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The Brethren: Inside the Supreme Courtby Bob Woodward & Scott Armstrong
Looking back after 26 years
"The biggest damned-fool mistake I ever made."This fascinating Bob Woodward exposé starts with a story about a Republican President running for office on a platform highly critical of so-called activist judges and courts which invent the law, rather than interpret it. This populist message resonates particularly well in the Southern states. The President in this story seeks to carefully select the judicial appointees, looking for experienced ones with clearly defined views. He does not want his important lifetime picks to drift away ideologically from him, like those of previous Presidents'.
The book also begins with an imminent court vacancy which persistently stays unfilled due to a filibuster in the U.S. Senate.
It is 1968 and the President is Richard M. Nixon.
Looking back at this 1979 book, one cannot help but ponder the adage "The more things change, the more things stay the same." However another conclusion to draw is how incredibly difficult it is for any U.S. President to pre-determine the future courses of their judicial appointees.
Earl Warren and Warren E. Burger
Burger was Nixon's first appointee, replacing retiring Chief Justice Earl Warren. In the 1950s and 1960s the Warren court handed down rulings such as Griswald v. Connecticut, which asserted a right to privacy, overturning the state's contraception law. It handed down the Miranda ruling, prescribing these now famous statements to be read in order to protect people's rights to an attorney and self incrimination. Most famous was the Warren Court's Brown v. Board of Education ruling which ended segregation in public schools. Years later, it still drew plenty of ire, especially in the South.
It was this issue Nixon clearly invoked when criticizing judicial activists in his political speeches. By the late 1960s, federal courts and school districts were struggling with court ordered busing. Once Burger joined the court, the longtime Nixon friend clearly showed an interest in moving away from these liberal decisions. However, Woodward goes to great lengths to illustrate how Burger's indecision, lack of tact, poor legal reasonings and overall gauche demeanor hampers his own effectiveness.
The book takes heavy aim at what Woodward feels are Burger's negative personality traits. The Chief's pettiness manifested itself to Rehnquist, who was intellectually a natural ally. As the junior justice, he was obliged to organize the Court's 1975 Christmas Party. Rehnquist approved a play put on by the clerk's in which all the justices by the Chief found amusing. Burger circulated a memo graciously thanking Rehnquist for his work on the party. However at the next opportunity of case assignment's the junior justice found himself given only one: an insignificant Indian tax dispute.
Rehnquist held nothing but contempt for these types of cases.
Woodward describes time and time again cases where the Burger would switch his vote to a majority's just for the purposes of assigning the majority opinion. Also as Chief Justice, he would wait to vote until all the other Justices has cast theirs. At first, he used this tactic to influence the scope and direction of the decision. By 1976, Woodward describes a very frustrated Justice William Brennan, who as the court's senior justice and liberal leader, continuously has the Chief swoop in and take over this authority through vote switching.
The book traces the appointment of Blackmun, who Nixon fully intended to continue taking the Court on a rightward journey. A friend of Burger's since they were kids, Blackmun often voted with the Chief in his first term. However by the second term, he comfortably took residence in the court's middle ground, with some prodding by Brennan.
The book shows how justices grow into their roles, either as a dealmaker or dissenter or leader. This process sometimes takes many years. Justices mature and see themselves more involved in the process They learn the benefit of ruling narrowly, because the longer they sit on the court, the more likely their own words will come up either for or against regarding a pending case.
The book also tells the sad story of the legendary Justice William O. Douglas. Appointed by FDR in 1939, he clearly made a unique and voluble mark in the law during his distinguished career. No other Justice to date has written more majority opinions as well as dissents. By the 1970s he was in his seventies and his colleges noticed that his opinions lacked the intellectual power compared to earlier ones. One New Year's Eye in 1974 he suffered a debilitating stroke, however for ten agonizing months he reused to retire.
Woodward describes his tragic decline, made all the more public by Douglas's own persistence and inability to face his health situation. One reason Douglas insisted on staying was because his successor would be selected by President Ford. Ford had led the move to impeach him in the House of Representatives six years earlier.
Douglas himself was probably the last person remaining who believed he could be effective in those final days. Presented with a court vacancy, Ford had an opportunity to make his mark. But since he was an unelected President, Ford could not muster significant currency with a post-Watergate Congress. He picked an obscure federal judge in Illinois, John Paul Stevens.
Thirty years later it is Stevens who is the senior associate justice and the leading liberal voice on the court. The Brethren provides a fascinating, easy-to-read insight into the United States' powerful, least seen institution. Ultimately the reader sees how truly difficult it is for a President to "pack the court." Time and time again, whether by design of the Constitution's framers or perhaps by rolls of the dice, the highest court of the land stays firmly in the middle.