Keyholing the Supreme Court

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The court has no one who fits that description, as the authors see it. Decisions turn on the shifting votes of "the group," as Stewart calls it, the court's centrist core—Stewart, Powell, White and John Paul Stevens. Harry Blackmun is described as having to struggle to keep up with the court's work load but, growing in self-confidence and independence, he increasingly joins the group. Justice William Rehnquist has the intelligence and the personal charm to be the leader but is too far to the right to consistently swing others. The two leftover liberals from the Earl Warren Court, Thurgood Marshall and William Brennan, are embittered and isolated. In his chambers, Brennan calls the chief "dummy" and rails in dissent with an "acid pen." (Brennan is not, however, above letting a life sentence stand in one case in order to cultivate Nixon appointee Blackmun, even though Brennan believes that the convicted man deserves a new trial.) Marshall, the only black Justice, has given up. "I'm going fishing," he tells his clerks. "You kids fight the battles. What difference does it make? Why fight when you can just dissent?"

Other oldtimers on the court hung on long after they should have retired. Justice Hugo Black, who died in 1971, tried to cover up a stroke suffered while playing tennis; his colleagues began to wonder if he was becoming senile. In one pathetic scene, Justice John Marshall Harlan, once one of the court's leading intellects, was trying to sign a denial for review from his hospital bed. Nearly blind, he signed the bed sheet instead of the document. Justice William Douglas tried to exert influence even after he retired. He attempted to file a dissent in a campaign finance case and asked to have a tenth chair brought into the courtroom when the court heard oral arguments on the death penalty. Brennan, his old liberal ally, had to say no.

The book is sprinkled with homey detail. "What's shakin', chiefy baby?" is Marshall's jocular greeting to a startled Burger. At the height of the Agnew scandal in 1973, Baseball Buff Stewart had his clerks slip him play-by-play bulletins on the National League playoffs between the Cincinnati Reds and the New York Mets as he sat on the bench. One note read: "Kranepool flies to right. Agnew resigns." The Brethren also reports some tantalizing What Ifs. The court came within a vote of, in effect, judicially establishing the Equal Rights Amendment: Stewart held back only because he believed that state legislatures would pass the ERA. Muhammad Ali would have gone to jail as a draft resister had a clerk not persuaded Harlan to read some Black Muslim literature. Convinced that Ali's religious scruples made him a sincere conscientious objector, Harlan switched his vote and others followed: a 4-4 deadlock suddenly became an 8-0 vote to keep Ali free on a technicality.