After the Tall Timber (45 page)

The gossip most characteristically takes the form of a declarative sentence about a frame of mind. “Burger was furious.” “Harlan was furious.” “Brennan was furious.” Innumerable paragraphs begin with the information that one Justice or another was “furious,” “delighted,” “upset,” “especially upset,” “exceedingly upset,” “happy,” “not happy,” “also unhappy,” “disturbed,” “worried,” “pleased,” “not pleased,” “both pleased and frightened,” “glad,” “troubled,” “tormented,” “elated,” “despondent,” “overjoyed,” “shocked,” “as usual more amused than shocked,” “once again enraged,” “crestfallen,” “flabbergasted,” and so forth.

Not only do the Justices ride these gusts of mood and feeling; all the more, the clerks. My favorite piece of American judicial history may be the news (page 326) that “Marshall’s clerks were miffed.”

The book also chronicles less subjective states of mind: realizations, for example; also vows. “Burger vowed to himself that he would grasp the reins of power immediately.” Since the authors admit that Chief Justice Burger refused all contact with them, it is hard to know how they can write this quite so categorically. Justice Burger may, of course, have confided his vow to someone else, who then anonymously passed on the information that Justice Burger said he had vowed something to himself. But it is precisely the weakness of this kind of journalism that, because there is no way to check almost any of its assertions, the journalists themselves are sooner or later drawn into some piece of irresponsibility or idiocy; and one has to read every one of their assertions, from the most trivial to the most momentous, with the caveat “if true.” Justice Burger “vows” again, 312 pages later, this time “to his clerks.” The content of that vow: “that he would hold his ground.” As for realizations. “When Nixon was informed of the investigation, he realized,” they actually write, “that Fortas’ actions were perhaps criminal and perhaps not.”

In fairness to the authors, one ought to raise the possibility that the above sentence reflects editing by lawyers—not good lawyers certainly, not constitutional lawyers but lawyers who did not think Justice Fortas a “public figure” within the meaning of
New York Times v. Sullivan
, and who also thought, rather incredibly, that a libel, if libel there was, would evaporate with the addition of two “perhapses” and one “not.” There arises, then, the question of
The Brethren
and the law—which the authors treat confidently, seriously, and at length. In small things and in large, with surprising frequency, they get it wrong. They don’t seem to know, for example, the difference between appeal and certiorari, or even what an appeal is. This leads them to major misstatements in their first explanation of the steps by which the Court decides to take a case: “I. The decision to take the case requires that the Court note its jurisdiction or formally grant cert. Under the Court’s procedures, the Justices have discretion in selecting which cases they will consider.” The second sentence is plain wrong. The Justices have such discretion only when the issue is whether to grant cert; they do not have that discretion when a case comes to them on appeal. The first sentence, of course, does not mention appeal.

There are small matters: Justice Douglas, for example, confined to a hospital bed, asking another Justice to be his “
best friend
[authors’ italics] and swear out a writ” to get him out. Now the ancient legal locution happens to be “
next
friend”; the only reason, apart from the knowingness implied by those italics, that this is not just a slip too inconsequential to mention is what it implies about the authors’ ear for dialogue. In a journalistic enterprise that relies so heavily on a sort of telephone game—Justice, for example, who confides to clerk, who tells reporter—a demonstrably inaccurate ear may be a handicap. It casts doubt particularly on extended conversations that the authors reconstruct, unqualifiedly, in quotes.

As it happens, the way the Justices treat one another’s illnesses, aging, reluctant retirements, death is a genuinely moving subtext of the book. The authors, and especially the clerks—because another serious subtext is the patronizing, self-infatuated trivialization, by recent clerks, of the relation of clerkship—have a tendency to reduce the Justices’ concern with mortal fallibility to the news that Justice Douglas smelled, in conference, because he had become incontinent.

There are also large, quite complicated mistakes of law, which should startle and confound lawyer and nonlawyer alike. I’ll mention just one, before returning to another sort of gossip, which, finally, constitutes the “Materials” of the book. “Moreover, Stewart felt trapped,” they write, “by a phrase Rehnquist had convinced him to add to a 1971 opinion (
Roth v. Bd. of Regents
). Though it had seemed harmless to Stewart at the time, the phrase said that due process should be invoked only for rights specifically created by governments.”

Roth v. Bd. of Regents
came down in 1972, not 1971; but that is not the point. The point is that if Justice Stewart
had
ever written that “due process should be invoked only for rights specifically created by governments,” he would have abrogated the Constitution—letter, spirit, and Preamble. Among the truths which the Framers held to be self-evident, the reader will remember, was that certain, emphatically not government-created rights—life, for instance, and liberty—are inalienable. If Justice Stewart had written a phrase to the effect that citizens could, without due process, be deprived of life or liberty, that would be news indeed. Of course, that is not what he wrote. What he wrote was that due process should not be invoked for
property
rights other than those created by government. That view is problematical, controversial, and probably, in spirit, unconstitutional enough. But nothing like what the authors say.

Their discussion of the abortion cases is also, for its length, remarkably askew and superficial; their summary of
Alexander v. Holmes County
—a wonderful case in which the Court reversed a decision of the heroic Fifth Circuit, to that lower court’s eternal credit and surprise—shows they have not even a minimal understanding of civil-rights litigation in the South. The reason they cannot address in any depth even the important questions of which they are aware lies in their unusual preoccupation with a very odd kind of gossip: who voted how and when, and whose vote changed; who thought what about whose earlier drafts; but, above all, who liked or disliked whom.

One would have thought the matter of earlier drafts could have been disposed of in a second. No writer, least of all an investigative reporter working on a book, wants to be held accountable for his early drafts. But, “ ‘If an associate in my law firm had done this,’ Powell told a clerk [of Chief Justice Burger’s draft in a busing case], ‘I’d fire him.’ ” “White thought Blackmun’s drafts [in the abortion cases] were dreadful.” “Stewart told his clerks that the Chief’s initial draft of the decision [in the Nixon tapes case] would have got a grade of D in law school.” Hardly anyone, I think, would contend that even the final opinions of the Court very often reflect the work of nine, or even any, distinguished draftsmen. To the caveat “if true” about this sort of news, in short, one is inclined to add “So what?” But Woodward and Armstrong endlessly return to who thought what of drafts.

Another subject that fascinates them is shifting votes. Now it must be obvious, on a moment’s reflection, that it is desirable—even essential to the judicial process—that the Justices be able sometimes to persuade one another to change their minds. The authors do have evidence in support of two old and interesting rumors. The first, that Chief Justice Burger often reserves (or repeatedly and perhaps disingenuously changes) his vote, in order to retain the prerogative of assigning a majority opinion, is not too serious. The result, most often, is only that he joins in a majority position more liberal than any he would have taken on his own. The second, that the Chief Justice has tried to alter certain traditions of the Court—to assign from the minority even when he is in the majority; or to permit rehearing of a case when no member of the deciding majority has voted to rehear—would strike lawyers as more disturbing. Except that, under protest from other Justices, these efforts failed.

More than drafts, however, more than vote changes, the authors are concerned with the popularity, within the Court, of Justices. Their villain is, beyond doubt, Chief Justice Burger. He is characterized, in terms attributed to other Justices, as “grossly inadequate,” “overbearing and offensive,” “tasteless,” “without substance or integrity,” “intellectually dishonest,” “abrasive,” “asinine,” a “blustery braggart,” and so on. Other Justices are also characterized in terms attributed to their colleagues: Justice Marshall, for instance, as “petulant”; Justice White as “not particularly likeable,” “an enigma” who cheats at basketball. But every Associate Justice, according to this book, has something disagreeable to say about the Chief Justice. This may or may not be true. If true (as everyone who has ever worked in an office with even a beloved boss will know), it may or may not have any meaning. But on page 323, in another apotheosis, there may be a kind of clue. “The Justices found themselves entering the clerks’ long-standing debate: Was the Chief evil or stupid?”

“The clerks’ long-standing debate.” There have been countless other clues on this order: “The language remained Blackmun’s; the more rigorous analysis was the work of the clerk.” “How, Powell asked his clerks, did Marshall turn out such a masterpiece so quickly? The clerks were frank. Marshall’s clerk was first rate . . . .”

“The clerks were frank,” to the same effect, it seems, quite often. On page 279, this achieves an almost wonderful fatuity. Justice Rehnquist has allegedly brought to conference an issue of the
National Lampoon
, which depicts all members of the Court in obscene postures: Justice Brennan, for instance, opening his robe in front of two little girls; Justice Blackmun sodomizing a kangaroo. Justice Brennan, the authors say, thought he alone was portrayed as innocent. “His clerks decided they owed it to him to explain ‘flashing.’ ” Justice Blackmun claimed not to know what he was supposed to be doing to the kangaroo: “The clerks drew straws to see who would tell him.”

Oddly enough, and for reasons of which the authors seem to have no notion, this is the only “Materials” scoop they have: the fact that clerks spoke to them; the precise number who did; the apparent smugness and foolishness of what they said; and the fact that (although they clearly believed otherwise, else why speak to investigative reporters?) the clerks knew no important secrets at all.

The origins of Supreme Court clerkship are recent—the turn of the century. Justices White, Rehnquist, and Stevens are, in fact, the only former Supreme Court clerks to have become Justices. There used to be one clerk per Justice; even in the late years of the Warren Court, when there were two, the relation was close. A clerk was, for a year, an apprentice, a son, research assistant, ghostwriter, friend. His real importance to the Court, if any, was, as a student recently graduated from law school, to bring the views of law faculties to the attention of Justices. Whatever it was, it was a unique and fine relation. Now, with the mushrooming of clerkships (four to each Justice), there is a possibility that they have become a bureaucracy like any other—with confidences to violate, surely; but with fewer secrets, because the Court explains itself, than others have to tell.

The authors’ “Materials” scoop, in other words, would have had to do with what has happened to clerks and the relation of clerkship. Their “Cases” scoop, for not unrelated reasons, would have had to do with Justice Rehnquist and his work. As clearly as Chief Justice Burger is their villain, Justice Rehnquist is very much their man. Their inquiry about how he came to be appointed, compared with their discussion of the appointment of other Justices, is remarkably uninquisitive. Here’s how he is characterized, however, as a member of the Court: “jolly,” “jovial,” “sincere,” “thoughtful,” “remarkably unstuffy,” “good natured,” “aware of Burger’s faults,” of “crisp intellect,” “diligence,” and “friendliness toward clerks,” “hard not to like.” “Rehnquist and his clerks,” the authors typically write of him, “chuckled quite a bit.”

It is true that they also quote other Justices to the effect that Justice Rehnquist is “slow even to correct an outright misstatement,” that he “misrepresented the legislative history,” “twisted the facts,” used “disingenuous scholarship,” made “misuse of precedents,” tried an “underhanded attempt to slip through a major policy shift.” But they seem unaware that these adverse characterizations, if true, are of an entirely different order from any others they have made. Even if the clerks did have a “long-standing debate” as to whether the Chief Justice, for instance, was “evil or stupid,” that debate, those adjectives, would have no legal or other substance.

The Court, after all, is an ongoing body, committed to the Constitution and its own history. If the Burger Court had allowed certain critical rights to erode (the right, for example, in all criminal trials to a jury of twelve and to a unanimous verdict), it has also (in the first abortion decisions) made some of the most radical and humane judgments in the history of the Court. Even
Alexander v. Holmes County
—in which the
Brown v. Board of Education
integration formula, “all deliberate speed,” was superseded altogether by “at once  . . . now and hereafter”—was hardly ineloquent or unradical. These were, however, questions about which reasonable men, and honorable Justices, might differ. But Justices, whatever their views, are supposed to be committed, in the exercise of their profession, to straight facts and valid precedents in law.

This has nothing to do with ideology. There should, there must, at all times, be conservatives on the Court. But if there were a Justice who did “twist facts,” “misrepresent  . . . history,” “misuse precedents,” and so on—if there were a Justice somewhat unconcerned not only with what is humane or just (matters, arguably, of rhetoric) but even with what is
apposite
—such a Justice would be fundamentally unserious. If there were a Justice who had few thoughts or even arguments but only positions and strategies (like a teething Jesuit or Talmudic scholar), such a Justice would represent not the judicial mind at all but the legal mind at its most trivial and base—making, in the name of advocacy, arguments that it is precisely the business of the judiciary to cut through. It is possible that the Court has just such an unprecedented casuist in Justice Rehnquist—not a “constructionist” or even a “conservative” at all, except in caricature.