Trial by Rumor

...The authors, here Woodward and Armstrong, assure us that they were the busiest of beavers...

...It is a pity that The Brethren so poorly evaluates the damage done to the rights of the vulnerable, and the aid given to large corporations and the police...

...In short, footnotes or no footnotes, names or no names, we should trust our guides to be accurate even when they have "attributed thoughts, feelings, conclusions, predispositions and motivations to each of the Justices," as indeed they do on almost any page of their 467...

...In her destructive New York Times review, Renata Adler identified William H. Rehnquist as the book's hero and implied that he was an important source...

...How can they know that "Burger was aghast," "Marshall was very concerned," "Harlan was delighted," "Brennan was especially unhappy," and "Rehnquist watched with some amusement...

...I linger on this case because it is one 1 am familiar with...

...I measure the failure of W and A's enterprise by the grudging words on behalf of the Burger Court that I just wrote in the preceding paragraph...

...Moreover, W and A interviewed "more than 200 people, including several Justices, more than 170 former law clerks, and several dozen former employees of the Court...

...W and A correctly report that Blackmun, in the course of denying the relevance of the Fourth Amendment to Mrs...

...A varied enough assortment of evidence to give a cautious lawyer pause...

...The Burger Court probably is no more mediocre than the Fred M. Vinson body after Harry Truman finished appointing his cronies, and it is certainly less reactionary than Franklin Roosevelt's Nine Old Men...

...According to the conventions of investigative reporting, no source can be identified, but these were "persons of remarkably precise recall" and "In virtually every instance we had at least one, usually two, and often three or four reliable sources in the chambers of each Justice...

...Worse still, W and A are maladroit analysts of the cases they examine...

...James, a Bronx welfare client, refused to accept a home visit from her caseworkers on the ground that the Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...

...How well do W and A fare with materials which are public and statements which are attributable to known individuals...

...Can it shock an adult past the age of consent that members of the Supreme Court negotiate the language and contents of their decision, trade votes, and allow personal relations to influence the making or withholding of dissents...

...The stuff of investigative journalism is scandal and corruption in high places...

...Do these solemn guarantees really apply to routine visits by social workers to the dwellings of the families on their roster...

...On affirmative action, the Court has been, though wavering and reluctant, rather more inclined than the public to support the claims for special treatment of blacks and women...

...James' situation, analogized public welfare to private charity and asserted the right of both categories of donor to attach conditions to their gifts or gratuities...

...Reviewed by Robert Lekachman This long-awaited blockbuster and certain bestseller is so bad that it makes me uneasy about my delight in All the President's Men, Bob Woodward and Carl Bernstein's salute to the toppled Richard Nixon...

...It may be that the analysis of cases is as boring to our two journalists as it has been to generations of law students...

...we had filled eight file drawers with thousands of pages of documents from the chambers of 11 of the 12 Justices who served during the period 1969 to 1976...

...One example is the case of Wyman v. James, selected by Justice Blackmun as his first majority decision after joining the Court...

...William O. Douglas rates second billing and, from his legal Valhalla, the shade of Earl Warren looms larger than the shadow of any living jurist...

...As I read the text, William J. Brennan, whose diaries were available to the authors, emerges as the defender of the faith, the hardest of workers, and the soundest of legal scholars...

...Not very well, as Walter Murphy, a Princeton teacher of jurisprudence, temperately noted in the Washington Post, the authors' home base: " The Brethren abounds in small errors on elementary points...

...W and A handle this large topic so clumsily that it is unclear whom they are casting as heroes...

...These defects of explanation and interpretation cripple the book's valid central theme: the steady pressure by the four Nixon appointees, aided frequently by Byron R. White (Kennedy's selection) and Potter Stewart (Eisenhower's nominee), upon Warren Court rulings in criminal law, voting, civil liberties, and civil rights...

...The Burger Court is second-rate and its majorities are usually conservative...

...And in the instances of job testing and abortion, the Court has taken enlightened stands even by Warren Court criteria...

...None is crucial to the authors' central theses, [but] taken together they inevitably cast some doubt on the reliability of evidence that cannot be checked...

...Do our indignant instructors really think that Burger is the first chief justice to manipulate case assignments so as to affect case outcomes...

...That supposedly strict constructionist Harry A. Blackmun simply ignored the relevant precedents...

...The authors glaringly fail to realize, however, that the case is important because it reversed a line of Warren Court decisions tending to narrow the discretion of welfare bureaucrats and expand the appeals available to their clients—thus coming close to defining welfare as a right instead of an act of charity...

...Investigative reporting, on present evidence, is not the best way to comprehend the Supreme Court...

...I wonder when W and A began to suspect that they would find no smoking guns, no incriminating tapes—in fact, nothing more actionable than the nasty comments of the justices about each others' intellects, courage, veracity, and legal acumen, and the scurrilous assessments of all parties entered by the clerks, an intolerable collection of know-it-alls...

...Hordes of deep throats were interviewed...

...But in other controversies of even graver import, such as the Nixon tapes and the Pentagon papers, the legal analysis lacks clarity and confuses even a careful reader...

...The beer is so small...

...Nevertheless, it has seldom overturned Warren Court precedents entire...

...Murphy thinks that the centrist trio of White, Lewis F. Powell, and Stewart fare best...

...The technique of the two volumes is identical...

...My admiration for this Court is easily controlled...

...As laymen, W and A evidendy needed either some basic training in constitutional law or better advice than that offered by the stable of lawyers listed in their acknowledgments...

...The "information" (my quotes this time) is derived "from the Justices themselves, their diaries or memoranda, their statements to clerks or colleagues, or their positions as regularly enunciated in their published Court opinions...

...Even the exclusionary rule, in somewhat weakened form, survives...

...Warren E. Burger is the unambiguous villain...