The Brethren is, as the subtitle suggests, an effort to comprehend the inner functioning of the nation’s highest court; it is important because it represents the first major attempt to understand the inner workings of the Supreme Court from 1969 through the 1975 term. It also at times exposes, denigrates, and ridicules members of the Supreme Court and the ways in which their decisions are made. Criticism is undertaken without citing sources and is based upon misrepresentation, inaccuracy of description, and unjustified attribution of motives. Finally, the effort of Woodward and Armstrong to besmirch the public perception of members of the Supreme Court is purposeless and tasteless.
The Brethren provides a description of the many cases considered and the decisionmaking process in each of the terms of the Supreme Court from 1969 through 1975. This was a critical period in the history of the Court, for it encompassed the transition from the Warren Court to the fully developed Burger Court. The transition is depicted almost as a regression, with a highminded and exceptionally competent Earl Warren being replaced by a mediocre Warren Burger. One by one, the towering figures of the Warren Court either resign or manifest triviality and pettiness under Burger. Advocacy of the defense of liberty gives way to political conservatism. Through all of this, Woodward and Armstrong describe, characterize, and criticize in a neutral journalistic language designed to convey the impression of objectivity.
In the authors’ view, Earl Warren had for fifteen years been the leader and spirit behind a judicial revolution in behalf of liberty, while Warren Burger was the selection of a Nixon Administration seeking to undermine that revolution. In actuality, after his appointment as Chief Justice, Burger attempted to modernize and improve the system of physical facilities of the Supreme Court and to open lines of communication between the Supreme Court and the legal establishment in the United States. According to Woodward and Armstrong, however, Burger’s role in decisionmaking was manipulative, incompetent, and politically conservative. For example, he sought to eliminate or reduce busing for purposes of racial integration; he attempted to reduce the rights of prisoners; and he supported the death penalty. The tag “conservatism,” for Woodward and Armstrong, explains most positions that Burger took. The authors insist that “The Chief provided no intellectual leadership.” Moreover, in “legal analysis, he was grossly inadequate.” In addition to Burger’s “intellectual inadequacies” and “inability to write coherent opinions,” the style of the Chief Justice was “overbearing and offensive.” Altogether, Warren Burger “was a product of Richard Nixon’s tasteless White House, distinguished in appearance and bearing, but without substance or integrity. Burger was abrasive to his colleagues, persistent in ignorance, and, worst of all, intellectually dishonest.”
Woodward and Armstrong portray the Chief Justice as highly manipulative in the assignment of the writing of opinions. Burger prevented important “cases in criminal law, racial discrimination, and free speech” from going to the liberals on the court, Justices William O. Douglas, William J. Brennan, and Thurgood Marshall. He deferred his own opinions in conference and took any side he wished in order to be in the majority and therefore able to assign cases to the Justices he wished. He freely switched his view back and forth while an opinion was being written in order to exert maximum influence. For example, in Chandler v. Roudebush (1975), before the unanimous decision was announced, the Chief Justice had changed his vote five times. Woodward and Armstrong paint an unflattering portrait of Burger which they stress repeatedly throughout The Brethren.
Not only do Woodward and Armstrong describe Burger with severity, but their treatment of the other Justices can be equally critical, as well. While Thurgood Marshall’s greeting to Burger, “What’s shakin’, Chiefy baby?,” injected humor into the Court, Marshall is presented as a man who had very great difficulty formulating satisfactory opinions. The authors’ treatment of Douglas is likewise unfortunate. Burger’s efforts to direct opinions away from Douglas and to prevent him from assigning the cases that were part of his judicial prerogatives must have been very difficult for Douglas. The story is one of almost constant frustration generated primarily by the Chief Justice. The final tragedy of Douglas’ stroke, his physical and mental decline, his desperate struggle to stay on the Supreme Court, and his eventual resignation are described with a wealth of detail, particularly about his physical and mental health, that is obscene and tasteless. Evidently the Woodward-Armstrong brand of journalism favors titillating the public over maintaining standards of decency.
The book’s treatment of Justice Hugo Black’s gradual deterioration is not as cruel as its depiction of Douglas, but again the description goes beyond the bounds of propriety. Of other Justices that The Brethren describes critically, Harry Blackmun is presented as...
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