The Brethren: Inside the Supreme Court.

• Author: Garrow, David J.

Bob Woodward and Scott Armstrong's book The Brethren (1) was a 1979 blockbuster that generated extensive controversy both inside and outside the Court. Their sources had allowed Woodward and Armstrong access to private documents detailing the Court's consideration of argued cases and had regaled the two reporters with stories about behind-the-scenes back-biting amongst the Burger Court's members. A newly available file of the Justices' private correspondence about the book dramatically increases our knowledge of The Brethren's impact on the Burger Court. The new file, contained in the personal papers of the late Justice Lewis F. Powell, Jr., (2) offers considerable evidence indicating which Justices spoke with Woodward and/or Armstrong. The documents also reveal that the Justices were deeply worried about the book's impending disclosures for more than two years before it appeared. More substantively, Powell's file details how before The Brethren's publication as well as after, both Justices and former law clerks were busily engaged in private damage control by insisting--sometimes convincingly and sometimes not at all--that they were not among the many sources. And perhaps most notably of all, the new file suggests that the Court's handling of its widely-criticized 1980 summary decision in Snepp v. United States (3) was significantly influenced by the fury toward "leakers" that Powell and some of his fellow Justices had developed during the very months when Snepp was under consideration within the Court.

I

Bob Woodward now readily confirms, as Powell's own documents explicitly indicate, that Powell, who died in 1998, was among the Burger Court jurists who talked with him and/or Armstrong. (4) Woodward and Armstrong stated in 1979 that a total of five Justices had actively assisted them, (5) and Woodward himself, in a 1989 Playboy interview with the late J. Anthony Lukas, identified former Justice Potter Stewart, who had died in 1985, as The Brethren's secret instigator and primary early source. (6) In two extensive conversations in November 2000 and February 2001, Woodward also confirmed that Harry Blackmun, who passed away in 1999, was among the Justices who spoke with Armstrong and him. (7) Woodward additionally identified Powell as the unnamed Justice whom he had told Lukas in 1989 had invited him to the Court for an immediate conversation when Woodward had first telephoned him and who then talked with Woodward for hours on at least three successive days. (8) Furthermore, in keeping with his 1989 statement to Lukas that he and Armstrong would willingly identify which Justices had spoken with them once those Justices had died, (9) Woodward obliquely but explicitly confirmed that none of three other now-deceased Justices, William J. Brennan, Jr., Thurgood Marshall, and Chief Justice Warren E. Burger, had been among the five who talked with them. (10) Thus the two other Justices who spoke with Woodward and Armstrong must have come from amongst the remaining trio of William H. Rehnquist, Byron R. White, and John Paul Stevens, the latter of whom joined the Court only midway through the last term that The Brethren covers, 1975-76. The documents in Justice Powell's file very strongly suggest that now-Chief Justice Rehnquist was one of the two, and some of Powell's written comments suggest that now-retired Justice White is more likely than Justice Stevens to have been the other. (11)

Justice Powell's file on what he and others at the Court called "The Book" also details how Justice William J. Brennan, Jr., whom some early critics of The Brethren mistakenly concluded was one of the authors' most important sources, forcefully and unequivocally told his colleagues that he had provided Woodward and Armstrong with absolutely no assistance whatsoever.

Woodward described to Lukas in 1989 how The Brethren's origins lay in a chance conversation with Stewart at an April 1977 party hosted by Washington Post publisher Katherine Graham. Woodward parlayed that meeting into an invitation to Stewart's home a few evenings later, where the Justice--at least in Woodward's telling--gave vent to his "anger" and "disdain" toward Chief Justice Warren Burger and spent several hours describing in "incredible detail" how each of his colleagues behaved during the Justices' private conferences. Woodward told Lukas that Stewart "knew what he was doing and I think he almost hoped that he could bring Warren Burger down by launching this inquiry into how he ran the Court." (12)

Stewart's unprecedented openness--"Look, any time you want anything, or you want to talk, you call. I'll answer any question," Woodward quoted him as saying that April night (13)--launched Woodward and his partner into full-time work on the book in the summer of 1977. By late September Woodward had also had his successive conversations with Lewis Powell. On September 28, 1977, five days before the start of the Court's new term, the Justices had an extensive conference discussion "about Bob Woodward." It may not have been their first, and it apparently was stimulated by Warren Burger's desire to have the conference impose upon all Justices an unwritten but nonetheless ostensibly binding rule barring any and all contact with any journalist. (14)

After that conference discussion, Lewis Powell wrote a letter of objection to Burger that he left unsent. (15) In it Powell acknowledged that "I have talked to Bob Woodward at his request about his proposed book," but he stressed that "I never reveal--even to my wife Jo--what goes on in the Conference Room." Powell contended that "we should not foreclose all conversations with representatives of the media," and said he had been "more than a little discomforted by some of the Conference conversations about this subject" that suggested otherwise. Powell concluded that "if those who elect not to talk to media representatives are concerned that those of us who do may violate confidences, I would prefer a policy of no communication whatever--despite my own conviction that this is not in the best interest of the Court as an institution." (16)

One week later Powell sent Woodward a letter intended to document Powell's insistence that he had told Woodward nothing of consequence. He decorously enclosed for Woodward copies of several innocuous speeches he had given and almost mockingly added that "I think you also will find quite helpful a film that is shown here at the Court fairly regularly for tourists." (17)

Woodward and Armstrong's work continued apace through the balance of 1977 and the first months of 1978. In June 1978, Washington's Legal Times published an odd duo of stories. One, by then-editor David Beckwith, hyped the forthcoming book--still almost eighteen months away from publication--as "the biggest leak of all." (18) Helped in significant part by comments from Woodward himself, Beckwith stated that the two authors "have accumulated a staggering amount of unpublished information" and had completed a draft in which the "harshest criticism" was aimed at Chief Justice Burger and Justice Marshall. The book was now "a frequent topic of hand-wringing conversations and denials of complicity at the Court," Beckwith said, and it had produced "a mood of anger and frustration among current Justices. Byron White is reported to be particularly livid." (19) A second article, by well-known Washington practitioners and former Supreme Court law clerks E. Barrett Prettyman, Jr., and Allen R. Snyder, emphasized how Woodward and Armstrong had obtained copies of countless internal Court documents and advanced a Burger-like argument that individual Justices should be prohibited from disclosing any such materials. (20)

Fast on the heels of the Legal Times stories came a new round of requests from the authors to Justices and former clerks. On July 7, Woodward called Powell seeking another face-to-face interview and voicing "concern that there had been a `whispering campaign' against his book." Woodward confirmed that there was now a complete first draft and told Powell, as Powell recounted in a memo, that he wanted "to make sure that he is not making some erroneous statements about members of the Court or its processes." Powell declined the request, recounting in the memo that "in view of the documentary materials that we have heard are in" Woodward's hands, "I thought it inadvisable to put myself in the position of appearing to assist him." (21)

Four days after Woodward's request, Powell telephoned both Potter Stewart and "Bill" Rehnquist. Powell's private memo states that Rehnquist "had had a similar request about ten days ago from Scott Armstrong, and had given Scott a negative answer--after Bill talked to me." Powell then called Woodward to again say "no," (22) but the very next day Woodward renewed his approaches to some of Powell's most knowledgeable former clerks, telling them--just as he had Powell--that he wanted their input so as to avoid unnecessary mistakes. One former clerk who heard from Woodward warned Powell that same day that the book would...