Term Paper on "Inside the Supreme Court"

Term Paper 7 pages (1790 words) Sources: 0

[EXCERPT] . . . .

Brethren: A Critical Book Review

Bob Woodward and Scott Armstrong did in "The Brethren" what no authors have ever done to this extent: They pierced the veil of secrecy and power that is the United States Supreme Court and exposed the daily machinations of this incredibly powerful group of nine scholars to readers' understanding.

The Brethren" deals primarily with seven terms of the Supreme Court, from 1969 through 1975, and this of course is fortuitous. Those seven years were some of the most tumultuous years in American history, primarily because of critical Supreme Court decisions handed down that changed our everyday lives. Some of the decisions during this historic period dealt with such issues as the death penalty, the busing of school children, the release of Nixon's Watergate tapes, abortion and obscenity.

The Brethren" is not just a portrayal of the legal reasoning behind these cataclysmic opinions - no, that can be found in any law journal. In contrast, "The Brethren" is an examination of the political maneuvering, politicking and personalities that made the decisions what they are today - law.

For instance, the book begins with an account of former chief justice Earl Warren taking his Supreme Court clerks to lunch at his club preceded by a few drinks. Chief Justice Warren was arguably the second-most responsible man after Martin Luther King, Jr. For the liberal direction in which our nation headed during the 1970s with regards to civil rights and human liberties.

However, on a personal level, the authors of "The Brethren" reveal that Warren's clerks were uncomfortable that this liberal giant attended a club without any African-American members.

The Brethren" also reveals in that section that Warren was a visionary but not a legal scholar. Warren knew how he wanted cases to turn out, and asked his clerks to map the necessary legal route. He did not care so much for the legal arguments; he was more of a politician than a judge in some ways.

That is just one of the revelations "The Brethren" makes that virtually no other account of the highest court of land lends its readers. As a populace, we often dehumanize our Supreme Court Justices, and assign them an almost mechanical role; of a machine that decides between right and wrong, a machine that is above and beyond the petty politicking in both the upper and lower houses and in the executive branch.

But Woodward and Armstrong reveal that this is not the case at all. The Supreme Court justices are nothing if not human, and their politics played a huge role in the way their cases turned out. Of course, there was always the legal backing - for instance, Warren understands that even once he leaves the Supreme Court, his liberal decisions would not be overturned because of his conservative colleagues' respect for stare decicis, or the idea that a court should not reverse itself.

So, truly, the Supreme Court justices are legal animals, but they are motivated by personality conflicts and politics like everyone else in Washington; and Woodward and Armstrong bring this to light clearly in "The Brethren."

Critical Analysis of "The Brethren"

Our text, "American Courts," in Chapter 13 quotes Johnson and Canon to write, "Courts cannot make policies that stand in opposition to prevailing economic trends or doctrines. When courts try to do so, as the 1937 crisis proved, the judicial policies will be overridden."

The Brethren," however, indicates that this analysis may be lacking. Woodward an Armstrong quote Eisenhower as saying that appointing Warren was the "biggest damned-fool mistake" of his presidency. Warren began to thrown down opinion after opinion in which he railed against big-money power in America, including the Republicans under whose presidencies he functioned, such as Nixon's.

Warren's court did indeed make policy after policy that stood in the way and in opposition to the prevailing economic powers of the time. Old-money Republicans wanted nothing to do with the reforms instituted via Supreme Court opinions during the Warren court, but they had to deal with the ramifications. Far from receiving the moderate justice they thought they were getting, Republicans were now shackled to an uninhibited liberal who challenged their economic and social agenda at every single turn in the road.

The text also mentions in Chapter 13 that, "As for the policy fallout of Brown itself, the results were not encouraging. That the lot of Blacks and other racial minorities is considerably improved over that of thirty years ago cannot be denied. But of itself, Brown met with little compliance. It was not until Congress and the president moved forcefully with economic and other disincentives to racial segregation in education and other areas of American life than any real gains were made. Though Brown could be seen as a catalyst for such change, it was probably little more than that.

Here, Woodward and Armstrong disagree strongly as well. They believe unerringly in the power and influence of the Supreme Court: "Virtually every issue of significance in American society eventually arrives at the Supreme Court. Its decisions ultimately affect the rights and freedom of every citizen - poor, rich, blacks, Indians, pregnant women, those accused of crime, those on death row, newspaper publishers, pornographers, environmentalists, businessmen, baseball players, prisoners and Presidents."

The Brethren" takes the argument that the "catalyst" that the textbook mentions is actually a huge role. The Supreme Court, in Woodward's and Armstrong's eyes, takes the lead on all social movements in America. Especially from such liberal appellate circuits such as the Ninth U.S. Circuit Court of Appeals, the Supreme Court grants cert to some of the most cutting edge social and economic issues facing Americans at any given time.

For instance, on Brown, the Court took the first blow against segregation. If the statistics pointed to by our textbook are correct, the immediate impact was slim, yes, but the decision forced Congress to come in line and draft legislation via the general welfare, necessary and proper and commerce clauses of the Constitution to alleviate the badges of slavery in the United States, first in education, but then in every facet of our interstate society.

The two texts, however, agree on the Court's sociopolitical role. Our textbook notes, "A longstanding tool employed by those in power to legitimate their rule is the creation and diffusion of myth, usually through the manipulation of symbols. Indeed, "law" and "justice" are among the symbols most frequently used to these ends. Thus, courts are established not only to resolve disputes and help govern through policy enunciation and implementation, but also to fulfill the closely related purpose of legitimizing the regime through the diffusion of the myth of equal justice under law."

Woodward and Armstrong agree, in "The Brethren." They repeatedly portray the Supreme Court justices as political icons who seek to legitimize the political party most in line with their set of views through their decisions. This is quite apparent in Burger's comments to Nixon after one of his national addresses. It was quite obvious that Burger had a political agenda, and that his role as a justice was to give that political agenda backbone.

In essence, the Supreme Court in "The Brethren" resolves disputes, yes, but it also serves to legitimize our form of government and the power that the government exerts over Americans.

Just as our gold depository and supply legitimizes our currency and gives it backing, the Supreme Court gives our laws, both criminal and civil, the legitimacy they need such that the people actually pay them heed.

The Warren court in "The Brethren" was the last court, according to Woodward's and Armstrong's analysis, that abandoned this sociopolitical role in favor of forward-thinking jurisprudence. Every other court has stuck steadfastly to the legal precedence that governs their positions, yes, but also has pandered to the concept of the myth of equality and justice in America as understood in our political system.

But this role was not always a part of the Supreme Court. The earliest Court, for instance, wielded very little power and perhaps lays the foundation for the opinion on the Court's relative impotence put forth by our textbook. Few decisions in that period were of great significance. The most important, a 1793 decision upholding federal jurisdiction in a suit brought by South Carolina land speculators against the state of Georgia, was greeted with a storm of protest that culminated in the quick proposal and ratification of the Eleventh Amendment effectively and absolutely overruling the decision.

The rise in importance of the Supreme Court finally began with the 1801 appointment by President John Adams of his ally the secretary of state, John Marshall, to succeed Ellsworth. The appointment was widely seen as reflecting the desire of the Federalists who had lost the recent election to retain control of the judicial branch after Thomas Jefferson and his supporters gained the presidency and Congress, illustrating the extent to which the institutional mechanisms of checks and balances can assited a repudiated political party.… READ MORE

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