[This review was published in the October-November 1980 issue of The St. Croix Review, pp. 34-38.]
Bob Woodward and Scott Armstrong
Reviewed by Dwight D. Murphey
Bob Woodward and Scott Armstrong’s recent book The Brethren “holds a mirror up” to some disconcerting aspects of today’s society. But what is disconcerting lies more in what the book itself shows us, through the type of literature that it is, than in what it tells us about the foibles of Supreme Court justices.
The book tells in titillating detail about the pettinesses and mutually-belittling squabbles that were bound to have occurred among the several strong-willed men who served as United States Supreme Court justices during the seven “terms of Court” between 1969 and 1975. The Brethren gives an insider’s view of the deliberations of the justices that has been gleaned largely from interviews with the justices’ law clerks. The image that emerges is far from flattering, which serves to remind us of the truism that “no man is a hero to his valet.”
Before any thrill-seekers among our readership rush to buy it, however, as if upon my recommendation, let me hurry to add that before a reader is a hundred pages into The Brethren the titillation has turned to boredom because of the sheer repetition and lack of real substance. What results is a book that is only mildly interesting even to someone who approaches it with a genuine curiosity about the personalities or controversies of those years.
Without my having taken a poll of the book’s readers, it isn’t possible for me to know exactly how the book is affecting the reputation of any given justice. The effect will probably depend on how each reader interprets what he is reading. The book is filled with all sorts of back-biting, as when a liberal judge on the U.S. Court of Appeals is quoted as having said that he was “sick for a week” after hearing that Warren Burger was appointed chief justice. A reader could easily absorb the anti-Burger sentiment from the passage and come away with the impression that the chief justice is indeed illness-inducing. Or a more sophisticated reader might not let it color his thinking about Burger at all. He may just shrug the passage off, realizing that “of course there were bound to be opponents, maybe from different political backgrounds or philosophical persuasions, who would have reacted negatively to the appointment. But that would be true even if a reincarnated Abraham Lincoln had been appointed.”
As a long-time reader of the various commentaries that have been written about the Court in the twentieth century, I notice that at least one new and, to my mind, refreshing thing emerges out of all of this idol-smashing journalistic “realism.” Most of the literature about the U.S. Supreme Court in the past half-century has been written by such liberal interpreters as Arthur Schlesinger, Jr., and Alpheus Mason; and these interpreters have spun quite a mythology in which all of the liberal justices shine forth as “brilliant, thoughtful and innovative,” while the conservative justices, such as those who stood out against the New Deal, slink back into the shadows of “dull-wittedness, reaction, and inflexibility.” At least now, with Woodward and Armstrong, everybody looks bad. This means that, despite the main thrust of the book, which is to reflect adversely on Warren Burger as a chief justice, the conservative justices are receiving no worse than we all should have expected, while the liberal justices are taking quite a fall. They are descending unceremoniously from the
to, at best, the fires of Purgatory. Kingdomof Heaven
Observers of a country’s intellectual history seldom let such a development pass unnoticed. They yearn, as they do with everything, to relate it to larger, more cosmic trends. It can’t be surprising, then, that I see the Woodward-Armstrong irreverence toward the liberal justices as still another example of the collapse of the liberal intellectual consensus. This deflation is a legacy, and a very important one, from the New Left years. The liberal mythology no longer enchants so spontaneously as it did just a short time ago. The result is at least temporarily advantageous to the conservative side, though it won’t produce any lasting results that are helpful to “conservatism” unless there are budding conservative authors, scholars, and interpreters to pick up the slack, seizing the opening that now exists to develop a fresh interpretation of both the larger society and the Court.
Woodward and Armstrong are not themselves part of that fresh start. Their book is immersed in and springs full-blown from the many neuroses that have afflicted
culturally and intellectually in the recent past. To understand The Brethren in its context, here are some things to consider: America
Even though the authors haven’t found anything that is really scandalous, their “insiders’ view” is calculated to attract best-seller status almost entirely because of the titillation and fashionable negativism it seems to promise. It’s not too much to say, therefore, that this appeals to some of the least desirable instincts that arise so universally these days from the mediocrity of modern mass culture and mass education. It takes its place as part of a literature that Russell Kirk has accurately characterized when he has said that “popular fiction reeks of the brothel.” Many of The Brethren’s readers will be disappointed to find that there are no brothels in it (can you imagine the best-seller status that could be gained by a book entitled Burger’s Brothels?); but the book is spiritually a part of that literary type, just the same.
For about ten years right after the turn of the century, there was a spate of journalistic exposes that caused that period to become known as “the Muckraker era.” In part, the exposes were uncovering real abuses; but even more significantly, they represented a certain phase in a much larger phenomenon that has come to be known as “the alienation of the intellectual.” During the entire past century, the overwhelming thrust of intellectual culture in Western civilization has been carpingly critical, in a variety of manifestations, of every conceivable facet of the existing society. With The Brethren, Woodward and Armstrong continue in the “muckraker” tradition. Whether they themselves realize it or not, their work’s debunking cynicism takes its place as simply a small part of a much larger alienation.
At the very same time, the writing of an expose is related to some of the better qualities of modern civilization, at least in my opinion: our scientific empiricism and rationalistic questioning. We are accustomed to scrutinizing everything. The implicit faith of the rationalist is that healthier truths will emerge after a glaring spotlight has sent everything that is venal scurrying. Whether this modern faith is justified, or whether there may not be some irreplaceable features of our society that are being undermined by the irreverence that an on-going scrutiny entails, are questions about which history has yet to render its verdict.
I began my comments about The Brethren by observing that it “holds the mirror up” to some disconcerting aspects of today’s society. Some of these aspects have become clear in the discussion I have just made of the book’s overall context. But there are some additional points that also need to be thought about:
1. Anyone who holds a position of trust and confidence, or who shares a confidential relationship with someone else, owes the other people involved a high degree of duty that in law is known as a “fiduciary duty.” The duty is so compelling that Justice Benjamin Cardozo once punctuated it with the elegant phrase, “…the punctilio of an honor the most sensitive.”
When President Richard M. Nixon surreptitiously taped the conversations he had with the various people who conferred with him in the Oval Office, he violated one of the elemental decencies of human discourse. He showed very little respect for them as individuals or for the confidence they were reposing in him.
Later on when the “Watergate Tapes Case” came before the Supreme Court, the central issue was whether conversations that are held by the president in the Oval Office are not so intimately connected with the operation of the presidency that they should be exempt from judicial scrutiny under a claim of “executive privilege.” I realize that a lot of people won’t agree with me about it, but I have always thought that the executive privilege claim was exceedingly well founded, despite Nixon’s own indecency in taping the conversations. Nothing touches the presidency more closely as an institution; and out of respect for that institution and out of the necessity that it be able to function vigorously, I would think that a very high value must be placed on the ability of people to talk freely with the president in confidence. I was amazed, at least intellectually, when the justices unanimously brushed aside executive privilege, even though the decision came as no actual surprise in the supercharged atmosphere of that time. The Court itself assigned a relatively low value on confidentiality—even to a confidentiality that touches to the quick a coequal branch of the federal government.
Now ironically, with The Brethren, we find the justices themselves bruised and battered by the contempt that several of their trusted law clerks have apparently felt for their own duty of confidentiality. Whenever Justice Brennan has uttered one of his obscenities (expletives that Woodward and Armstrong have not deleted), a clerk has passed it along under the table to the reporters so that they could record it in best-seller form for all of history.
This suggests a serious general question. We must ask ourselves whether all of this does not in fact “hold a mirror up to” a precipitous decline in even the most self-evident norms in our society today. Here we see a president, an entire court, and several anonymous Supreme Court law clerks treating trust and confidence as though they were artificialities that may be brushed aside whenever they are inconvenient. What, then, is becoming of norms today? Can we really say with a straight face that these breaches of faith represent a “new honesty” which we can sugar-coat as a favorable sign rather than see realistically as a further indication of the erosion of standards?
2. The Brethren shows a similar disdain for still another value that we have long considered fundamental. This is our commitment to “procedural due process.” In law, this means giving everyone notice of the claims being made, providing a chance to be heard and to present evidence, and having an independent, impartial tribunal make the decision. In scholarship, it means openness to ideas and to evidence, not arbitrarily shutting out a line of thought or of proof.
The thing that strikes me most about The Brethren is that Woodward and Armstrong have publicly poured out a lot of essentially derogatory information in a context in which there is no way by which the allegations can be rebutted. An “insider’s view” of the deliberations of the United States Supreme Court originates in a series of breaches of the long-standing fraternalism and seclusion of the justices. These breaches tear at the human texture of the Court. What each justice faces, as he ponders whether he should respond, is the question of whether he should “compound the felony,” so to speak, by adding a press conference or a memoir of his own to an on-going debate. If each justice responds, the fraternalism and seclusion go further down the drain. But if they don’t, we wind up with a situation, foisted on them by The Brethren, in which the justices have personally been treated very unfairly. They will have had nothing akin to “procedural due process” in the court of public opinion so far as their reputations are concerned.
How is it that so elementary a consideration wasn’t enough to stay the hands of Woodward, Armstrong, the tattling clerks and the publishing company, even before the project was started? Again, we see that a basic value was subordinated when it proved inconvenient. Various philosophers during the twentieth century—Jose Ortega y Gasset, Richard Weaver and Wilhelm Roepke are three who come immediately to mind—have warned about the “spoiled child” mentality that is one of the spiritual characteristics of most people in an advanced society. This is the “gimme” attitude, an outlook that says that “if I want something, I’ll take it; and damn the consequences.” After all, as we were told by John Maynard Keynes, “in the long run we are all dead.”
This lack of procedural fairness discolors The Brethren so completely that I am personally resolved, as a matter of principle, not to take seriously any of its allegations of fact. Much or even all of what the book says may be true; but it seems to me that any fair-minded person will want to think of the allegations as though they had appeared in an historical novel rather than in a work of non-fiction.
There is much more that could be said. Another issue looms large in my thinking, since I am personally quite interested in the Constitutional philosophy of the Nixon-Ford appointees who came onto the Court during the years covered by this book. Do they have a common philosophy? Whither will they take our now-floating Constitution during the years ahead? Where should they take it? But those are subjects that would take us far beyond the confines of The Brethren?