Bob Woodward - The Brethren

One of the final pieces of the Richard Nixon puzzle.

The Last of the President's Men

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Also by Bob Woodward

Plan of Attack

Bush at War

Maestro: Greenspans Fed and the American Boom

Shadow: Five Presidents and the Legacy of Watergate

The Choice

The Agenda: Inside the Clinton White House

The Commanders

Veil: The Secret Wars of the CIA 1981-1987

Wired: The Short Life and Fast Times of John Belushi

The Final Days (with Carl Bernstein)

All the Presidents Men (with Carl Bernstein)

Copyright 1979 by Bob Woodward and Scott Armstrong
All rights reserved,
includes the right of reproduction
in whole or in part in any form.

First Simon & Schuster paperback edition 2005

SIMON & SCHUSTER PAPERBACKS and colophon are registered trademarks of Simon & Schuster, Inc.

Manufactured in the United States of America

10 9 8 7 6 5 4 3 2 1

The Library of Congress has cataloged the hardcover edition as follows:
Woodward, Bob.
The Brethren.
Includes Index.
1. United States. Supreme Court. 1. Armstrong, Scott, Joint Author. II. Title.

ISBN-13: 978-0-671-24110-0

ISBN-10: 0-671-24110-9

ISBN-13: 978-0-7432-7402-9 (Pbk)

ISBN-10: 0-7432-7402-4 (Pbk)
eISBN-13: 978-1-4391-2634-9

To Katharine Graham, Chairman of the Board,
The Washington Post Company,
for her unwavering commitment to an independent press
and the First Amendment.
And to our children, Tali, Thane and Tracey.

Two people labored as long and as hard on this book as the authors.

Al Kamen, a former reporter for the Rocky Mountain News, assisted us in the reporting, writing and editing of this book. He was the chief negotiator and buffer between us. His thoroughness, skepticism and sense of fairness contributed immeasurably. No person has ever offered us as much intelligence, endurance, tact, patience and friendship.

Benjamin Weiser, now a reporter for The Washington Post, helped in the research, writing, editing and reporting. A devoted and resourceful assistant, no one could have been more loyal and trusted.

This book is as much theirs as ours.

This book has two sponsors, Benjamin C. Bradlee, the executive editor of The Washington Post, and Richard Snyder, president of Simon and Schuster. Without their support and encouragement this book would have been impossible. No other newspaper editor or book publisher would have been as willing to assume the risks inherent in a detailed examination of an independent branch of government whose authority, traditions and protocols have put it beyond the reach of journalism.

At Simon and Schuster, we also owe special thanks to Sophie Sorkin, Frank Metz, Edward Schneider, Wayne Kirn, Gwen Edelman, Alberta Harbutt, Joni Evans, Harriet Ripinsky.

To Alice Mayhew, our editor, we give our respect and affection for her constant support and guidance as she nurtured this book to completion.

At The Washington Post we also thank Katharine Graham, Donald Graham, Howard Simons, the late Laurence Stern, Elizabeth Shelton, Julia Lee, Carol Leggett, Lucia New, Rita Buxbaum, Adam Dobrin.

A critical reading and numerous suggestions were provided by Karen De Young, Marc Lackritz, Ann Moore, Jim Moore, Bob Reich, Ronald Rotunda, Bob Wellen and Douglas Woodlock.

Tom Farber helped greatly with suggestions and writing.

Milt Benjamin, our colleague at the Post, devoted several months to recrafting, editing and rewriting the initial drafts. We will never be able to thank him enough.

We owe and give our greatest thanks to our sources.

Washington, D.C.
August 1979

THE UNITED STATES SUPREME COURT, the highest court in the land, is the final forum for appeal in the American judiciary. The Court has interpreted the Constitution and has decided the countrys preeminent legal disputes for nearly two centuries. Virtually every issue of significance in American society eventually arrives at the Supreme Court. Its decisions ultimately affect the rights and freedom of every citizenpoor, rich, blacks, Indians, pregnant women, those accused of crime, those on death row, newspaper publishers, pornographers, environmentalists, businessmen, baseball players, prisoners and Presidents.

For those nearly two hundred years, the Court has made its decisions in absolute secrecy, handing down its judgments in formal written opinions. Only these opinions, final and unreviewable, are published. No American institution has so completely controlled the way it is viewed by the public. The Courts deliberative processits internal debates, the tentative positions taken by the Justices, the preliminary votes, the various drafts of written opinions, the negotiations, confrontations and compromisesis hidden from public view.

The Court has developed certain traditions and rules, largely unwritten, that are designed to preserve the secrecy of its deliberations. The few previous attempts to describe the Courts internal workingsbiographies of particular Justices or histories of individual caseshave been published years, often decades, after the events, or have reflected the viewpoints of only a few Justices.

Much of recent history, notably the period that included the Vietnam War and the multiple scandals known as Watergate, suggests that the detailed steps of decision making, the often hidden motives of the decision makers, can be as important as the eventual decisions themselves. Yet the Court, unlike the Congress and the Presidency, has by and large escaped public scrutiny. And because its members are not subject to periodic reelection, but are appointed for life, the Court is less disposed to allow its decision making to become public. Little is usually known about the Justices when they are appointed, and after taking office they limit their public exposure to the Courts published opinions and occasional, largely ceremonial, appearances.

The Brethren is an account of the inner workings of the Supreme Court from 1969 to 1976the first seven years of Warren E. Burgers tenure as Chief Justice of the United States. To ensure that our inquiry would in no way interfere with the ongoing work of the Court, we limited our investigation to those years. We interviewed no one about any cases that reached the Court after 1976.

We chose to examine the contemporary Court in order to obtain fresh recollections, to deal with topical issues and to involve sitting Justices. This book is not intended as a comprehensive review of all the important decisions made during the period. The cases we examine generally reflect the interest, time and importance assigned to them by the Justices themselves. As a result, some cases of prominence or importancebut which provide no insight into the internal dynamics of the Courthave been dealt with only briefly or not at all. The Court conducts its business during an annual session called a