The Book of the Week is “The Brethren” by Bob Woodward and Scott Armstrong, published in 1979. This book documents the power struggles of, and kinds of cases decided by members of the U.S. Supreme Court– the highest court in the land– covering the period from autumn 1969 to the spring of 1976, during President Richard Nixon’s administration.
Annually, the Court received about five thousand petitions that were handwritten, mostly from prisoners appealing their cases. The justices ruled on only a tiny number of cases. The ones they chose to rule on, gave rise to weeks or months of scrutiny, debate, hours of research, and reams of writings. When the justices or their clerks (assistants) gave further consideration to a case, they might procrastinate reviewing the case until the next court session in the fall, or order it remanded to a lower court.
The major controversial cases involved desegregation, pornography, monopolies, abortion, freedom of the press, and the First, Fourth and Fourteenth Amendments. The Court had the final say on where local control (States’ Rights) ended and Constitutional protections began.
Warren Burger, a conservative, was the Chief Justice. His authority was exceeded only by the President and Vice President. Nevertheless, there were usually two or three justices who might vote one way or the other in any given case, as tiebreakers. So they had the real power. The Court members were always divided in their votes along liberal/conservative lines.
The early 1970’s were eventful years for the Burger Court, what with the replacements of a few justices who retired due to ill health; and attempted lobbying of two justices on a monopoly case (considered not just a conflict, but an overtly aggressive act that would have biased the justices had they not been sufficiently principled in demanding the departure of the lobbyist forthwith). Oh yes, and a near-impeachment of a president.
In June 1971, the first installment of the 47-volume Pentagon Papers was published in The New York Times. It was the job of the Court to decide the extent to which publication of the 1945-1967 study of Vietnam would affect: national security, the process of the termination of the war, and release of prisoners of war. However, the government had lied too much about the war already.
The Court– at least five justices– had to decide whether to expedite the case relating to Nixon’s turning over of audiotapes consisting of conversations of administration officials. The overall dispute was not uncommon, over the authority of two branches of the American government– the Executive and Judicial. Nixon (a member of the Executive) was attempting to claim executive privilege (invoking Constitutional protection) in not turning over the tapes. Seven of Nixon’s top aides had already been indicted by a grand jury. They had implicated unindicted coconspirators. One was the President himself.
Those portions of the tapes containing Nixon’s voice engaging in interactions of a conspiratorial nature were not protected by executive privilege. At least one justice believed that such audio evidence bespoke of obstruction of justice.
Nixon’s attorney attended the hearing that would determine the role the Court would play in presiding over Nixon’s conspiracy case. It was the attorney’s contention that Nixon would basically be the judge at his own trial, as he should get to interpret the Constitution, after the Court made a recommendation on the case law.
Read the book to learn the details of the office politics in the Court, different aspects of the endless ideological debates on various super-controversial issues, how the justices dealt with the Chief Justice’s actions, as well as Court-related lore– during a particularly tumultuous time in the nation’s political history.