The Brethren (1979) (edit title/settings)

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Characters/People edit see section history

• Chief Justice Warren E. Burger (1969-1986): One of the most frequently discussed Justices, Burger is characterized as pompous, manipulative and a mediocre legal mind. The use of his position of maintain control over case opinions is a frequent occurrence. His legal opinions are often discounted by the other justices in key cases as being lightweight and inadequate. But he is also a lonely figure, often sidelined or ignored by his colleagues and left out of backroom negotiations and the 'real' legal work of the court. His authority over the court is generally weak, but he does on several occasions manage to hold the court together on difficult issues such as abortion, desegregation and the Watergate tapes. However, he is recognized as an excellent administrator who modernizes the Supreme Court's operations and implements major reforms of the federal court system.
• Justice William J. Brennan (1956-1990): A central figure in many of the cases, Brennan is identified as the architect of many liberal majority opinions on the court during the book. Through negotiation, intrigue and deft maneuvering; he is frequently characterized as the Chief Justice's rival for control on many issues. Brennan is calculating, passionate and strategic in his approach. His legal reasoning is sound, but it is more often his ability to act as the 'glue' of the Court that sees him as one of its most influential members. His behind-the-scenes operations are central on key Burger Court majorities on matters concerning the right to privacy, abortion, freedom of speech, criminal procedure and the death penalty.
• Justice Potter Stewart (1958-1981): Another central figure in the book, Stewart was named after his death in 1985 as the key source for The Brethren. Stewart is described as a key intellectual leader in the court and one of its most important legal minds. His opinions both in writing and conference hold a lot of sway with the other justices, however his jurisprudence is variable in terms of ideology. A respected leader for his command of constitutional law and elegance in writing, he is highly influential throughout the time span of the book. His growing resentment and rivalry with Chief Justice Burger is palpably documented towards the end of the book, and he frequently allies with Brennan to wrest control over cases from the Chief.
• Justice Byron R. White (1962-1993): Serving throughout the book's tenure, Justice White is an enigmatic figure. He frequently takes a narrow, fact-specific view of cases before the Court and generally refuses to make broad pronouncements on constitutional doctrine or adhere to a specific judicial philosophy, leaving his ideological standpoints mystifying. Subsequently he is courted by most parties at various times during the six terms described. His personality is described as no-nonsense and amiable, and unlike the other Justices he is reluctant to involve himself in the politics of the the Court and the bargaining schemes over various cases.
• Justice Thurgood Marshall (1967-1991): Present throughout the book, Marshall's influence over the affairs of the court is perhaps the most marginal of the Justices. Although carrying a legendary reputation in the public eye, his jurisprudence is considered sloppy for a lack of thoroughness, and he is identified by the others as a reluctant worker. Frequently he demurs to the opinions of Brennan and Douglas, and as a result is a distant figure in many key negotiations. He enjoys flouting the pretensions of the Court, in some ways reluctant to have crossed to the other side of the bench and dismayed with the conservative trend in Court decisions.
• Justice William O. Douglas (1939-1975): A lion of the liberal wing, Douglas is a thunderous voice throughout the book for the protection of legacy of the Warren Court. Douglas is often the loudest and most determined voice for liberalism before his retirement. His determination is often the cause for consternation from the other liberals, as Douglas' uncompromising positions are responsible for losing votes in several key cases. Nearing the end of his career in the book, his legal scholarship is seen to be on a steep decline and rapidly being replaced by doctrinaire principled stances without much regard for constitutional law. He is also belligerent and unforgiving, often summarily firing or excoriating his clerks for minor infractions and hounding other members of the court for perceived slights.
• Justice William H. Rehnquist (1971-2005): Joining the court after Black's retirement, Rehnquist is the most conservative member to join the Court. He is characterized as informal and easy-going, enjoying a close relationship with his clerks and others. Somewhat of an outsider because of his harder conservative opinions, he is nonetheless respected by the others in the book for the rigor and clarity of his legal reasoning. He develops a close working relationship with Chief Justice Burger, often exerting a hidden hand influence to improve his opinions.
• Justice Harry A. Blackmun (1970-1994): Blackmun's early terms are clouded by a close association with Burger (a lifelong friend), however he emerges a key swing vote in many cases and key to building many majorities - in particular on the death penalty and abortion. His jurisprudence is considered competent, but he is a slow and indecisive, often holding up cases and and frustrating the other Justices. His preponderance to concentrate on facts and very narrow construals of the application of law make him somewhat similar to White. His narrow legal reasoning often leads to concurring opinions rather than joins.
• Justice Lewis F. Powell (1972-1987): Conservative ideologically, Powell is characterized as methodical and reasoned in his jurisprudence and highly influenced by his years in law firms (as opposed to judicial experience). An uvuncular figure, he is affectionately known as 'Lew' by his clerks and fostered a warm, family like environment around him. His honesty and politeness are stumbling blocks to some negotiations, but he is subsequently well liked by the others and influential as a voice on the court. Though siding with Burger and Rehnquist frequently, he does emerge as a key ally of the center on several issues.
• Justice John Paul Stevens (1975-2010): Arriving at the end of the book, Stevens is the newcomer in the 1975 term, but quickly establishes himself as a maverick Justice. A well respected legal reasoner, his opinions often take a completely different legal route to either the majority or dissenting opinions, a factor commented on with some amusement by the others. He emerges as a key figure in the center bloc at the end of the book.
• Justice Hugo L. Black (1937-1971): Having served as long as William Douglas and with no less of a reputation or legal mind, Black is a legacy of the New Deal era. Kindly and straightforward, his advocacy over uncompromising desegregation dominates many of the early battles in the Burger Court, and through dramatic showdowns manages to get his way in favor of strong Court dictates on the matter. Of conservative background, his votes occasionally join the conservative bench.
• Justice John M. Harlan (1955-1971): Although a frequent dissenter on the Warren Court, Harlan is a highly respected legal mind by the others and is subsequently highly influential over case opinions. He has an aristocratic bearing but a common touch, and is close friends with many of the old Warren Court. His death, along with Justice Black's, is seen as an important changing of the guard in court history in the early chapters of the book.

Setting & Locations edit see section history

• United States Supreme Court

First Sentence edit see section history

Table of Contents edit see section history

Glossary edit see section history

• Opinion: When it decides a case, the Court generally issues an opinion, which is a substantive and often long piece of writing summarizing the facts and history of the case and addressing the legal issues raised in the case. After a case is discussed, the Chief Justice (if he is in the majority) or the senior Justice in the majority assigns a single justice to author the majority opinion to a case, although in practice many Justices and clerks may contribute to an opinion's composition.
• Order: Alternatively to an opinion, the Court may issue and order. Rather than analyzing the legal issue at hand (although it may do so), an order specifically directs either the parties to the case or the courts below it to do something in response to the petition.
• Per Curiam: Literally 'by the court' in Latin, an opinion may be issued from the Court that is unsigned and implies an unanimous voice from the court.
• Petitioner: The party who appeals a case to the Court or seeks relief/stay from that body is known as the petitioner and is listed first on the case name.
• Respondent: The party who is defending against the petitioner or arguing on behalf of the other side of the case is known as the defendant and is listed section on the case name.
• Certiorari: "To be more fully informed" in Latin, often abbreviated as 'cert'. To have their case heard by the Court, parties send petitions to the Supreme Court requesting that their case be granted certiorari, usually outlining the specific constitutional question they feel to be at stake. The Justices review those petitions and if four of the nine decide that their is a legitimate question to be answered, a 'writ' is granted by the Court and the case is heard in the next term.
• Docket: The cases that have been granted cert and will be heard during the term is known as the docket.
• Dissenting Opinion: Justices not in the majority on a case may choose to write a dissent, outlining why they believe the majority is wrong on the case and documenting their own legal reasoning on the question at hand. There may be multiple dissents on a case, and other justices may choose to 'join' those dissents as well.
• Concurring Opinion: Justices may arrive at the same conclusions but with different legal reasoning. If a Justice does not agree with the some or all of the reasoning laid out in the majority he or she may choose to author a separate concurring opinion, still counting as a vote for the majority outcome, but not endorsing the majority author's specific approach to that outcome.
• Vacate: When the Supreme Court vacates a lower court ruling, it strips that ruling of effect, often in order to send the case back to the lower court for further proceedings.
• Remand: A decision which calls for the case to be remanded means to hand it back to the lower court(s) for further consideration, usually with specific instructions or conclusions on the manner in which that should be done.
• Oral Argument: Cases granted cert will be heard during the term by oral argument. Both sides are given a standard 30 minutes each to make their case. In practice the research, conference discussions and petitions surrounding a case are now much more extensive and influential than the relatively short oral argument sessions. Justices will frequently interrupt the parties in oral argument to ask questions.

Themes & Symbolism edit see section history

• Warren Court: An ongoing theme in the book is the legacy of the previous court which had been infamously led by Earl Warren from 1953 to 1969. Warren led a liberal majority that used judicial power in dramatic fashion, to the consternation of conservative opponents. The Warren Court expanded civil rights, civil liberties, judicial power, and the federal power in dramatic ways. Warren Burger's appointment to replace Warren by President Richard Nixon in 1969 was a political move designed to reign in the Court and hopefully roll-back much of what conservatives believed to be an undemocratic expansion of the power of government and civil rights by an unelected yet clearly partisan Supreme Court. The shadow of the Warren Court frequently looms over many of the decisions made by the Burger Court and motivates in particular the behavior of William O. Douglas and William F. Brennan, the two leading liberal justices on the Court who spend much of their energy trying to preserve the Warren Court legacy and prevent its dismantlement by the increasing conservative appointees from Richard Nixon. Douglas' desperate attempts to stay on the Court even when faced with severely debilitating illness poignantly highlights the ardency with which the surviving Warren Court members believe in their cause and their struggle to defend it against a wave of conservatism.
• Intrigue: Perhaps the strongest theme drawn out by Woodward and Armstrong is that of the intrigue and bargaining that is central to the behind-the-scenes work of the court. Justices in conference often reserve opinion or have less than frank conversations. Behind the scenes, the Justices bargain for each others votes and specifically write memos and opinions designed to co-opt the votes of other Justices. William Brennan is detailed in particular on this manner, on innumerable occasions personally lobbying and negotiating with other Justices (often out of the view of some members of the Court or even actively deceiving them) to attempt to build a coalition behind his own specific view or often for a broader but not strictly legalistic purpose. Hugo Black and William Douglas' negotiating style fits the theme in another way. The book catalogs Black's refusal on several key desegregation cases to join the majority and to instead write a blistering dissent unless the Court came around to his (usually most doctrinaire and sometimes legally impractical) position. Because of the high need for the sake of a united front on this sensitive and important legal issue, and the fact that any division on the court would be exploited by Southern resistance to continue delaying desegregation, Black frequently wins over his exasperated colleagues. Chief Justice Warren Burger is portrayed in this light in yet another way. Although far less involved with the behind-the-scenes wheeling and dealing that categorizes Brennan (and often Potter Stewart), the Chief frequently uses (or perhaps even abuses) the powers of his office to manipulate Court and increase his control over cases. Because the Chief assigns the majority opinion if he is in the majority, Burger often withholds his vote in conferences or changes at will post-conference in order to keep that right, much to the frustration of his colleagues. In key cases, this is often used to assign the opinion to someone he believes will be closest to his own opinion on the issue. Similarly his power to assign is used to reward or punish those on the Court who are in or out of his favor. Many episodes of the political intrigue seen in the book is described as an attempt to out-outmaneuver Burger on the outcomes of certain cases.
• Centrism: The power of the centrist bloc of the Court is highlighted throughout the book and is the last thing commented in the final pages. Is is, perhaps, heavily influenced by the fact that the primary source for the book was leading centrist Potter Stewart, and the other leading centrist Byron White is also known to have been another major source. However, frequently battles for control over the opinions of the court on controversial cases hinge on the central votes of Stewart or White (or earlier, John Harlan), with John Paul Stevens, Harry Blackmun or Lewis Powell sometimes but much less often making up a crucial vote as well. Brennan, Douglas and Thurgood Marshall are nearly always solidly Liberal and Burger and Rehnquist usually conservative (though Burger is often flexible for the sake of being in the majority). The liberal/conservative 5 are the least flatteringly described in the book, whilst comparatively very little personal criticism falls upon Stewart, White, Powell, Stevens or Blackmun. Again, this possibly has a great deal to do with the personal biases of Woodward and Armstrong's sources rather than anything else, however the overall effect is the power of the centrist votes in the Court are strongly emphasized. Indeed, it is common for these Justices to the only capable of building majority opinions measured enough to capture the consensus of a majority of colleagues.
• Conservatism: The developing theme in response to the Warren Court legacy towards the end of the book is the impact of conservative jurisprudence on the court. However, it is not as clear in its influence as the other themes. Although referred to with much consternation at many points (particularly upon the appointments of Burger, Blackmun, Powell and Rehnquist), few Warren Court precedents are overturned during the book and in fact many are extended, often with the support or help of Chief Justice Burger. Much more influence is exerted by the liberal wing and their positions than the conservative wing. However, we get a taste of this changing as the book wears on, with more of the Warren Court heirs dying or retiring and their replacement by more moderate members. The strength and clarity of William Rehnquist's conservative jurisprudence is revealed in key battles in the 1974/1975 terms and perhaps hints at his future influence as legal scholar. Court arguments over the constitutionality of the death penalty are developed over the book in the conservative direction that would see their reintroduction just beyond the scope of the book in 1976.
• Constitutional Law: Naturally, as a book for the general public complex discussions of law are not replicated in the book but heavily summarized for the reader into simplistic positions, with the legal reasoning left as having happened 'off-stage'. However, this is intentional and has the powerful effect of highlighting the difficulty of determining constitutional interpretations for practical questions in 20th century America. Most of the major cases considered are not shown to rely solely on specific points of constitutional law but often broad principles and practical considerations. This is not commented on directly, and the authors offer no ongoing commentary on this point, but the line is only very vaguely drawn between the political and legal natures of the Court. This is obliquely observed at several points, with comparisons drawn between the Court and a legislature on several contentious matters. However, this is an artifact somewhat of the nature of the cases that are focused on. Indeed, cases that do rest on fairly straightforward constitutional law matters are referred to Justices as uninteresting at several points in the book.
• Unseen Influence: Although the book fundamentally documents unseen influence as a matter of course given that all Supreme Court work is generally behind-the-curtain, even within the conferences and amongst the Justices there is a great deal of unacknowledged influence by the clerks. In the day-to-day workings of the court, the clerks fraternize between the office, trading information and trying to influence the outcomes. Most notably during a mental health case a particularly activist set of clerks from several chambers join together to exert pressure on their Justices to deliver a liberal outcome in favor of the mentally disabled. This is sometimes manipulated by the Justices, who use the clerks as proxies to commit actions they themselves could not undertake, however by and large much seems to occur without much of the Justices' expressed knowledge or approval. The clerks, being younger, are ideologically more left-wing than many of the judges, and they use their influence to those ends. Because clerks often research and even draft opinions in many cases, this itself has a surprising amount of influence on the outcome. On a couple of occasions court opinions putatively written by Black and Marshall are actually written by a clerk with little change by the Justices.

Authors & Contributors edit see section history

1. Bob Woodward (Author)
2. Scott Armstrong (Author)

First Edition edit see section history

Classification edit see section history

• Library of Congress: KF8742.W66
• Dewey: 347.7326

Notes for Parents edit see section history

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Subjects edit see section history

• Books › Nonfiction › Government › Constitutions
• Books › Nonfiction › Government › Legal System
• Books › History › Americas › United States
• Books › Nonfiction › Politics
• Books › History › World

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