The Brethren: Inside the Supreme Court

The Brethren: Inside the Supreme Court is a 1979 book by Bob Woodward and Scott Armstrong. It gives a "behind-the-scenes" account of the United States Supreme Court during Warren Burger's early years as Chief Justice of the United States. The book covers the years from the 1969 term through the 1975 term. Using Woodward's trademark writing technique involving "off-the-record" sources, the book provides an account of the deliberations leading to some of the court's more controversial decisions from the 1970s. The book significantly focused on the Supreme Court's unanimous 1974 decision in United States v. Nixon, which ruled that President Richard Nixon was legally obligated to turn over the Watergate tapes. In 1985, upon the death of Associate Justice Potter Stewart, Woodward disclosed that Stewart had been the primary source for The Brethren.^[1]

The Brethren: Inside the Supreme Court

First edition
Author	Bob Woodward and Scott Armstrong
Language	English
Subject	Supreme Court of the United States
Publisher	Simon & Schuster
Publication date	1979
Publication place	United States
Pages	467
ISBN	978-0-671-24110-0
OCLC	61201839

The book begins with the 1969 exit of ailing Chief Justice Earl Warren from the Supreme Court after the U.S. Senate refused to allow President Lyndon Johnson to elevate sitting Associate Justice Abe Fortas to Chief Justice in 1968. Newly inaugurated as president, Richard Nixon considered nominating moderate Justice Potter Stewart, but ends up selecting Judge Warren Burger. Upon Burger's successful confirmation, the Republican Party begins pursuing reversals of liberal Warren Court decisions. John Marshall Harlan II comprised the more conservative side of the court, often joined by Byron White, while William Douglas, William Brennan and Thurgood Marshall took up the left. Serving as the narrator, Potter Stewart was portrayed as the Supreme Court's ideological center alongside Hugo Black.

Over the course of the book, Woodward and Armstrong portray the nominations of six additional justices, including the Senate's rejection of Clement Haynsworth and G. Harrold Carswell as successors to Abe Fortas. The replacement of Hugo Black and John Marshall Harlan II with Lewis F. Powell Jr. and William Rehnquist reinforces the Burger Court's conservatism, and the book ends with William Douglas suffering a stroke at the end of 1974, allowing Gerald Ford to appoint John Paul Stevens as his successor. While Douglas despised Ford over a 1970 attempt to impeach him, Stevens would ultimately lead the court's liberal bloc.

Warren Burger is described by others as pompous, devious, and intellectually mediocre. The book is also critical of William Douglas, who is portrayed as having gone from one of America's greatest jurists to a "nasty, petulant, prodigal child" who was overly political.^[2] Woodward and Armstrong also criticize Thurgood Marshall for being intellectually lazy and apathetic, which legal scholar Mark Tushnet has portrayed as racially charged.^[3][4] The accuracy of the book was questioned by some of the Justices, particularly Brennan, who privately called it a "goddamn shit sheet."^[5]

Specific criticism

In the 1972 baseball anti-trust case Flood v. Kuhn, Justice Harry Blackmun circulated a first draft listing more than 70 baseball greats to illustrate the role of baseball in American society. Armstrong and Woodward claimed that he included no African-American players until prodded to do so by Justice Thurgood Marshall. However, when the papers of Justice William O. Douglas were opened to the public in 1986, the names Jackie Robinson, Roy Campanella, and Satchel Page were already included in Justice Blackmun’s 1st draft.^[6]

Regarding the 1972 case Moore v. Illinois, Armstrong and Woodward claimed that Justice William Brennan did not vote in favor of giving a man a new trial because he was trying to build Justice Harry Blackmun’s confidence and independence from Chief Justice Warren Burger, potentially winning Blackmun's votes on other cases. Legal writer Anthony Lewis has since argued that this casual "vote swapping" did not happen based on interviews with Supreme Court clerks.^[7][8]

Reception

In a review, educator Gene Nichol argued that the book's claims of law clerks overseeing most of the writing showcased a bias from sourcing the history of key cases from these clerks. Nichol similarly criticized the book for its overly negatively portrayal of Warren Burger as the result of law clerks biased against conservative jurisprudence after recent decades of liberal decisions. Furthermore, Nichol felt that the book's excessive focus on the personal lives of Supreme Court justices led it to improperly ignore the ethical issues surrounding Warren Burger and William Rehnquist.^[2]

References

1. Garrow, David (2001-01-01). "The Supreme Court and the Brethren". Constitutional Commentary.
2. Nichol, Gene (1979-12-01). "Book Review: The Brethern, by Bob Woodward and Scott Armstrong". West Virginia Law Review. 82 (2). ISSN 0043-3268.
3. Tushnet, Mark. "Thurgood Marshall and the Brethren". Georgetown Law Review (80): 2109–2131. Retrieved 17 September 2022.
4. Robin, Corey (24 September 2019). The Enigma of Clarence Thomas. Metropolitan Books. p. 11. ISBN 9781627793834. Retrieved 14 September 2022.
5. Stern, Seth; Wermiel, Stephen (4 October 2010). Justice Brennan: Liberal Champion. University Press of Kansas. p. 469. ISBN 9780700619122. Retrieved 28 August 2022.
6. “A Tall Tale of ‘The Brethren’”, Ross E. Davies, Baseball Research Journal, Fall 2009. This article was originally published in the Journal of Supreme Court History 33, no. 2 (July 2008): pages 186–99. The names Jackie Robinson, Roy Campanella, and Satchel Page were also shown when Justice Marshall’s and Justice Brennan’s papers were made public in the 1990s. The claim in question is on page 191 of The Brethren.
7. "The Evidence of ‘The Brethren’: An Exchange", New York Review of Books, June 12, 1980. In the 1st letter, Armstrong and Woodward criticize Anthony Lewis's claim from a previous review. In the 2nd letter, Lewis defends his claim. This previous review was "Supreme Court Confidential," New York Review of Books, Anthony Lewis, Feb. 7, 1980.
8. The case in question is Moore v. Illinois 408 U.S. 786 (1972). Argued January 18, 1972. Decided June 29, 1972.