Trashing the Supreme Court

This is a great best-seller in America. But it is a deplorable book – mostly silly gossip about the various Justices of the United States Supreme Court in the period from 1969 to 1976, supposedly taken from internal court memoranda never intended to be published, and from off-the-record and not-for-attribution talks with former law clerks about the Justices and with the Justices about each other.

The book may have permanently changed the relationship between the clerks and the Justices. These clerks are outstanding recent graduates of prominent law schools who are selected to serve as assistants to Supreme Court Justices for a year. The Justices, by convention, talk freely to their own clerks, and the clerks of different Justices act as an informal information centre and sometimes as emissaries negotiating points of opinions. The relation between clerk and Justice is typically intimate – many Justices have said that they come to regard clerks as sons and daughters – and is in every case supposed to be based on confidentiality. Woodward (the famous hero of Watergate journalism) and Armstrong, his colleague at the Washington Post, apparently succeeded in shattering that confidentiality, for most of their ‘inside stories’ (if true) come from among the 170 former clerks they say they interviewed.

I say ‘if true’ because none of what Woodward and Armstrong report is supported by any reference to any specific source. They ask us to assume that their various stories of judicial stupidity, incompetence, duplicity, vote-trading, backbiting and manipulation are backed by a record they are not free to reveal. They affect a novelistic style that does not encourage our confidence in this record. They tell us countless times, for example, that a particular Justice was ‘worried’ or ‘outraged’ or ‘mortified’ or ‘bewildered’ in the privacy of his own chambers with no one else about – and the most frequent subject of these psychological inventions is Chief Justice Warren Burger, who, the authors admit, refused to talk to them at all.

Assassination by non-attribution is sordid, and the most unattractive aspect of this book is the campaign it conducts against Chief Justice Burger. Every few pages offers some unsubstantiated attack on Burger’s intelligence or honesty. Other Justices are described as astonished by the quality of Burger’s work – they are reported as saying that it would not receive a passing grade in a law class – or furious at some abuse of his power as Chief Justice to assign opinions, or dismayed by some embarrassing administrative decision like his lectures to the clerks instructing them that they would be fired if seen talking to reporters. The authors’ description of the oral argument in the Nixon Tapes case hints – though it does not say – that Burger’s principal concern was with whether disclosure of the tapes might reveal conversations between himself and the President. At a Saturday informal lunch with some clerks, three Justices are reported to have entered into what is described as the clerks’ ‘longstanding game’ of trying to decide whether the Chief was evil or stupid.

Neither the Chief Justice nor any of the Justices whose opinions are supposedly reported is in any position to reply. A Supreme Court Justice cannot hold a news conference to discuss whether or not he joined a discussion about whether the Chief Justice was evil or stupid. But Anthony Lewis, writing in the New York Review of Books, said that his own research cast great doubt on some of the most sensational ‘disclosures’ of the book. (Woodward and Armstrong have now replied to Lewis, but his research seems more careful than theirs.)

Irresponsibility is not the book’s only fault. It does offer capsule summaries of dozens of important Supreme Court arguments and decisions – I would be amazed if many readers ploughed through them all. But the authors’ understanding of constitutional law is crude. They mistake the facts and law of several cases, and reduce intricate issues about the allocation of political power in a federal system, for example, to a simplistic spectrum of left-right-centre political sympathy. (The death penalty cases are described as turning on how much each particular Justice was worried about the several hundred prisoners waiting to be executed.) Much of what is plainly just gossip is banal, and some is tasteless, like the clinical and embarrassing details of Mr Justice Douglas’s infirmities following his stroke.

It might be said, however, that this poor book is nevertheless an important event, because it breaks the long-standing taboo about investigative reporting of the Supreme Court, and so opens the way for better books to follow. There is plainly something in this. The courts – and above all the Supreme Court – are part of government, not holy institutions divorced from secular political power. It is, after all, the Supreme Court that decides whether capital punishment shall be permitted, or abortions allowed, or pornography protected from censorship, or schoolchildren bussed long distances to secure racial integration in schools. No institution that decides questions like these should hide behind the censorship of courtesy. The shock of many lawyers, who were appalled at the idea of an ‘inside story’ about the Court, was misplaced.

But there is nevertheless a difference between the Court and other branches of government that is relevant here. No tyranny is threatened when reporters decline to peek into chambers, because a court can exercise power only on the record – that is, through public announcements of what it has done and why. The executive, on the contrary, can dispose of great power in secret. The public might never know that its President has instructed the tax authorities to harass his political opponents, or asked the FBI to help cover up his own crimes, or conducted a secret campaign of bombing Cambodia. But since a court acts only by publication, the public, in the nature of things, cannot be ignorant of what the Court has done.

That is why reporters who bother with the Court at all have traditionally bothered only with its opinions and not with backstairs gossip. Bribes apart, there is not much that gossip can add or subtract from the only story there is. If a Supreme Court opinion succeeds in showing that capital punishment under suitable procedures is constitutional, because it is not forbidden by a proper understanding of the Eighth Amendment prohibition of cruel and unusual punishment, then no amount of behind-the-scenes skulduggery or manipulation can call into question the Court’s decision to permit it. If, on the contrary, the argument of the opinion is poor, and does not in fact justify the result the Court reaches, then the Court is open to the most severe criticism, no matter how statesmanlike its deliberation were. For it is the central part of the Supreme Court’s job, not merely to decide for one of another litigant in a properly grave spirit, but also to endorse and defend some parlicular conception of a constitutional principle, and when its opinion is split or indecisive or weak it has simply, in the most important sense, failed to act.

There is no reason, of course, why criticism that focuses on the Court’s opinions should be either deferential or gentle. On the contrary, the Burger’s Court’s record on the record has often been lamentable: it has, as a court, produced undistinguished and often plainly unsatisfactory arguments for its decisions. Some of its failures have indeed been failures of process, but these, like poor arguments of substance, are matters of record also, and require no flattery of law clerks over lunch to discover. Very recently, for example, the Court, in a general opinion not signed by any particular Justice (and over the strong dissent of Justices Stevens, Brennan and Marshall), overturned a lower court decision, and imposed an extraordinary penalty against a former CIA agent who had broken a contract with that agency – a much more serious penalty than the one the CIA itself was prepared to accept – all without so much as a hearing at which counsel for the ex-agent might be heard. That is a more serious offence to conventional judicial standards than anything Woodward and Armstrong discovered behind the scenes in years of fearless investigative journalism, and it has rightly excited far more dismay among lawyers than their book has. But it is a matter thoroughly on the surface, not beneath it.

So the book is tasteless, uninformed and probably unnecessary. It may nevertheless be true. Suppose it is. Suppose we assume that all the unsupported stories the authors tell, including all the clerks’ tales out of school; and every absurd psychological reconstruction, are, in fact, just what happened. Though the book has the swagger of a tabloid headline, there is very little that is either new or shocking here, except, perhaps, to those who had thought very little about courts before. Of course, if any citizen thought that Supreme Court Justices make their decisions on important constitutional issues in some mechanical way, simply by laying the facts of the case alongside the text of the Constitution and reading the answer off, as one Supreme Court Justice claimed early in the century, then he would learn from this book that that is not so. But no one who has even a dim awareness of what the Constitution is any longer thinks that.

Americans who think about the Supreme Court hold, I believe, a more complex but nevertheless idealistic picture which might be summarised this way. Though the Court has some obligations to consistency with its own previous decisions, this is hardly, at least in practice, an inflexible constraint, and a judge’s own theories of the proper structure of government and his own political morality will play an important, often decisive, role in determining his votes and opinions. That is why Presidents properly take a judge’s ideology into account in deciding whether to appoint him to the Court, and Congress in deciding whether to confirm the President’s choice.

But though Justices are in this way moved by theory and ideology, and decide so as to make the reigning interpretation of the Constitution more compatible with their own ideals, their decisions are not arbitrary or self-seeking in the narrow sense of procuring personal advancement. They do not decide so as to favour some group of political supporters or allies or cronies. Nor are they political in the narrow sense of partisan. In this respect, Justices are different from other sorts of politician. They may be faulted for the ideology they try to advance or because they pay too little or too great respect to text or precedent. But not for unprincipled acts in furtherance of personal gain or ambition, acts of which mayors and Congressmen, Presidents and governors are all too often guilty.

This is, as I said, an idealistic picture: but The Brethren does it no important damage. The various incidents and anecdotes of the book divide into three possible charges: that the Justices are incompetent or lazy, that they are devious, and that they do, after all, pursue narrow personal ambitions at the cost of principle. But the first two of these charges are made only against a surprisingly small group of Justices. Chief Justice Burger, as I said, is everywhere portrayed as mentally unfit for his job – a hack who understands neither law nor grammar nor logic. Mr Justice Marshall (the only black member of the Court) is pictured as a lazy judge who leaves all the legal analysis and opinion-writing to his clerks. Mr Justice Blackmun becomes a ditherer who can’t get his opinions written, and Mr Justice Stewart (at least for part of the book) is also lazy, though not as lazy as Marshall, whom Stewart meets, leaving, as Stewart arrives for work each day at noon. But these are the only charges of incompetence or indolence made against the 14 Justices who held office during the period the book covers, and the impression the book offers, sometimes explicitly, is that the others were, as a whole, highly capable and even ‘dazzling’ in their work.

The charge of deliberate deviousness is made against Mr Justice Rehnquist, who, according to what other Justices are reported as telling their clerks, sometimes miscites or ignores earlier Court opinions in an effort to show that his right-wing views have more support in the Court’s history than in fact they have. It is also, in a different sense, made against Burger, who delays voting until it is clear which side has the majority (or sometimes changes his vote after this is clear) simply in order to retain control over the power to assign the writing of the Court’s opinion to a particular Justice. (The Chief Justice has this power when, but only when, he himself is in the majority.) Burger uses this power, the authors suggest, to ensure that even opinions with which he disagrees will be as satisfactory to himself as possible, or, on occasion, simply to punish a Justice who has offended him by making sure that that Justice has only trivial and boring opinions to write.

These are both serious charges, though the first is obviously of more public concern. (It is also, of all the charges made, the most easily made out from purely academic study of opinions, and law journals have in fact pointed out Mr Justice Rehnquist’s lapses from strict canons of opinion honesty.) But once again these charges, though serious, and particularly damning to Burger, are hardly an indictment of an institution as a whole, because the remaining Justices are described as surprisingly conscientious in the lawyer-like aspects of their job. There are many descriptions of long and lonely hours striving to make an argument right as well as persuasive, including, for example, a touching description of the slow-working Blackmun labouring an entire summer in a medical library when other Justices were on vacation, flogging himself to make his opinion on the abortion cases as sound and craftsmanlike, and as useful for the future, as it possibly could be.

Most of the book’s anonymous stories speak to the third charge. Every few pages some Justice is at work flattering another Justice in hopes of winning more influence within the Court, or trimming some opinion he is drafting in order to persuade some other Justice to join his opinion rather than to write a competitive concurring opinion, or agonising whether he has so antagonised the Chief Justice by his arguments in conference that he will be assigned only trivial opinions thereafter. We do not find nine legal philosophers, each stirring from reflection only to express as carefully as he might some complex and subtle analysis of legal doctrine or political theory. We see a robed pack of schemers and traders in some steamy counting-house of jurisprudence, each aiming more to swindle some settled rival than to do justice as he sees it.

No doubt the villain of the worst story, from this point of view, is Mr Justice Brennan, who has been throughout his long career a strong defender of the procedural rights of accused criminals. Brennan (according to the story) refused to vote to overturn the conviction of an alleged criminal, although he believed that the accused did not have a fair trial. The Court’s opinion upholding the conviction had been drafted by Mr Justice Blackmun, then fairly new on the Court, and Brennan believed, according to the story, that a vote to defeat Blackmun’s opinion would sap that Justice’s growing confidence, and bring him closer in the future to the Chief Justice whom Brennan opposed, while a vote with him, from someone in the ‘liberal’ wing, would give him more independence from the Chief. (Brennan was particularly worried about Blackmun’s vote in the then pending abortion cases.) Besides, the story continues, Brennan thought the man who had been convicted was probably guilty even though his trial was not fair, so that nothing much would be gained by overturning the conviction and ordering a new trial.

The story seems vastly improbable to those who know Brennan, and it is precisely that story that Anthony Lewis’s investigations lead him to doubt. But suppose, in the spirit of our present exercise, that we assume that it is true. That story, and the other less dramatic stories along the same lines, no doubt provide a less attractive picture of the corridors of justice than most of us would hope for. But they hardly argue that Supreme Court Justices set principle aside for personal gain or pride or privilege. On the contrary, they suggest a deeper and more troubling set of issues because they raise questions about how judges devoted to principles ought to proceed when their principles are not shared by other judges of their court.

The questions I have in mind are these. Should a judge take the occasion of a particular case to state, as carefully and precisely as he can, what he takes to be the governing set of legal doctrine and political principle on the issue at hand? To state, that is, what he himself takes to be the law and its grounds? Or should he rather aim that the opinion of the Court in the case – the opinion that a majority of the Justices join – provide the best possible influence on the decisions of other courts in the future? That is, that the opinion of the whole Court, which will shape the law for the future, be as close to his own ideal opinion as possible, given the differing views and theories of the members of any potential majority? Or should he rather aim to act, on each particular occasion, so that the law as a whole, not just the law concerning the particular issue then in dispute, will be as sound as it can be in the future, so that the fundamental rights of the citizens attract as much protection and suffer as little invasion as possible in the long run?

It is easy to see how the first two of these ambitions might conflict. A Justice who is assigned to write an opinion for a potential majority may know that if he writes it as he believes it should be written – as he would write a law review article on the same subject – he will lose his majority. Some will dissent, as they come to realise how the decision of the case implicates principles that they had not seen, and others will abandon his opinion in favour of concurring opinions expressing different grounds for (or limits to) the same decision. One of these concurring opinions might, indeed, replace his as the effective majority opinion of the Court, if it receives in the end more votes than his opinion does. So a judge seized of the second ambition – to see that the influence of this particular decision on the future law is as beneficial as possible – might well sacrifice felicity of expression or even the substance of his argument in order to gain votes he would otherwise lose, if the result of that loss would be a different opinion worse, in his eyes, than the compromise he would achieve by trimming. Much of what The Brethren describes is compromise simply in that spirit, and it is a commonplace among lawyers and judges that such compromise takes place in any effective appellate court. There are, no doubt, limits, but few of the book’s stories suggest that these limits were violated.

The alleged incident involving Brennan and Blackmun shows how the third of the ambitions I described might conflict with both of the others. The Justices of the Supreme Court – more than any other court in the world – represent an important diversity of theories of law, of federalism and of the content of individual human rights. Each Justice believes that if a long-term coalition favouring the general outlines of his own position can be formed, then decades of injustice might be avoided. It is no doubt too simple to describe these different general positions as ‘left’, ‘right’ and ‘centre’. Constitutional jurisprudence tries to find better descriptions of the various constitutional philosophies now in play. But there are such philosophies, and, for each Justice, it is a matter of high moral importance that constitutional doctrine represent and advance the philosophy that he thinks guards justice and secures a just society.

In these circumstances, a particular Justice might well believe that he contributes more to justice by acting so as to protect a coalition for the future even at the cost of playing politics within the Court and even, perhaps, at the cost of justice in some particular case. (That is, of course, an example of using the end to justify the means, but that practice is not always despicable or even always wrong.) He might think that his duty requires him to flatter an insecure Justice, to cultivate the admiration of clerks in other chambers, or to worry about the administrative power of a Chief Justice who will use that power to build an opposing coalition dedicated to a competing constitutional philosophy. Brennan’s alleged decision not to antagonise Blackmun by dissenting in a particular case, even though justice in that case required a dissent, would be a limiting case of accepting injustice now to protect against more injustice later.

I would myself reject the third ambition of adjudication – so far as it goes beyond the second. I would not suppose that the end it describes justifies the means of voting to sustain an improper conviction. (I believe that Brennan holds this view as well, and I do not accept the story as true.) But even if some Justice did accept the third ambition – and other stories, if true, suggest that some do – he would not be guilty of sacrificing principle to personal ambition or petty pride. He would simply have taken one of several possible positions – though I think the wrong position – on what is itself a question of principle.

If I am right, then the muckraking efforts of The Brethren do not much darken the image of the Supreme Court. Even if all of what looks like scandal is taken to be fact, not much damage has been done to a view of the Court’s practices that is both plausible and idealistic. On the contrary, the impression the book leaves is that of a group of political appointees of varying talents and backgrounds, few of whom are either brilliant or saintly, who nevertheless work, almost all of them very hard, to do justice within the substantial constraints of their role as they see it. It is not the best Supreme Court in history. It may not be much better than average. But it is nevertheless, on the whole, a Court that does credit to the old claim that law and judicial office are ennobling ideas.