Book Club: The Brethren introduces Tricky Dick’s chief justice

Episode Notes

Transcript

Lee Rawles:

Welcome to the Modern Law Library. I’m your host, Lee Rawles, and I have the first guest for our book club covering The Brethren Inside the Supreme Court by Bob Woodward and Scott Armstrong. I’m joined by Victor Li assistant managing editor of the ABA Journal, my friend and former colleague. Victor is the author of two books. He also has his JD from the Tulane University School of Law, and I’m so thrilled he could join us today to discuss The Brethren Inside the Supreme Court by Bob Woodward and Scott Armstrong. Victor, I mentioned that we were going to be reading TheBrethren and I didn’t have to tell you to go out and pick up the book. You said this is one of your favorites. So can you tell our readers a little bit about how you first read The Brethren?

Victor Li:

Sure. I think like we were talking about before the show, my dad had a copy of the book that he got, probably one of those book sales or one of those things. And I saw it on my dad’s bookshelf and I was like, “Oh, what’s that? ” And so he said, “Oh, it’s a book about the Supreme Court.” And so I started reading it and I was fascinated with it. So it’s still one of my favorite books to this day. I still go back and reread it every once in a while. And actually, it’s really cool to revisit some of these things after you’ve practiced law, after you’ve been practicing journalism and whatnot, so you kind of understand a little bit more about how things get constructed and whatnot. And so I still get something out of it even now. And it’s a great book, still one of my favorites.

And yeah, I think we were showing off our copies earlier. We have the same or a similar edition, although I think mine’s about to fall apart that the dust jacket is on its last legs and whatnot, but the wards are still there and everything. So that’s the important thing.

Lee Rawles:

Now, I read it when I was midway through college. How old do you think you were?

Victor Li:

Probably high school. So either like 10th or 11th grade, I think.

Lee Rawles:

And did you already know that you wanted to go to law school? Do you think this had any sort of impact in that?

Victor Li:

I think it was part of it. Yeah. I mean, I’d always been interested in the Supreme Court, especially once I heard about it, like when I first learned about it in middle school even. And even in high school, like when I was … I had a couple teachers that taught the Supreme Court very, very closely, very in depth. They had us research cases and talk about cases in class and things like that. And so it’s always been an interest of mine. I mean, obviously when you’re a kid and you can dream, you think, oh, maybe one day I’ll get to argue in front of the court or maybe I’ll get to sit on the court. And then you quickly realize that’s probably not going to be your life. You probably have a better chance of getting in the NBA than you do of doing that.

But yeah, I mean, when I was a kid, sky’s the limit at that point. And so it definitely was one of the things that made me interested in wanting to be a lawyer. I wouldn’t say it was the main thing, but it definitely piqued my interest in it. Absolutely.

Lee Rawles:

Well, this first episode, I asked readers to look at the introduction and prologue. And one of the reasons I thought you’d be the perfect guest is you are my go- to Nixon expert and you just released a book called Supreme Pressure: The Rejection of John J. Parker and the Birth of the Modern Supreme Court Confirmation Process. And when we opened the book, there is going to be this transition from the Earl Warren Court and Nixon is going to get to appoint a new Chief Justice. Now, your book, and if you wouldn’t mind telling us a little bit about it, it takes place more like the 1930s, but I’m really interested to hear what you have to say about Nixon’s choices for the Chief Justice, given your research into the modern Supreme Court confirmation process.

Victor Li:

Thank you for that. I mean, like you said, my latest book was released in January. It’s called Supreme Pressure: The Rejection of John J. Parker and Birth of the Modern Supreme Court Confirmation Process. And yeah, I mean, John J. Parker was nominated by Herbert Hoover. That one took place in 1930 and he was rejected because of, on paper, he seemed like a perfect candidate. Hoover appointed him for a lot of the same reasons that guided Nixon actually when he was making his picks. Herbert Hoover wanted someone from the South. Republicans were looking to break the solid South that the Democrats always seemed to have in presidential elections. And he wanted someone young, someone who could be influential and kind of sit in the court for a long time. And Parker seemed like the perfect candidate for him. But then there had been some problems brewing over the last several years as far as Supreme Court confirmation battles.

And in fact, the process that happened directly before Parker was Charles Evans Hughes when he got appointed by Hoover to be the Chief Justice. There was a big fight in the Supreme Court, which was kind of odd because Hughes was a pretty … Hughes was a very respected jurist. He was widely considered to be the perfect candidate. And he also had gravitas to someone who’d been on the court before, someone who had run for president and almost won. And so the idea that he would be opposed was kind of strange, but there were some macro forces at play as far as how people thought the Supreme Court should interpret the Constitution, what kind of people they should be protecting. This is during an era where they tended to protect big business more than they protected individuals. This was a time where they kind of ignored civil rights groups and whatnot and didn’t necessarily enforce the 14th Amendment.

So a lot of people had a problem with that and they tried to make a stand with Hughes, didn’t work. And so they recalibrated and went after Parker. And Parker had some things in his background that made him a lot less of a perfect candidate than someone like Hughes. Parker had made some racist statements when he was running for governor in North Carolina. He had made some rulings as a judge that Labor didn’t like. And even though he felt like, okay, well, I behaved as a typical candidate at that point and I behaved like a judge following the law. These groups didn’t care and the amounts of the pressure campaign that eventually succeeded. And so it was the first time that grassroots groups had ever successfully blocked a Supreme Court nomination. And you definitely see more of that going forward. And that segues into the brethren.

And like you said at the beginning, Earl Warren is about to step down from being chief justice and he actually tried to step down in 1968 before Nixon became president. So he tried to resign when Johnson was still president. And with my other book, Nixon in New York, how Richard Nixon became, how Wall Street helped Richard Nixon become president or something like that.

Lee Rawles:

It’s how Wall Street helped Richard Nixon

Victor Li:

Win

Lee Rawles:

The White House.

Victor Li:

Thank you. Well, we get into that a little bit too as far as like where Nixon was at that point, where the court was. And Earl Warren and Richard Nixon had a long feud going back to when they were both in California politics. Earl Warren despised Richard Nixon, thought he was dishonest, thought he was a backstabber. And the last thing he wanted was to see Richard Nixon appoint his successor. So he tried to resign when Johnson was still president, and Johnson tried to elevate Abe Fortus, who was associate justice at the time, and who was a very close friend and a former lawyer for Johnson. And the Senate filibustered that, and actually it wasn’t an up and down rejection, but it still kind of counts because they refused to approve him. And so now that had the effect of then giving Nixon a vacancy and not just any vacancy, the chief justice ship as he had to the White House.

And so that was a big deal for him.

Lee Rawles:

Yeah. It’s interesting. I was born in 1980 and grew up as the child of two lawyers in the ’80s and ’90s. And I was around a lot of lawyers, a lot of judges, and I always heard about Robert Bork and how, oh, this is unprecedented. And Robert Bork, this was the first time that anything like this had ever happened. And I remember reading the brethren and hearing from it. I’m like, oh no, this wasn’t the only time a nomination that the president wanted to make to the Supreme Court was scuttled. But I love hearing from you about this so much earlier Judge John J. Parker, and he remained a judge. He just didn’t ascend to the Supreme Court. So shenanigans were going on for a long time in the court. I think one of the things that struck me most first reading this age 20 was it humanized the individual justices in a way I hadn’t considered them before and made me think of them not as Olympian God figures, but oh, these are incredibly fallible human beings.

Was that kind of your experience reading the book?

Victor Li:

Oh yeah. I mean, obviously, I mean, you said to just read the prologue and introduction for this part, but I mean, I don’t think I’m spoiling anything here where it’s a 50-year-old book.

Lee Rawles:

It’s 50-year-old

Victor Li:

Book. Yeah. You definitely see the human side of a lot of these justices and you find out at the risk of courting us magazine, they’re just like us. They’re penny to the same kind of intraoffice gossip, intraoffice politics, bad personal relationships, good personal relationships. Yeah, you read certain personality quirks of certain justices. One of the big figures in this book is William O. Douglas, who was a big liberal justice who was probably one of the most liberal justices ever served on the court. And you find, as you’re reading this, it’s like, okay, even if you admire his politics and you admire his ideology, you read it and you’re like, “Man, this guy was kind of a jerk.” Just the way he treated people and the way he acted and whatnot. And you also kind of come away with the same feelings about other people. I mean, maybe you didn’t like William Renquist because you didn’t like his politics, but then you read the book and you’re like, “Okay, well, he doesn’t seem like a bad guy.

He seems like a cool guy. I just didn’t like his politics.” And the same thing with Brennan. Brandon was very … Even his enemies thought that he was a good guy, he was a good person, someone that they liked being around. So it definitely humanized a lot of these guys because like you said, when you’re, especially for the court back then, this was one of the first books to really take a behind the scenes look at the Supreme Court. I mean, these guys, and they were all guys at that point, they’re on the ivory … They’re very much in their ivory tower, they’re in their court and whatnot. The big marble palace that very much looks like a Grishan temple in Washington DC. And it’s easy to kind of think that, okay, well, these guys are kind of like Mount Olympus. I mean, there’s very little access to them.

They were very private back then. I mean, justices are a little bit more public now, but back then there was very little that was written about any of them. And so this book definitely kind of put a different face on these justices.

Lee Rawles:

And kind of uniquely, you also get to have the perspective on this as a journalist because this is classified nonfiction, et cetera, but neither Bob Woodward nor Scott Armstrong could be in the room when any of these conversations were happening. There was this real history of and commitment to confidentiality, silence about what happened behind the scenes that only the court’s opinions should speak for their thoughts or what goes on behind the scenes. And suddenly you have this expose from one of the co-authors of all the president’s men hits the scene. And I just think about sourcing and how you would get people to talk to you. And certainly you’ve reported in the legal space. I’ve spent a career mostly just as an editor, but I would love to hear your thoughts as a legal journalist.

Victor Li:

Yeah. Yeah. And that’s one of the things, right? Because when the book first came out, people were like, “Oh, who could have broken the America and spoken to these reporters?” Because that’s what it really was. At that point, especially clerks, they weren’t necessarily sworn to secrecy, but they all kind of had that mentality of like, “Okay, well, we can’t reveal the secrets of the court. We have to keep this confidential, whatnot.” And I actually have spoken to people who were clerks on the burger court, not necessarily during this term or during this book. And they would tell them the same thing. It’s kind of like, it was stunning when this book came out because the idea that people would talk to reporters was just so farfetched and so odd. But clearly they did talk to reporters. But actually, if you read the book again as a reporter, there’s some pretty obvious tells as to who the sources were.

I mean, Woodward has come out and admitted that Potter Stewart was probably his main source for, especially amongst the justices. And if you read the book, it’s like, well, yeah, there’s no way he would have been able to get any of the stuff on Stuart without having spoken to him. In the prologue, for instance, Nixon does meet with Potter Stewart to see if he’d be interested in becoming Chief Justice after Warren. And Stewart goes and talks to Nixon about it. Obviously, there’s part of him that is interested, a part of him that is not, and it kind of gets into some of his internal motivations and whatnot, things about his family, things about some things that he had said in the past that maybe he wasn’t sure if they would be used against him and things like that. And so the only way that Woodward would have been able to get that is if he had spoken to Stewart because, I mean, unless, I mean, Nixon did tape all of his conversations and I don’t know if … But at that point, the tapes wouldn’t have been available for him.

So clearly, if you read the book and just the way Stewart is portrayed, Stewart is definitely portrayed as one of the more level-headed members of the court, someone who is very much kind of the voice of reason for a lot of these cases, and that kind of gives it away. Well, obviously he spoke to the reporters, but at the time that wasn’t confirmed. And I mean, ultimately they did confirm it after he died. So reading it as a reporter, you’re reading it and you’re like, okay, well, knowing how you would have to write about these things and put these stories together and whatnot, obviously he was a source for him. But if you’re not a reporter and you don’t know how these things work, then yeah, you probably wouldn’t know how that steward was necessarily a source for him.

Lee Rawles:

Yeah. When first reading it, I did not know that revelation. So rereading it, it’s really fun to pick up every single time. And readers, I encourage you to do this. Every time that Potter Stewart is mentioned, not a lot of unflattering things come out about Potter Stewart in this book, but on first reading it, I also wondered about Justice Blackman being a source just because there were a couple points in the book where

They would say something like, “Oh, blackman thought back to his childhood with Berger and his experience in the Boy Scouts.” And I’m like, “How do you know that? ” But another source was clerks at the time. And I don’t think we know the names of all the clerks who, as you said, broke emerita and talked. But the whole institution of clerkship wasn’t one that I had been familiar with prior to reading the book. And I do think that it’s important in the introduction that they do give a rundown for people who are not lawyers, don’t know about Supreme Court practices, exactly how the Supreme Court functions. But I do wonder too, the clerks are given an awful lot of credit and I wonder how much of that is. Well, your sources are clerks. And so the clerks are talking about how hard they work and how influential they are and there’s truth to that, but also how much.

So it’s really interesting to read the book thinking about, okay, well, this is filtered not only through Bob Woodward and Scott Armstrong’s perspectives, but also through the perspectives of the people who they had access to who were willing to talk.

Victor Li:

Yeah. Yeah. And I mean, because like you, when I first read the book, I didn’t know what a clerk did. I didn’t know what a clerk was, really. I mean, I knew the name, but I figured probably like a lot of people, they probably just did a lot of clerical work. Maybe they kept the calendar, maybe they took some notes or whatever. I didn’t know they were drafting opinions. I didn’t know they were doing all that research, all that stuff. I mean, different justices would use clerks differently. I think actually Douglas was notorious actually for not really relying on his clerks that much when it came to writing. But then someone like Marshall, some were like Warren and some of the other justices, they would rely very heavily on their clerks. So it depended on what justice you were talking about, but still, like the idea that they had that much responsibility was pretty mind boggling to me because it’s like, all right, well, it seems like a lot just for some fresh out of law school kid.

But then again, it’s like once you learn more about clerks, okay, well, these are the creme de la creme of law students. These are the people who, for better or worse, most of them went to Ivy League schools. Most of them graduated at the top of their class. Most of them are brilliant and would probably make for future justice at some point in their own rights. So learning about that was pretty eye-opening for me just because I didn’t know what … I think I just assumed that the justices did all the work just because that’s what they were supposed to do. So I had no idea that that was part of the job for these clerks. And the idea then that, I mean, like you said, obviously they’re filtering it through their point of view, but yeah, but they would have that access to a justice’s inner thoughts, kind of knowing, okay, what’s being said, what’s not being said, and things like that, and they would be able to know what’s going on.

And I’ve never heard anybody say, “Okay, well, I mean, there have been some points of contention with the book, but I’ve never heard anyone say the overall, oh no, they got it wrong,” or, “Oh no, that’s not what happened at all. ” Overall, it seems like the book has held up with a few points here and there, but generally it seems like it’s held up.

Lee Rawles:

We’re going to take a quick break to hear from our advertisers. When we come back to book club, I’ll still be speaking with Victor Lee about the brethren. Welcome back to the Modern Law Library Book Club. I’m here with Victor Lee. You mentioned that the clerks come from the creme de la creme. I think the most disillusioning thing for me reading the book is, I guess I had in my head that before you could be nominated to the Supreme Court, you must be put through basically something like the American Ninja contest except intellectually. And while the clerks may all be creme de la creme,Justices on the Supreme Court can be selected by a president for a multitude of reasons and very rarely is it for just their intellectual prowess. And so that was a little disillusioning to me. I was like, “Wait, they didn’t have to win a being smart contest.” But since you are so familiar with Nixon and we’re prepping people to go into 1969 through 75, can you talk a little bit about how Nixon in particular wanted to reframe the court, what he felt the Warren Court got wrong and how he wanted to remake it?

Victor Li:

Sure. Yeah. So Richard Nixon obviously had his own ideology, had his own agenda. And when he ran for president in 1968, nominally he was running against Hubert Humphrey and George Wallace, but you could argue he was actually running against Earl Warren. He spent much of his time on his stump and during his campaign stops, excoriating the Warren Court, criticizing them for all kinds of things. Basically, he thought that they were creating rights that weren’t supported by the Constitution, stretching clauses beyond their original meaning. He thought that they were too protective of criminal defendants, especially.That was a big thing. He wanted law and order. That was a big part of his stump speech. He wanted to restore law and order to America. He thought that states were being handcuffed as far as being able to run their affairs, especially when it came to civil rights, when it came to desegregation and things like that.

And there was also, let’s be honest, there was also a geographic component too, because he was trying to appeal to the South. He was trying to break Democratic support in the solid south. And so when he ran for president, that was a big part of his appeal, a big part of his identity was he wanted to appoint strict constructionist judges, as he called it, because his claim was that Warren and his brethren were stretching the constitution beyond what it was originally intended for and creating these new rights out of thin air, or maybe just interpreting clauses in ways that they weren’t necessarily meant to be interpreted. And so his argument was, we need judges who will actually look at the constitution and will just stick with what’s written on the paper, which is obviously that’s … I mean, that’s not necessarily … You can always interpret clauses differently, even what’s written on the paper.

But that was his argument, this idea that these judges are just trying to create new laws or trying to protect people that they feel sorry for, and we need to protect what he called the silent majority. So he made very clear, he’s like, “I’m not going to appoint judges like Warren. I’m not going to appoint judges like Douglas, Brennan, people like that. ” He wanted to appointJustices who are going to be more conservative. And Warren Berger was definitely fit that mold. Warren Berger was someone, he was pretty well respected in conservative circles. He was in the DC circuit, which back then and even now is still seen as sort of the stepping stone to the Supreme Court. Warren Berger also looked the part. I mean, we might want to deny this as much as possible, but looking the part does matter when it comes to being chief justice.

You want someone who has that authority, who has that presence, someone who can lead and inspire justices and whatnot to kind of follow where he wants to take the court. Unfortunately, Berger wasn’t necessarily up to the job in that sense and as we’ll uncover throughout the rest of the book. But at the time, he looked like the perfect candidate on paper. He was someone who believed in a lot of things that Richard Nixon believed in. He criticized a lot of the rulings that the Warren Court had handed down. I think he had been actually overturned quite a bit by the Warren Court, which also angered him. And so at the time, he looked like the perfect candidate for Nixon to a point. Someone who would restore order, someone who would bring strict constructionism back to the way the Constitution should be interpreted in their minds.

And the book gets into this very quickly. He wasn’t particularly even scrutinized all that much by the judiciary committee. They pretty much just had, they had a very perfunctory hearing for him. A lot of senators, just including Ted Kennedy, who they were worried about, someone who was very liberal and they were worried that he might go after Berger. They all just deferred and didn’t lay a glove on him. And he actually ended up getting confirmed by, I think along like three dissenting votes, which is kind of unheard of in this day and age. So yeah, I mean, but that was Nixon. That was his goal. And the book does get into a lot of sort of his … When he starts nominating other justices for seats as they come up, he starts running into problems because not all the judges that he picked were perfect on paper the way Berger was.

Lee Rawles:

And when you talk about public perception of the Chief Justice adding legitimacy to the court, there is a moment much later in the book. But as you said, this book was written 50 years ago. This is all history. So I guess warning to anyone who cares about quote unquote spoilers, but there is a moment in here where I really respected this of Berger. Nixon had just stepped down. Gerald Ford was going to be given the oath of office. Berger is on vacation in, I think, Europe. And he tells his wife, “We have to fly back. This is going to be the first president who was not elected because he actually was not vice president during the election. And I need to be there so that people accept this and feel that it is a legitimate transfer of power.” And even though he was a friend of Nixon and Nixon was his guy, he came back to DC, he delivered the oath of office and he lent that legitimacy to the transition of power.

Victor Li:

Yeah. I mean, Warren Berger, he obviously has a lot of critics, people who did not think that he was the most intellectual chiefJustice. When you read more into the book, you find that even his jurisprudence is a little bit hard to figure out because he would vote strategically so he could control the opinion. The chief justice always controls whoever gets the opinion if they’re in the majority because they go by seniority. And so he would do this to kind of make sure that it wasn’t Douglas or Brennan assigning the case. It would be him. So he would assign it to himself or he would assign it to Blackman or he would assign it to someone who’s a little bit more moderate so that way the decision would not be so strong. So it’s hard to even discern what his actual jurisprudence was because he would vote like this.

So you never really knew where he stood on these things. But when it came to appearances, and the book even goes into this, when it came to appearances, he was always on point. He understood what was required of him from a public perspective. And he took that very seriously, maybe a little too much sometimes, but he definitely took it seriously.

Lee Rawles:

As you read the book and sort of form opinions of the personalities of each justice, I feel like I’ve encountered a Warren Berger type in almost every workplace I’ve ever been in. And it’s someone who’s so excited about the administrative side who loves to call a meeting. And I don’t think you or I are particularly having worked with you, I don’t think we’re that type, but it’s very familiar. And he was just like, “Oh my gosh, I am going to institute so many administrative changes at the court and we are going to create a whole new set of rules and procedures.” And the other justices are like, “You just got here.”

Victor Li:

Yeah. I wondered about that too, because here’s the thing, right? I mean, obviously Reinquist was promoted from the associate justice law. So he already had a lot of respect. He already had a lot of people who were like, “Okay, we know what he’s capable of and we like him or we have respect for him or whatnot.” And there have been other justices who have been elevated from like Stone and people like that. But I always wondered about that kind of like, yeah, we saw it with Roberts and we saw it with Berger and even Warren. It’s like, how are you going to go onto a court with all these intellectual giants, like people like Brennan and like Black and like Hugo Black and people like that and just start being like, “Okay, well this is how it’s going to be now. I’m going to tell you you have to do this and you have to do that.

And what are you going to do about it? ” These guys can’t be fired and I mean, yeah, you can mess with their livelihoods in other ways, but these are all justices of the Supreme Court who have been confirmed by the Senate. They’re widely considered to be at the very top of their profession. And we’ve talked about that hasn’t always been the case with some justices, but at this point in our nation’s history, most justice tended to be like people who were very accomplished and people whose qualifications were looked at very strenuously. And the idea that like some newb is going to come onto the court and just be like, “Okay, this is how we’re going to do things now and you’re going to fall in line.” I don’t know, man. I mean, I have to give Berger some credit here. I mean, obviously I’m not the biggest fan of his, but that had to be pretty intimidating.

And so the idea that he was just going to come on there and just start throwing his weight around is like, okay, I guess you have to give him some credit for that. Okay, at least he wasn’t like some shrinking violet who was afraid of his own shadow.

Lee Rawles:

Definitely not. And book club members, you’re going to be reading all about his first year in the next section, which is the 1969 term, and there is friction. So if you haven’t already read the book, that is something to look forward to. We’re going to take another quick break to hear from our advertisers when we return more on the brethren inside the Supreme Court. Welcome back to the Modern Law Library Book Club. Because again, I’ve got a Nixon guy on here. We have to talk about one of the key decisions that was made during this time period, United States versus Nixon. What did you think of how the book, and this is chapters in advance, but how the book talked about the wrangling over how to deliver this unanimous opinion saying Nixon must turn over these tapes. Did this give you insight? What do you think about that, that particular section of the United States versus Nixon?

Victor Li:

So that was probably Berger at his worst, or maybe not at his worst, but you could definitely kind of see where the criticisms come in for Berger, right? So first of all, like you said, at this point, it’s a different court at this point. At this point, Nixon has appointed three other justices to the Supreme Courts. There’s Harry Blackman, Lewis Powell and Requist. So Nixon thought he had a reasonable shot at, if not winning the case, getting a split decision that would allow him to delay things or wiggle out things or maybe so some confusion so he wouldn’t have to turn the tapes over or the transcripts over or anything like that. But one thing that I was impressed by was just the idea that, first of all, even though Renk was clearly probably sympathized with Nixon and whatnot, he knew that he had to recuse himself because he had taken part in some of the formulation of the strategy for how to deal with Watergate and the leaks and the cases and whatnot.

And Rehquist was not someone who necessarily believed in recusing themselves. I think he was actually pretty strongly against justice having to recuse themselves for unnecessary reasons or what he thought were unnecessary reasons. But the fact that he took it seriously to the point that He felt like he had to step down. That was pretty impressive for lack of a better term. But just looking at how the opinion was put together and also seeing where the court has gone since then, it’s definitely interesting. And you definitely come away with the impression that, okay, obviously the decision was a pretty strong decision, eight to nothing, forced Nixon to turn the tapes over, but then you read it and you’re like, okay, it really wasn’t that strong. There were exceptions that were carved in and actually Berger wanted more exceptions that would be carved in to protect the president as long as he was acting in the official scope of his capacities, which then becomes pretty prescient when Trump becomes president.

But then you also look at how the decision was created and you definitely come away with the impression that, okay, well, Berger wasn’t necessarily driving this. He was definitely in damage limitation mode. And it was pretty much Brendan and the others who kind of pushed him to go where they wanted him to go. And you could talk about that being Brennan’s just overall influence, the fact that he was very good at doing things like that. He was very good at putting together the consensus and getting decisions that he agreed with that would have broad support. But you definitely kind of come away thinking, okay, that decision wasn’t as strong as necessarily that final vote or even the ultimate holdings made it seem like it. And we see how things have gone since then. And the Trump administration was able to kind of blow through a lot of those guardrails and get a much stronger decision in their favor from a much different court.

So yeah, it’s not like looking back on that decision. It’s fascinating, obviously, the behind the scenes stuff, but you definitely come away thinking, okay, I can definitely see how they got from US versus Nixon to Trump versus US.

Lee Rawles:

Yeah. It’s absolutely so interesting to read it again now in the 2020s after first reading it in the oughts about where we’ve gone since then. And I think that’s one of the values of going back and seeing what was considered beyond the pale at the time. I also, again and again through this book,

I think the public does feel when a decision is handed down unanimously. Oh, so the court super agreed. They all are fully behind this and they feel strongly about it. And in many of these cases that ended up having a unanimous verdict, it could have fallen apart at any moment. They talk a lot about United States versus Nixon. There were a couple points at which they almost lost unanimity. People almost all wrote their own opinions like with the Pentagon papers. It’s messy. It’s messy. And I think that that is actually one of the real benefits of the brethren is showing people this is how the sausage is made and it is important not to look away from that.

Victor Li:

Yeah. Yeah. And I mean, another thing, again, at the risk of spoiling a 50 year old book, there are a lot of school desegregation cases that the burger court has to deal with. And unanimity had been sort of a tradition going back to Brown. And so you see a lot of that, these justices wanted to maintain that unanimity, even if they disagreed very, very vociferously about … I mean, a lot of the cases deal with busing, a lot of cases deal with desegregation in schools and whatnot. And the idea that they had to maintain that nine, nothing, eight, nothing, whatever scoreline, it kind of becomes a crutch in a lot of ways because then it kind of forces … I think there’s one case where Hugo Black wanted to dissent from it, and Black was a big civil rights, was very, very much a favor of civil rights, but there was something about busting that he didn’t agree with.

And he was going to dissent from it, but then he kind of got talked out of it because he didn’t want to ruin that spirit of unanimity. And so ultimately he went along with the majority, even though he personally had some misgivings. And so yeah, I mean, you definitely kind of see it like these judges,Justices at the end of the day, they’re human and they’re not infallible. They don’t know everything. They’re certainly not Olympus gods. And they’re just like other people. They have motivations, they have their own motivations, they have their own ideologies, they have their own agendas, but sometimes they can be dealt with and they can be handled or they can be … Sometimes they’ll just take one for the team. And this book does a good job of kind of showing that.

Lee Rawles:

Well, Victor, thank you so much for coming on this episode of the Modern Law Library Book Club, talking about the brethren. We want to hear from you, our listeners, as we work our way through this book. Do you have any thoughts about the beginning of this book, anything Victor and I talked about or things that you’re looking forward to us covering in the future? If so, please send us your comments. You can record a voice note, you can just write us an email that we could read online in a future episode, and you can send those to [email protected]. I’ll have a link to that in the show notes, as well as a link to our discussion board on good reads for the Modern Law Library. We can really get into all the details about TheBrethren Inside the Supreme Court by Bob Woodward and Scott Armstrong.

And if you could, please do leave us a review. That helps bring us to the attention of new listeners and continue to do fun things like the Modern Law Library Book Club.