(3 of 4)
Too often, however, the politicking and personal enmities depicted in The Brethren obscure what the Justices are really struggling with: the application of the law and the Constitution to complex moral and social questions like abortion, obscenity, busing, the death penalty. The notion that such issues can be considered solely in terms of abstract and impersonal principle is, of course, a myth. Inevitably there are times when the Justices end up voting their own convictions. "Result oriented" jurisprudence such as this has been criticized for years. But a Justice has to persuade his colleagues to produce a five-man majority; votes change and compromises are struck as individual opinions are exposed to the often withering scrutiny of the whole court. Ego clashes are not surprising, nor are they unique to just the Burger Court. Indeed, insiders consider this court less fractious than some of its predecessors.
Again and again in The Brethren, blatant ploys or power plays by individual Justices are thwarted by the court as a whole. A poorly reasoned opinion by one Justice is hammered into something coherent and justifiable by others. During the Watergate crisis, when Burger took the court's decision on the Nixon tapes case for himself and botched it, the other Justices conspired to wrest the actual writing of the opinion away from the chief and inserted their own judgments into the final draft. True, Stewart scoffed that the final product had been edited from a "D" to a "B" by law school grading standards, but the incident showed that the court has internal checks and balances. Lobbying by outsiders is shown to be futile. When the Washington lawyer and Franklin Roosevelt brain-truster Thomas ("Tommy the Cork") Corcoran visited his old friend Black and acquaintance Brennan to get a controversial antitrust decision reheard, or when New York Times Editor James ("Scotty") Reston telephoned Burger to talk about the Pentagon papers case, they were quickly rebuffed.
Such examples of institutional strength help offset the Justices' idiosyncrasies. "You sure can get the impression from the book that the court is an institution that works," says Co-Author Woodward. "There is strong evidence both ways. But we made a scrupulous effort to be non-judgmental." Indeed, the authors use a "just-the-facts-Ma'am" style; though the facts are not attributed, they novelistically include the Justices' innermost thoughts. In the book's final pages, Justice Stevens ponders his first year (1976) on the court. He finds himself "accustomed to watching his colleagues make pragmatic rather than principled decisions—shading the facts, twisting the law, warping logic to reconcile the unreconcilable." Even if it was not what Stevens had anticipated, the book says, "it was the reality."