To say that Bob Woodward and Scott Armstrong have written an ambitious but gravely flawed book is to miss the nub of the Problem right at the beginning. In fact, nobody wrotem "The Brethren." Mr. Woodward and Mr. Armstron seem to have functioned as a pair of executive producers -- like the folks who produce television soap operas -- presiding over a committee of researchers, writers, reporters, editors, and kibitzers.
In their credits, the authors list some 30 individuals who had at least some editorial involvement in the project, including two who "labored as long and as hard . . . as the authors," a third who "helped greatly with suggestions and writing," a fourth who" devoted several months to recrafting, editing, and rewriting the initial drafts," and a fifth who "nurtured this book to completion."
With all that laboring, suggesting, writing, recrafting, editing, rewriting, and nurturing going on, it's a small wonder that nobody seems to have done much thinking.m At least not about the Supreme Court during the 1969-75 terms, the first six years under Chief Justice Warren E. Burger.
That's a pity, because it was a pivotal time in the history of the court and the nation, one that deserves more serious treatment than "The Brethren" provides.
Instead the authors offer an endless stream of facts, anecdotes, restructured conversations, memo excerpts, and gossip, most dealing with the interactions among the justices as they debated which cases to consider, how to rule on them, and how to present their individual views.
Most of this kind of activity occurs in the judicial conference or the chambers of individual justices. Only the justices themselves attend the conference, while their clerks -- usually top graduates of the best law schools selected to help the justices research and draft opinions -- are often privy to written exchanges among the justices and share the personal reflections of the justice for whom they work.
The Woodward-and-Armstrong team interviewed scores of former clerks and were able to coax many into parting with choice bits of confidential information, including oral recollections of justices' views of one another's work and file drawers full of internal court drafts and memorandums.
This breach of confidentiality has outraged many, but it clearly had at least the tacit endorsement of several sitting and former justices. It 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 of this sort of thing as long as it did.
The damage will be small. What these eminent jurists say behind one another's backs is small stuff compared with the welltargeted missiles aimed at majority opinions in dissents over the years.
And if the Chief Justice in particular is portrayed in "The Brethren" as a shallow, conniving, overly political, and occasionally dissembling martinet, he can at least take solace in the fact that a lot worse is being said these days about presidents, senators, clergymen, oil company executives, and -- perish the thought -- even journalists.
As he did with his former collaborator Carl Bernstein in "The Final Days," Mr. Woodward again destroys much of his book's historical value by including excessive amounts of contrived conversation, reconstructed thought processes, and detail.
My favorite example is one judicial conference in which, we are told, Justice William O. Douglas "clicked off several sentences on his general position, moved to his next point, kicking the table as he paused, jumped to another point without a connective, flapped his ear nervously while staring coldly across the table, and finally, again without warning, tied up his first and last points in terse summation."
Frankly, I doubt if anyone in the world could vouch for the accuracy of that description, including the ear-flapping table-kicking Justice Douglas himself.
"The Brethren" does take us inside the court for a fascinating view of how things really work: how justices build majorities for their points of view and, occasionally, how they lose them; how the chief justice can use his power to assign cases to impress his philosophy on the final decision; the unique role played by the law clerks.
But that is all a page, or at best a chapter, in the story of the Burger years. Justice Burger succeeded Earl Warren, one of the great and influential men of his era. The Warren court had pressed its activist philosophy to the frontiers of political tolerance in the United States, stripping away centuries of racial customs in the South; rewriting criminal codes, rules of evidence, and election laws.
Richard Nixon had campaigned against the judicial philosophy of the Warren court, and Chief Justice Burger was his first and most important appointee. Balancing the kind of political mandate that no sensible chief justice could have ignored, but also balancing the mandates of precedent and his own notions of justice and fair play, Mr. Burger has walked a delicate, careful, strong-willed, sometimes erroneous, but -- I would argue -- essentially humane line.
While redressing somewhat the legal balance between the law-enforcement and criminal-defendant communities, the Burger court has reversed precious little of the Warren-era precedent and has even broken some new ground in such areas as Northern school desegregation, sex discrimination, and private abortion rights.
And, of course, Warren Burger and his court rose magnificently to the occasion as the ultimate guardian of the constitutional system of checks and balances in the Nixon- tapes case.
Chief Justice Burger and his court are entitled to more thoughtful if not more sympathetic treatment than they have received in "The Brethren." For the reader, the book stands as a triumph of method over perspective.