The Nine, I decided my itch for Supreme Court non-fiction had not quite been scratched. So I decided to pick up "The Brethren: Inside the Supreme Court." This book was published in 1979, covering an entirely different period of the Court's history -- the first several years under Chief Justice Warren Burger.
This book was written by Bob Woodward and Scott Armstrong. The former is the Woodward of the famous Woodward and Bernstein team that were crucial in revealing the Watergate conspiracy (and who chronicled the story in All the President's Men). The Brethren is built in that same investigative journalism tradition. The opening explains that the stories within were revealed to the authors on condition of anonymity, but that they're almost always verified by two or more sources.
In the 35 years since the book was published, the Supreme Court has completely transformed. None of the Justices of the 1969-1975 period the book covers are still serving; all but one is now dead. It's been decades since the revelation that Justice Potter Stewart was the primary source of information for the book. (Though it wouldn't have been that hard to read between the lines on that; among the Justices who were actually there for all six years covered, Stewart certainly comes off looking the best.)
Today, The Brethren is a fascinating study in contrast, punctuated by a few things that haven't changed much. Chief Justice Burger, Richard Nixon's first Supreme Court appointee, takes control as the book begins, following the long and celebrated career of Earl Warren. Burger is determined to be just as revered, and equally determined to steer the court sharply right in a more conservative direction. Nixon would end up placing four men on the Supreme Court before his resignation, more Justices than any president since has appointed, and yet one of the surprising things of this book (and this period of time) is that the Court in fact did not fully lurch as sharply to the right as one would imagine.
This is the period of time in which the Roe v. Wade decision was handed down in a 7-2 decision, legalizing abortion nationwide. It was a time in which most laws barring obscenity were struck down as violations of the First Amendment. It was a time in which numerous campaign finance reforms were upheld (many the very laws that in the last few years finally have been overturned by the Roberts Supreme Court, which finally has moved as far to the right as Nixon and Burger might have envisioned).
And yet this is also the period of time in which a nationwide moratorium on the death penalty was held in place for many years before giving way to a new precedent allowing executions. It was a time in which Fourth Amendment precedents limiting police actions were eroded. In short, it was a time where the Supreme court appeared to fluctuate between two political poles a great deal more than it does today.
Interestingly, there seemed to be a lot more give and take in the process back then. I suppose until the day someone publishes a similar expose inside the Roberts Court, we won't really know for sure if all the votes are as rigid as they appear to be in the published opinions. But The Brethren presents a number of cases in which multiple Justices switched their votes upon being persuaded by a convincing argument.
But it was also a more naive time. The book follows a number of recurring legal matters, and the landmark cases in which the Justices apparently thought they'd disposed of the issues once and for all, only to wind up revisiting them a short while later. There's the issue of desegregation in schools, brought about by a policy of extensive busing of children to other districts. There's the issue of the death penalty, which the Justices hilariously-sadly thought would never come up again when they ruled that it was capricious application of the penalty that made it unconstitutional. (Surely no state would respond by making the death penalty mandatory for a crime, they foolishly reasoned.)
The real takeaway from The Brethren is that Chief Justice Burger was an inept buffoon. Every other Justice seems to be critical of him, characterizing him as paper pushing management with little real command of legal principles. Time and again, the book shows him changing his votes not on any merits, but out of a desire to control which Justice would write the majority opinion in a case. (The Nine's brief mention of Burger in the opening pages confirms this assessment.)
Other justices are painted in unflattering terms as well. William O. Douglas, the longest serving Justice in Supreme Court history, was so determined to stay on the Court that he worked a full year after suffering a largely paralyzing stroke -- and then continued to try to work even after retiring from the job. Thurgood Marshall, the first black Justice of the Supreme Court, is characterized as a follower of other liberal Court members who wasn't even always aware of the arguments his own clerks wrote in his name. Harry Blackmun is portrayed as so paralyzed by his hyper-attention to detail that he couldn't get any work done in a timely manner. William Rehnquist is an affable but calculating hard right-winger who appeared to be slowly achieving the political momentum Burger imagined. (Authors Woodward and Armstrong had no way of knowing that Rehnquist would become Chief Justice himself seven years later.)
Fascinating as the book is, it does have a few flaws. One is that there's very little narrative throughline to it. The authors are simply presenting several years in the life of the Supreme Court. There's no "ending" as such; Warren Burger wasn't even halfway through his time on the job when this was published. Another is that the book devotes almost its entire 1974 chapter to the Watergate case, without really providing enough background to fully comprehend that case. Both these choices are understandable in context. No reader of the time wouldn't have been intimately familiar with the details of the Watergate scandal, and the scope and importance of the case would have well justified so many pages of the book. But to a modern reader, the story needs a bit more exposition.
Overall, it's an excellent book. But it's very much a history book, in contrast to other, more current things you might read about the Supreme Court. If that sounds interesting to you, then I'd certainly recommend picking it up. I give The Brethren an A-.