The Brethren

...This has probably been a long and long-winded way of saying that the Court today mirrors rather than shapes society...

...While there have been few "great" justices (only twelve of the hundred who have served prior to Stevens's appointment in 1975) and none on the present Court, neither have twentieth-century justices been the mindless railroad and corporate lawyers once thought to be the only "eligibles" for a High Court seat...

...While I might quarrel with some choices—for instance, there is little discussion of one notorious early Burger Court decision, Harris v New York, a case which dishonestly undermined Miranda and which (rightly) caused apoplexy among law professors—I would not substitute my substantive judgments for those of the authors' on a matter which is bound to be controversial...

...If not perspective, what does investigative journalism provide...

...The evidence for this was abundant long before the authors sat down to write...

...So much for Supreme Court secrecy...

...If the Burger Court's "center" really controls that body, as the authors of The Brethren claim, then, on some issues, it has moved to the left since 1976, the last year covered by the book...

...juicy) stories is ultimately a question of perspective and even personal taste...

...The notion that the Court is—or should be—a "court of law" is as impossibly naive as the belief that its decisions (and the means of reaching them) are fundamental to society and to public perceptions about the Court...

...Of course, on certain issues such as abortion, a certain "shaping" role may have been played, although it is probably true that "public opinion" rejecting relatively restrictive laws on abortion actually preceded the Court's historic 1973 decisions...

...Although like all "men" the justices have certain loyalties which prevail over others, their "role" requires adherence to a broad notion of institutional integrity above all—even Burger often worried about being depicted as "Nixon's man," though he did little to dispel the image...

...b) equality, or at least some equality, before the law...

...Secondly, such a statement only serves to confirm much public ignorance about the importance of even the Court's official role (an ignorance apparently shared by its present chief justice who once exclaimed, "We are the Supreme Court and we can do what we want...

...The issue of "principle" vs...

...Isidore Silver queyille observed that in America every social and political question eventually becomes a legal one) and even as late as 1937...

...Justice Commonweal: 90 Rehnquist, who regards opinion-writing as a sort of con game wherein he ' 'cools out the mark" (i.e., some other justice who is the victim of the shill) by cutting back on outrageous language to obtain agreement on something only marginally less outrageous, apparently believes that the judicial function is only a game...

...What might be called the "legal model" implies that the Constitution's few thousand words (mostly general and even hortatory) can be logically transmuted into a plethora of specific and obvious principles to be applied to the complex cases that are the essential business of constitutional litigation...

...Of course, the "Woodstrong" effort may be different from the others because it does present ticklish questions of future relations among presently serving justices on the Court...

...This "mechanistic jurisprudence" once constituted the rhetoric by which social welfare legislation was regularly struck down by the "Old Court," and that Courts' ultimate failure can be attributed to a growing recognition, both within and without professional circles, that such jurisprudence was only rhetorical and masked a deeper personal and intellectual distaste for remedial legislation...

...However well he balances the roles, he will find it difficult to reduce his opinions to neat "legal" formulations...

...While The Brethren amply describes the processes by which the game is played, it fails to analyze them well or, indeed, even to comment upon the nature of the game and precisely why it is so important...

...Occasionally, the authors' own grasp of legal issues is faulty—as Renata Adler's otherwise churlish review in the New York Times deftly pointed out—but the treatment of legal issues in general is good, even excellent, considering the authors' lack of credentials...

...the speaker was Felix Frankfurter, the unlamented subject was Chief Justice Fred Vinson, and the time was the summer of 1953...

...The attempt to "demystify" the Court is not aided by statements such as "The Supreme Court . . . reviews decisions made by both federal courts and state courts...

...Well, mostly quotes from internal court memoranda and draft opinions—and comments by loquacious people about other people...

...Of course, building up the Court's importance and mystique is only the necessary prelude to demonstrating that judges are only "human...

...Undoubtedly, like actors in a Broadway hit assured of a long run despite the fulminations of critics, they will continue to do what they have been doing...

...If "role playing" involves a sort of game, then it is essential that the players not perceive it as a game...

...and (c), most importantly, to the Court at least, preservation of the independence and prerogatives of the judiciary as a check on other branches of government—hence the brethren's vigorous reaction to Nixon's grotesque claims to the right to wiretap domestic radicals without search warrants and to withhold tapes of a criminal conspiracy...

...The questions are, of course, what are the justices doing, are they doing it well, and what does this book contribute to our knowledge...

...This follower's role is most vividly demonstrated in the Court's tergiversations on issues such as obscenity and capital punishment, meanderings that reflect public ambivalence on these subjects...

...The Supreme Court justice should be (or think of himself as being) both politicians and statesman as he shifts between the two axes...

...Of course, The Brethren is not a work of history written about events two-and-one-half decades old nor a judicial biography spanning a career, such as Gerald Dunne's recent excellent treatment of Hugo Black ("Old Ego" as some of his colleagues dubbed him...

...In the first place, this observation is wrong, since the Court only acts when claims arising under the United States Constitution, federal laws, or treaties are involved...

...Because of the authors' perspective, the book's suggestion that it is the secrecy of the Court's "deliberative process" (internal debates and negotiations) that accounts for its power to influence public opinion is both illogical and overdrawn...

...We are ritually informed that "virtually every issue of significance in American society eventually arrives at the Supreme Court...

...The "law" of the Constitution simply cannot be known or readily ascertained by invocation of vague clauses such as "due process of law...

...Of course, the Court has handled many important "symbolic" social issues such as defendants' rights and capital punishment, but its concerns here—as well as society's—mask the fact that more fundamental questions are within the domain of either legislative action, social consensus, or, perhaps, merely inertia...

...On the basis of the evidence in the book, there should be little strain, since justices' personalities (again, egos) will probably be immune to even the most derisive commentaries, especially to those of their brethren...

...but since the "Old Supreme Court" stopped battling the New Deal in that year, the "Modern Court" of the last four decades has largely confined itself to deciding peripheral questions not affecting the distribution of power and wealth within society or shaping fundamental questions of that society's direction...

...Even the most conservative of the Nixon appointees have, with varying emphases, recognized these roles, obviously not as fully as did the Warren Court...

...The great difficulty with this book is its lack of insight into the question of how well the Court' 'role plays'' the functions I have mentioned...

...With the arguable exception of the Warren Court's "one man, one vote" and -desegregation decisions, there were very few issues of political and economic "significance" tackled by even that robust body...

...His cynicism is almost matched, as the book makes clear, by Justice White, although he at least has certain substantive beliefs that comport with notions of fairness and equality...

...15 February 1980: 91...

...What issues to treat, the sensational ones, the ones containing "good" (i.e...

...the language of the Constitution does provide a framework for judgment, a judgment that delicately combines certain broad concerns and prudential appraisals of the current state of public opinions...

...opponents of Supreme Court decisions (as well as defenders) are not particularly concerned with the deliberative process but with the results...

...Among the "concerns" suggested by the Constitution itself are (a) basic fairness in government treatment of the individual...

...Another "values" problems arises because of the authors' evident agreement with Justice Stevens' s frustration about the "absence of intellectual content or meaningful discussion at conference" and the presence of "pragmatic rather than principled decisions—shading the facts, twisting the law, warping logic to 15 February 1980: 89 reconcile the unreconcilable...

...The implication that the Court is the only governmental body that deliberates secretly is obviously incorrect as is the notion that such secrecy somehow inordinately affects public opinion...

...This cold, perhaps callous, observation is not to be found in The Brethren but rather in Richard Kluger's Simple Justice...

...To a professional student of the Court, though perhaps not to the public at large (which may be confused by the mass of materials), The Brethren's answers are distressing...

...Despite the pettiness, the ego involvements, the vote "politicking" and the personality clashes, it is apparent that most justices take their jobs—if you will, their roles—seriously and are well aware of the world(s) around them...

...This may have been true in the 1830s (when De TocTHE BRETHREN Bob Woodward and Scott Armstrong Simon and Schuster, $13.95, 467 pp...

...Since the book resolutely proclaims itself to be a work of investigative journalism, it of course eschews any perspective—or takes only the most banal of perspectives—on the Court's role...

...Also, this particular game is important because it is essential to our belief that American society is one of "Liberty and Justice for All...

...If Warren Burger did (and does) it badly, then we can be thankful that Harry Blackmun and, perhaps, Lewis Powell do it better...

...pragmatism" is (a) overstated, since there are principles, often buried ones, in even the most pragmatically worked out decisions, and (b) often a "cover" for criticism of the substantive decisions of the Court (as I noted in a Law Review article discussing why some eminent neoconservative critics of the Warren Court had not applied their own professed standards to the Burger Court's often shoddy work product...

...Like many games, the rulespreservation of institutional integrity among them—are important, if for no other reason than because society feels them to be...

...The justices are men who "role play" both the roles of statesmen and politicians...

...Indeed, it is comforting if not always inspiring to learn that they do not live in an Ivory Tower but understand that their decisions have, as Justice Brennan once put it, "ripples...

...Yet the Court is not a completely "lawless" body...

...We get a fairly good picture of this process from much of The Brethren, if not from its naive theory or its sensational excerpts...

...but the "revelations" contained in each are remarkably similar...