodward and Armstrong, given a year’s paid leave from the Washington Post and a $350,000 advance by their publisher, were in a position to be more generous.
That they were not required to be more generous with them points to another difference between investigative reporting and leaking: the “leaker,” often a competitor for office or preferment but sometimes a “whistle blower” or “trial-balloon floater,” has a motive that can usually be identified (and is not always reprehensible). But why did “more than two hundred people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court,” talk to Woodward and Armstrong? And not only talk to them, but deliver to them “eight file drawers with thousands of pages of documents from the chambers of eleven of the twelve Justices who served during the period 1969-1976”? What did they gain by violating their trust, these clerks? Not fame, for, as I say, we do not know their names. The fleeting pleasure of being thought important by famous reporters? Perhaps. The satisfaction of damaging the reputation of the Chief Justice? Probably. Or, like those who cooperated with Woodward and Bernstein during Watergate, were they told they had to protect themselves by giving “their side” of the story? (But protect themselves from what? And what story?)
They surely could not have believed that, like “Deep Throat,” they were performing a public service. They could “finger” no crooks and they revealed no great scandals—none, that is, involving the Justices. Indeed, the book they made possible tells us nothing about the Court or the Justices that students of the Court did not already know or suspect, nothing other than the petty details: the depth of Brennan’s contempt for Burger, the breadth of the discord among the Justices sitting during this period, and the lengths to which Douglas was willing to go in order to avoid resigning and, even after resigning, before withdrawing from active participation in the Court’s business.
Could they have thought it important that the public know that they, the clerks, are not mere clerks? That their work is not confined to digging out citations or writing memoranda or drafts of opinions, but that they, especially those employed by some of the Justices, sometimes write the actual opinions? Or that they are held in such confidence by their Justices that they are allowed to join in the little plots against other Justices? That in at least one case—involving an involuntary confinement in a state mental institution—they were able to turn a decision against a petitioner into one in his favor? If so, are they proud of the deceit, fully retailed in these pages, which they employed to do it?
Having talked so freely with Woodward and Armstrong, and having been so generous with other people’s private papers, is there any reason to believe they might not talk, or have not already talked, with others? We do know—at least Woodward and Armstrong tell us—that the clerks were regularly leaking information about pending cases to staff members in the Solicitor General’s office (who told the Solicitor General who, in due course, informed the Chief Justice), and that they did this even during the Court’s consideration of the Pentagon Papers case where the Solicitor General was attorney to one of the parties, that is, the United States. Would they also talk to their stockbrokers when, thanks to their privileged position, they had prior knowledge of the decision in, say, an antitrust case? Or to the foreign agents involved when the Court was reviewing a denial of a government application for a national-security wiretap?
It is unnecessary to multiply such examples because each of them would point to the same thing: the necessity of confidentiality. There was a time when we did take it for granted that the “best and the brightest” from the law schools would respect that necessity—another former clerk once wrote of the “remarkable” extent to which the Court takes the law clerks into its trust—but if Woodward and Armstrong are to be believed, we no longer can afford to do that, and some good might come from knowing it. With that in mind, I commend this book to the attention of one or another congressional committee.
It is apparent that the Court has been unable to discipline itself. When some clerks gave Time magazine prior knowledge of the decisions in the abortion cases, the Chief Justice threatened them with lie-detector tests; the clerks accused him of conducting a “witch-hunt,” and nothing came of it. When the Court reached tentative decisions in the 1972 death-penalty cases, Burger asked the other Justices not to circulate the draft opinions and not to discuss them with their clerks. Brennan promptly did so, and Marshall, “with casual glee,” we are told, “lost little time violating Burger’s secrecy mandate.” Burger was no more successful in the Pentagon Papers case: “Unwilling to abide by the Chief’s restrictions that all the material be kept in the conference room, protected by Pentagon security guards stationed outside, Douglas [“the greatest living jurist”] took the material to his chambers and raised no objection when his clerks read the exhibits.” A pretty example of “character and fitness” he set for his subordinates. When the Court was about to begin its consideration of the Watergate-tapes case, the Chief Justice took the extraordinary step of warning the clerks not to talk to anyone about it. “Marshall missed the session, but later got a full report from his clerks. The Chief had made an ass of himself again, Marshall concluded. The clerks told him that the Chief had put an absolute gag on all conversation with anyone [but Marshall] told his clerks it was up to each to decide whether to discuss the case with his wife.” Of course, we have no way of knowing whether any of this is true—we have only Woodward and Armstrong’s word for it, and they cite no sources—but surely we have an interest in learning whether it is true.
What does bear “the indubitable testimonies of its own authenticity,” if I may quote Lincoln in so sordid a context, is the term-by-term account of the way the Court makes its judgments in major, and nominally constitutional, cases. Woodward and Armstrong’s account confirms the impressions gained from a study of the published opinions: the holdings are not derived from constitutional principles; the principles are “developed” or “created” in order to justify the holdings. Thus, we are told, Stewart saw abortion as “one reasonable solution to population control,” and Brennan helped Blackmun (who wrote the majority opinion in the cases) “develop a constitutional grounding for a right to abortion.” This “grounding” proved to be a right to privacy that Blackmun discovered in the Ninth Amendment or in the Fourteenth, and like that character in Iolanthe, he didn’t care which. (Eight years earlier, Douglas, also writing for the majority, found his right to privacy in “penumbras, formed by emanations” from the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments.) To put it briefly, the Justices create their constitution and use the other one only to berate each other.
Instead of seeing themselves as the “faithful guardians” of the Constitution, the role assigned them by the Founders, these Justices see themselves as politicians with constituencies, chosen, as one might expect, according to the prevailing fashions. In its naiveté, Congress may think it necessary to propose a constitutional amendment in order to insure women their equal rights; not Brennan. “There is no reason to wait several years for the states to ratify the amendment”; if only Warren and Fortas had still been on the Court, he could have had a majority for his “landmark” opinion. And so it goes.
At one point, Woodward and Armstrong offer this observation: the Court’s strength, they say, “derived from the public belief that the Court was trustworthy, a non-political deliberative body.” What provoked this observation was a threat by Douglas to publish a scathing dissent (one that would “undermine the Court’s credibility”) if the majority voted to hold over the abortion cases for reargument. Even Brennan, Marshall, and Stewart, sympathetic to his views, were aghast, we are told. “The Chief might be a scoundrel,” they are alleged to have said, “but making public the Court’s inner machinations was a form of treason.” So say our authors in the course of making them public.
Students of the Court have known for some time that it has assumed the role as legislature for the nation, and, as this book reveals, it has done so willfully and knowingly. Such a role was forthrightly defended a few years ago in a Harvard Law Review article in which Professor Abram Chayes contended, among other things, that it is a waste of time for scholars to try to define “what the precise scope of judicial activity ought to be”; that little respect is owed to the principle of the separation of powers; that their very insulation from “narrow political pressures” makes the Justices uniquely qualified to decide public-policy questions; that, while the decisions in these cases affect vast publics, there need be no concern about the extent to which these publics are in fact represented in litigation—that the courts are as representative as the Congress; and that, when it comes right down to it, “one may ask whether democratic theory really requires deference to majoritarian outcomes whose victims are prisoners, inmates of mental institutions, and ghetto dwellers.”
In short, and never mind what the Constitution may have to say on the subject, judges, and especially those at the top, are best qualified to govern us. They know what justice is—they have had the incomparable advantage of a law-school education—and we are lucky that they have become less and less inclined to allow constitutional scruples to inhibit them when they are given the chance to impose it on us. True, they are not subject to the control of the electoral process, and the Founders deliberately exempted them from the system of control that Madison described as ambition counteracting ambition, but no matter: federal judges, according to Chayes, are governed by “professional traditions of conduct and performance,” as well as by “the accepted, often tacit, canons and leeways of office.”
To Woodward and Armstrong and to their anonymous collaborators we owe something at least. However inadvertently, they have told us something we ought to know about these “professional traditions” and “canons and leeways of office.”