[The previous essays in this series are here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.]
The first Monday in October has marked, since 1916, the beginning of the United States Supreme Court’s annual term, and, since 1975, the first oral arguments before the nine Justices.
Though it became a bestseller forty-four years ago, Bob Woodward’s and Scott Armstrong’s The Brethren: Inside the Supreme Court (1979) reflects critical concerns still current, including: the confidentiality of the Justices’ deliberations; the polarization (and, to some commentators, politicization) of their written opinions; their professional collegiality; and their failure to adopt a code of ethics for the Court.
It also explains the evolution of a wide variety of the Court’s opinions, including some concerning school desegregation, the death penalty, pornography and obscenity, legislative reapportionment, presidential “executive privilege,” freedom of the press, sex discrimination, the “right to treatment” of civilly committed mental patients, and abortion rights.
The last of these, according to the book, was originally framed in a Justice’s draft opinion as a matter of “the rights of the doctor and the rights of the state. The most important party, the woman, had been largely neglected.”
Woodward, who with colleague Carl Bernstein had led the The Washington Post’s prizewinning coverage of the Watergate scandal (1972-1974), and Armstrong, who had also reported for the paper, chronicle in unprecedented and eye-opening detail the Court’s operations during the early terms (from 1969 through 1975) of Chief Justice Warren E. Burger’s (1969-1986) tenure, which succeeded that of the progressive Earl Warren (1953-1969),
The Associate Justices in 1969 were, in decreasing order of seniority: Hugo Black (succeeded in 1971 by Lewis F. Powell Jr.), William O. Douglas (succeeded in 1975 by John Paul Stevens), John Marshall Harlan II (succeeded in 1972 by William Rehnquist), William Brennan, Potter Stewart, Byron White, and Thurgood Marshall.
The authors cite and quote from internal memoranda, opinion drafts (including, “in several instances, drafts that were never circulated even to the other Justices”), and other communications among the Justices’ chambers. (They report that shortly before his death, Black arranged for “his most private papers, memos and conference notes [to be] burned. Publication would inhibit the free exchange of ideas in the future.”)
The book’s accounts of many private conversations could only have come from the Justices’ clerks and/or from Justices themselves. As the Introduction indicates, “For each of the seven terms we describe, we had at least one, usually two, and often three or four reliable sources in each Justice’s chamber, in no case fewer than 20 sources per term. Where documents are quoted, we have had direct access to the originals or to copies.”
According to the biography, Justice Brennan: Liberal Champion (2010), by Seth Stern and my faculty colleague Stephen Wermiel, Brennan became “furious” at suggestions that he had spoken to The Brethren’s authors; and, in fact, “Woodward later revealed that his key source on the Court had actually been Potter Stewart, but not until after the justice had retired and died.”
Among the book’s most notable elements:
● Beyond an introductory recitation of the Court’s “seven decision-making steps”—from deciding to hear a case to announcing its opinion(s)—Woodward and Armstrong address the interpretation, adaptation, and application of its unwritten traditions.
For example, “a single Justice, even a dissenter, could insist that an opinion not come down until he had finished his own opinion. This was the conference’s equivalent of senatorial courtesy.”
Also by tradition, when discussing cases “at conference,” the Justices would proceed in decreasing order of their seniority (starting with the Chief Justice), and then cast preliminary votes by increasing order of seniority (starting with the most junior Justice). “But over a period of time, the formal vote had been dispensed with, since, in expressing his views, each Justice let it be known where he stood. If his position was firm, it amounted to a vote.”
Another procedural question involved the ability of newly-appointed Justices (Powell and Rehnquist) to vote on whether cases heard before they joined the Court, but on which opinions had not yet been issued, should be reargued (a proposal that Burger advanced, but ultimately abandoned).
The Justices also considered whether a disabled colleague (Douglas, towards the end of the book) could be involved in deliberations, and how his absence would affect the voting on current cases.
They ultimately adopted a “strategy [that] had the practical effect of nullifying Douglas’s vote. It would be counted only when it did not matter. Douglas would not be allowed to affect the outcome of a single case. But uneasy as they were over taking this step, the Justices felt that it was necssary to protect the long-range interests of the Court.”
(The book’s detailed account of Douglas’s physical decline, and of his increasingly unrealistic and unavailing attempts to remain involved with the Court’s work, can be moving, despite some of his previous and problematic (his “abuses of his clerks were legend”) personal conduct.)
● Although none of the book’s photo illustrations is particularly kind to its subject(s), the text presents a deeply unflattering portrayal of Chief Justice Burger (who had been appointed by President Nixon and confirmed by the Senate in eighteen days, by a 74-3 vote).
A recurring element is Burger’s apparent practice of strategically withholding his vote during (or even changing it after) the Justices’ case conferences, so that he could be the senior Justice in the majority, and thus, under the Court’s tradition, assign the majority opinion to himself or to one of the other Justices in the majority.
In fact, the book reports that in several particularly groundbreaking cases, Burger “was a member of the minority, [but] had not only assigned the [majority opinion], but assigned it to another member of the minority.”
Burger is depicted as constantly concerned not just with the public image of the Court but with his own legacy. Early on, he persuaded Justice Harlan to reverse Harlan’s vote for the Court to hear a case: “[I]n his first year as Chief, Burger said, a decision that would be viewed as another Court effort to tie the hands of the police would look awful. The press could make such a decision embarrassing both to him as Chief and to the Nixon administration.”
Burger would subsequently breach Court protocol by himself publicly announcing the (6-3) decision to allow newspapers to publish material from the Pentagon Papers, even though he had been one of the dissenters to the majority’s opinion.
Burger also appared overly devoted to the ceremonial duties of the Chief Justice, at the expense of “the monastic, scholarly side of the Court’s life.” The authors report that he was “often unprepared” for oral arguments or case conferences; and that, in criminal law cases, he “would go out of his way—bend the law, overlook earlier Court decisions—to hold a majority to keep someone in jail.”
According to the book, Powell concluded that Burger “provided no intellectual leadership. In fact, when it came to legal analysis, he was grossly inadequate.” After reading Burger’s draft opinion in a school desegregation case, he told a clerk that, “If an associate in my law firm had done this, . . . I’d fire him.”
Burger’s work came under suspicion in other chambers as well. “At the beginning of the [1975] term, Brennan told his clerks to scrutinize, word by word, all drafts circulated by either Rehnquist or Burger. Anything from Burger had to be gone over carefully both because there was no telling what to expect and because the quality of the work was usually substandard.”
● Stewart supposedly told his clerks, “On ocean liners, . . . they used to have two captains. One for show, to take the women to dinner. The other to pilot the ship safely. The Chief is the show captain. All we need now is a real captain.”
To Woodward and Armstrong, the Burger Court’s “real captain” was the “center coalition.” That is, “The leadership belonged to the Justices in the center, the swing votes, those who were neither doctrinaire liberals not conservatives. It belonged to Stewart and White and Lewis Powell if he chose.”
During the 1972 term, according to the book, Brennan realized that “Stewart and White had taken over the direction of the Court along with the Nixon appointees [Burger, Blackmun, Powell, and Rehnquist]. . . . Brennan was the outsider, and he was pained at the direction the Court was taking.”
The Brethren ends by concluding that the five decisions issued on the last day of the 1975 term illustrated that the Burger Court’s “turning away from the Warren Court was orchestrated and controlled not by Warren Burger, but by Stewart and White, who had served on the Warren Court, Powell, the most moderate of the four Nixon appointees, and by Stevens, the new moderate. The center was in control.”
● Half a century before Justice Samuel Alito’s draft majority opinion in the abortion rights case, Dobbs v. Jackson Women’s Health Association was leaked in May 2022, Burger attempted, not always successfully, to maintain the confidentiality of the court’s deliberations. In especially sensitive cases, such as on school desegregation and on the death penalty, he asked his colleagues not to share details of the Justices’ conferences and tentative decisions with their clerks, or to circulate draft opinions to clerks.
Soon after joining the Court in 1969, Burger restricted his own clerks from sharing his, or their own, “views on a case. . . outside his Chambers [including with other Justices’ clerks] until his final position is reached.”
In the spring of 1971, as the court was considering the Pentagon Papers case, Burger “expressed his fear that some antiwar clerk might gain access and leak the papers.” Not all of the Justices found it necessary to observe “the Chief’s restrictions that all th[is] material be kept in the conference room, protected by armed Pentagon security guards stationed outside”; at least two removed some of the documents and shared them with their clerks.
Shortly after the Court’s decision in that case, after being informed by Solicitor General Erwin Griswold about leaks received by his own staff about votes in and impending release dates of the Court’s decisions, Rehnquist recommended to the other Justices that each clerk should be interviewed by F.B.I,, and possibly subjected to a lie-detector test. “When the other Justices objected to the lie-detector tests, the Chief backed down and appointed a committee on security. . . to consider the matter further.”
After Time magazine reported in January 1973 that the Court was preparing “to strike down nearly every anti-abortion law in the land,” Burger sent an “Eyes Only” memo to the other Justices, requesting (largely in vain) that they ask their clerks about the leak. “Burger intended to call in the F.B.I. to administer lie-detector tests if necessary.”
In May 1973, his colleagues agreed, in deciding to hear United States v. Nixon on an expedited basis, that “[t]hey would not tell their clerks about the discussion and to prevent leaks they would announce their decision immediately.”
At the beginning of the 1974 term, all new clerks were told that “they were absolutely forbidden to speak with reporters. If a clerk was ever seen in the presence of a reporter, he would be fired. There would be no questions asked, nor any explanations accepted.”
Not all of the readers troubled by interviews of former clerks might find their concerns assuaged by Armstrong’s article, Supreme Court Clerks as Judicial Actors and as Sources, 98 Marquette L. Rev. 387, 408 (2014), which argues that, “No employment agreements or other written [confidentiality] restrictions were imposed on the clerks. . . .”
● The book includes discussions of some of the oral arguments, and of their reception by the Justices. The authors note that, “The rule of thumb at the Court was that oral arguments rarely win a case, but occasionally lose one”; and they define “the first rule of oral advocacy” as, “[G]et a sense of the Court and go where it wants to go. Be helpful, don’t argue.”
● Woodward and Armstrong detail the often-delicate, and sometimes deceptively-described, process by which Justices suggested revisions to each other’s draft opinions.
In response to Burger’s draft of an opinion in a school desegregation case, Harlan circulated “his clerk’s massive research memorandum” with his own “cover memo, restrained in tone, [that] said the Chief’s draft would be acceptable, provided that Burger made a few changes. The changes, however, amounted to deleting almost all of the Chief’s draft and substituting the far longer Harlan memorandum.”
In another case, after Blackmun circulated an opinion on abortion rights, Brennan “took his clerks’ memo and recast it as a series of casual thoughts and suggestions. It was important that it not appear to be an alternative draft. Brennan addressed a cover memo to Blackmun saying he fully agreed with his draft, but wanted to pass along some ideas. Brennan’s thoughts ran forty-eight pages. Copies were sent to all the Justices.”
At the extreme, several Justices could coordinate their comments in an attempt to effectively gut a circulating opinion. In Nixon, at Brennan’s suggestion, “Each of the [Associate] Justices would systematically propose alternative drafts to various of the. . . sections [written and circulated by Burger]. They all could then express their preference for the substitute sections. Seeing that he was outnumbered, the Chief would be forced to capitulate.”
● Burger, and other Justices, reached for unanimity in particularly momentous decisions, such as in ordering the desegregation of school systems.
As the Court prepared its opinion in United States v. Nixon, “Brennan made an impassioned plea for unanimity. Everyone had problems with the opinion, he said. He too had problems. But it was a compromise document and it was essential both to the Court and to the nation. . . . He turned to Powell and Douglas. The opinion is fine, he pleaded. Please let it go, he beseeched them.”
Both agreed, Powell because of his “nearly inflexible rule: If at all possible, never let a separate opinion or concurrence jeopardize personal relations” with the other Justices.
● The book examines closely the ways in which various Justices sought to collegially cajole, convince, and convert others to certain conclusions and coalitions, in ways both strategic and sensitive. (In some situations, individual Justices simply announced positions that they would not be swayed from.)
Even disagreement could be carefully masked. “Powell misread Stewart and White’s polite encouragement as enthusiasm. Unfamiliar with Court protocol, he did not understand the tradition of complimenting the ‘learned Judge’ before ripping him to shreds. The tradition helped keep disputes on an impersonal plane, or at least maintained the façade that battles were legal and not to be taken personally.”
● Not surprisingly, given their apparent role as sources for The Brethren, the book emphasizes the active, and sometimes-influential, role of the Court’s judicial clerks, almost none of whom is identified by name. The group was largely left-leaning: during the 1970 term, “In a vote on whom to invite to a question-and-answer lunch, one of their top choices had been the outspoken antiwar activist and actress Jane Fonda.”
On their own initiatives, clerks attempted to sway their own Justices’s votes, and possibly even (through their discussions with clerks in other chambers) those of other Justices.
They gathered information for their own Justices from other clerks. (“White mentioned Blackmun’s objections to one of his own clerks, who in turn passed them on to one of Brennan’s. Within hours, Brennan had an account.”).
On occasion, they might have been deployed to convey particular messages and suggestions to other chambers. (“Marshall’s clerk began lobbying through Burger’s clerk, trying to persuade him to move a discussion of residential segregation that had been buried in Footnote II up to the main body of the next draft. Burger at last gave in. . . )
One of his clerks persuaded Justice Harlan to review material including The Autobiography of Malcom X, and to conclude that Muhammad Ali, whose conviction for refusing to serve in Vietnam the Court ultimately and unanimously reversed on technical grounds, qualified as a conscientious objector.
Clerks would voice their own objections of conscience, as when one “refused to work further on [Justice Douglas’s concurring opinion in that case] after Douglas insisted on retaining an incorrect statement of the Black Muslim position on holy wars.” When asked by Marshall to draft an opinion in a case concerning whether a federal court could enjoin the United States from bombing Cambodia, a clerk, “who was avidly opposed to the war, and impatient with Marshall’s timidity and inattention, refused. Marshall would have to write it himself, he said.”
In a welfare-related decision, “Rehnquist. . . insisted on publishing an opinion that twisted the facts. His own clerk was so embarrassed. . . that he sent a personal note of apology for his role in the case to the clerks in the other chambers.”
On a different level, Justice White’s clerks “altered a few words” in his draft opinion on the death penalty, “hoping he wouldn’t notice.”
One of Stewart’s clerks, “given [a] memo to forward to the Chief and to the other chambers[,] thought this boss was being too conciliatory to the Chief. Burger’s standing section [in the draft of United States v. Nixon] was not good enough. . . . Since Stewart. . . was not likely to be back that day, the clerk took matters into his own hands and slipped the original and all copies of the memo into his desk drawer. He would raise the subject with Stewart the next day. He hoped Stewart would be glad the memo had not been sent.” (He did not, however, discuss this with Stewart before the Justices next conferred.)
Brennan, resisting pressure from his clerks to circulate his “counterdraft” to a Burger opinion that had not yet been distributed to the Justices, “could not break protocol so blatantly. ‘I have to live with him next year,’ he said. ‘You don’t.’”
● Among the many other considerations to be balanced, harmonized, and aligned during the Court’s deliberations: the degree to which the Justices should address “political,” as opposed to legal, questions; respecting the relationships among the executive, legislative, and judicial branches of government; maintaining the Court’s credibility; leading, versus following, public opinion; whether to move quickly rather than slowly, and whether to reach broad rather than more restricted holdings (“Harlan and Powell had both concluded, from years of private law practice, that narrow solutions to legal problems were better than sweeping ones.”); and, the nature and variety of sources to be consulted.
At various points, according to The Brethren, different Justices became weary and somewhat disenchanted.
“Once, Powell invited Washington . . . football star Larry Brown to lunch at the Court.
“Brown asked Powell if he preferred being a lawyer to being a judge.
“’Would you rather be a player or a referee?’ Powell replied.”