In keeping with the theme of this month's issue, Past-Perfect casts a look back at America's most famous "tell-all" book about the Supreme Court. The Brethren, the 1979 best-seller by Bob Woodward & Scott Armstrong, revealed the inner-workings of Chief Justice Warren Burger's Court in a way that the American public had never before been exposed to the federal judiciary. Not surprisingly, the book generated extraordinary controversy and the press subjected it to scathing review. Alexander Wohl canvasses the field of press criticism given The Brethern shortly after its publication and sanguinely reflects on the real-world impact that it and Closed Chambers are likely to have on the institution of the Supreme Court.

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law

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Commentary

Those Who Do Not Remember the Past . . .
Closed Chambers -- An Eerie Echo Eighteen Years After The Brethren

by Alexander Wohl

It should come as no surprise that the Supreme Court's recent budget request of Congress included a sizeable sum for building a protective wall around the Court. The irony of such a wall, however, is that it would do little to prevent what the Court no doubt perceives as the most dangerous kind of attack upon it -- that coming from within the Court "family" itself and revealing the inner workings of the Court.

The latest to "betray" the inner sanctum is Edward Lazarus, a former clerk to Justice Harry Blackmun, whose book Closed Chambers proudly touts its link to one of the leading tell-alls, The Brethren, Bob Woodward and Scott Armstrong's 1979 best-selling expose of the Burger Court. (Advertisements for the new book include excerpts from reviews suggesting that it "may be even more damaging than The Brethren.") Although the value of Lazarus's revelations and conclusions are still being evaluated, much of the commentary and criticism of this book echo what was said about The Brethren eighteen years ago, and address the same issues for which reviewers are taking the author of Closed Chambers to task, not the least of which is the breach in confidentiality of law clerks who played a critical role in each of the books' creation. (Woodward and Armstrong asserted that they conducted interviews with, among others, more than 170 former law clerks.)

It is not the first time that a book has either been labeled, or attempted to claim the mantle of, the "new" Brethren. The second volume of the late Justice William O. Douglas's memoirs about his years on the Court -- an anecdotal calumny against many of Washington's public officials, judicial and otherwise -- was published the year after Woodward and Armstrong's tell-all. In 1983, Bernard Schwartz published Superchief, his masterful "inside" look at the Warren Court's decision-making process (as well as an abridged version for the lay public). More recently, some suggested that James Simon's The Center Holds (1995) would unmask the decisions and internal squabbles within the Rehnquist Court, and Peter Irons's collection of oral argument transcripts and recordings, May It Please The Court (1997), nearly generated a lawsuit by the Court to stop its publication. None of these efforts, however, have matched the impact or perceived disclosures of The Brethren.

Although a few reviewers like Malcolm Forbes called The Brethren "extraordinary journalism at its probing, digging, documenting best," that kind of positive appraisal was the exception. More typical were comments criticizing both the book's style and methodology and its emphasis on personalities and gossip over law and facts, such as those of New York University law professor Graham Hughes, writing in The New Republic, who noted that the book was written in a "breathless style, in the manner of a poorly written adventure story for children." Elliott Abrams's review in the Heritage Foundation's Policy Review called it the equivalent of "a bound volume of People magazine with insights of comparable sophistication." And John Leonard, reviewing the book in the daily New York Times, targeted its failure to record citations. It "read[s] everybody's mind without identifying a single source . . . . There is no bibliography. The footnotes, roughly one to every 10 pages of text, fail to substantiate any of the mind-reading. If The Brethren were a high school term paper, any teacher . . . would give it an 'F.'"

Anthony Lewis, writing in The New York Review of Books, pointed out that The Brethren was filled with "character assassination," and "hit and run journalism," as well as significant factual errors, all of which raise questions "about the authors understanding of what they describe." Reading this book, he wrote, "one yearns for a sense of history, a degree of sophistication." The New Republic, agreed, noting "The law is not an important character in this book. The authors are uncomfortable dealing with it, as if they were writing about Picasso but knew nothing about painting."

The real venom of these articles, however, was reserved for the role played by the book's illicit primary sources, the former judicial clerks. As Professor Gerald Gunther, himself a former clerk for Chief Justice Earl Warren, noted in an interview with the Canadian newsmagazine Macleans, "When I clerked for the Supreme Court I felt it was a damned confidential job. Both the skill of Woodward and Armstrong and the insensitivity of the law clerks show a significant and depressing change of standards." In a lengthy review in Harpers that focused on the role of the law clerks, novelist George V. Higgins concluded that a justice should no longer feel completely free in revealing confidential information to his clerks. "The clerks ran off at the mouth to the reporters," he said. "Not all the clerks, in all likelihood, but enough of them to destroy a long and serviceable tradition of the American Judiciary."

It was a view adopted by conservatives and liberals alike. James Kilpatrick, reviewing the book for The National Review, noted that although the Court had endured previous leaks, "the two reporters in this case benefited not merely from leaks but from floods, torrents, tidal waves of confidential material. . . . If there be scandal in The Brethren," he continued, "this is it. Clerks are retained by members of the Court under conditions of absolute confidence. Ordinarily, these young lawyers are the best and the brightest of recent graduates. Many of them, it seems apparent, learned much law but nothing of honor. Their perfidy provides the most disturbing aspect of the book."

George Will, writing in Newsweek, asserted that many of the clerks "were marinated in the strong juices of Vietnam-era campuses. An anti-institutional aroma seems to have clung to some of them. Many clerks betrayed not merely their institution, but also standards of common decency." William Safire asked whether "this breach of the confidentiality of the judges' conference room arguments [will] have a chilling effect on free and spirited argument." And Elliot Abrams, noting that clerks are now "a separate and powerful center of influence on the Court, manipulating cases, issues, and Justices to achieve their political goals," concluded that "[a]ll of these people should have been fired; of course none was." (That Abrams and other conservatives accepted the truth of Woodward and Armstrong's reporting is somewhat ironic in light of earlier challenges of "facts" reported by Woodward about Richard Nixon during Watergate.)

Liberals were only slightly less critical. First Amendment advocate Floyd Abrams, writing in Fortune Magazine, suggested that "on the evidence of this best-selling new book, the law clerks now think that they run the place -- or that they should. [They] seem almost berserk with the flush of unaccustomed power." Renata Adler, writing in The New York Times Book Review, noted that the clerks' "patronizing, self-infatuated trivialization" of the relationship among the justices was a "serious subtext" of the book. Instead of criticizing the clerks, Anthony Lewis focused on the accuracy of what was reported they said by tracking down Justice Brennan's clerks to disprove one of the more outrageous charges against Brennan.

It is inevitable that individuals with little perspective on law or life, as well as an exaggerated sense of their own importance and abilities, might misinterpret what goes on behind the scenes, and even feel the need to share with others what they see with their unique access. As Justice Lewis Powell, speaking indirectly on the subject in May 1980, said, "Law clerks, who are at the Court only for a year, and usually have not practiced, may take personally the professional disagreements among us. A clerk's loyalty to his or her Justice tends to be high. This sometimes may cause a clerk -- disappointed by the outcome of a particular case -- to think harshly of Justices who have disagreed with his or her 'boss.'"

But Floyd Abrams went further, criticizing the authors for what he called making heroes of the clerks. The stories and anecdotes that make up The Brethren, he said, are "surely not history; [they are] not even historical gossip. It is the talk of overbright children of their own importance, the kind of material that might be published in an underground high-school newspaper that had polled the students about their teachers and obtained, as well, some internal school documents. It is the language of authors held hostage to their young sources." The hero worship apparently was mutual. People Magazine reported that Woodward's "star quality" was helpful in getting the clerks to talk. "I wanted to meet him. I was flattered that he wanted to interview me," said one.

Ever since Justice Horace Grey hired (at his own expense) the first law Supreme Court law clerk, no doubt there have been concerns about the powers and discretion of those clerks. Justice Harlan Fiske Stone, for instance, commented in 1937 that clerks would likely be unable to refrain from commenting about their observations -- which come from intimate association into which they are invited -- and in fact probably leaked them in a manner that publicized "many unfortunate statements, most of them either untrue or so distorted as to convey a wholly erroneous impression."

But the significance of these and other leaks and their impact on the Court over time is probably negligible. As Renata Adler concluded about The Brethren, for all its disclosures the book "revealed no scandals; and, although the authors clearly do not know it, no revelations that would astonish any lawyer or other student of the Court."

Although some have suggested that Edward Lazarus may be legally liable for ethical violations resulting from breaches of confidence, the merit, not to mention the success of such a prosecution is questionable. Indeed, it may be healthy for the Court -- or any institution so shrouded in secrecy -- to have its veil occasionally lifted. As ABC News reporter Robert Zelnick pointed out in his review of The Brethren for The Christian Science Monitor, this is "the way the game is played in Washington." The "wonder is not that the authors pierced the veil of judicial secrecy but that the Supreme Court remained immune to this sort of thing as long as it did." As the New York Times reviewer noted in 1979, "[t]he Court, with the possible exception of the relation of clerkship, survives -- no more and no less public than it ever was." The same might be said of other tell-all books about the Court, including the most recent one.

Alexander Wohl, a Washington, D.C. writer and lawyer, is a contributing editor of  Biography magazine and an Adjunct Professor in the Department of Justice, Law & Society at American University.

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