1 The Brethren: Inside the Supreme Court (New York: Simon & Schuster, 1979).Google Scholar

2 Among these latter, see, e.g., John R. Schmidhauser, The Supreme Court: Its Politics, Personalities, and Procedures (New York: Holt, Rinehart & Winston, 1960); Charles S. Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963); Charles H. Sheldon, The Supreme Court: Politicians in Robes (Beverly Hills, Cal.: Glencoe Press, 1977); Donald L. Horowitz, The Courts and Social Policy (Washington, D.C.: Brookings Institution, 1977); Arthur s. Miller, The Supreme Court: Myth and Reality (Westport, Conn.: Greenwood Press, 1978).Google Scholar

3 See, e.g., Alpheus Thomas Mason, Harlan Fiske Stone: Pillar of the Law (New York: Viking Press, 1956); Walter F. Murphy, Elements of Judicial Strategy (Chicago: University of Chicago Press, 1964); David J. Danelski, The Influence of the Chief Justice in the Decisional Process, in Walter F. Murphy & C. Herman Pritchett, eds., Courts, Judges, and Politics (2d ed. New York: Random House, 1974); Ronald Dworkin, Dissent on Douglas, N.Y. Rev. Books, Feb. 19, 1981, at 38; and most recently Bernard Schwartz, Super Chief: Earl Warren and His Supreme Court–-A Judicial Biography (New York: New York University Press, 1983).Google Scholar

4 Anthony Lewis, Supreme Court Confidential, N.Y. Rev. Books, Feb. 7, 1980, at 4.Google Scholar

5 Woodward & Armstrong, supra note 1, at 3.Google Scholar

6 For reviews emphasizing or documenting this fault, see W. Murphy, Spilling the Secrets of the Supreme Court, Washington Post Book World, Dec. 16. 1979, at I; Joel B. Grossman, Review of The Brethren, 1980 Wis. L. Rev. 429; Lewis, supra note 4; Daniels, William J., The Clerks Talk: Commentary & Analysis of The Brethren, 44 Alb. L. Rev. 732 (1980); What the Journalists Saw, Economist, May 24, 1980, at 121; Robert Bendiner, The Law and Potter Stewart, Am. Heritage, Dec. 1983, at 98.Google Scholar

7 See Daniels, supra note 6; Lewis, supra note 4.Google Scholar

8 Lewis, supra note 4, at 5, 6. Lewis persuasively argued that The Brethren's treatment of the Nixon Tapes case was based on the private papers of Justice Brennan and that their use was unauthorized by Brennan.Google Scholar

9 Economist, supra note 6.Google Scholar

10 Lewis, supra note 4.Google Scholar

11 William O. Douglas, The Court Years, 1939 to 1975: The Autobiography of William O. Douglas 8 (New York: Random House, 1980).Google Scholar

12 See, e.g., Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977), using John Rawls's concept of the “veil of ignorance” to ascertain objectively fair “first principles.”Google Scholar

13 Douglas, supra note 11, at 8. See Dworkin, supra note 3, for this argument.Google Scholar

14 Dworkin, supra note 3.Google Scholar

15 The first characterization is from the London Observer and is quoted in Lewis, supra note 4, at 5. The latter is from 47 Kirkus Revs. 1425 (1979). “What the reader [saw),”the Kirkus reviewer thought, was “a lawless court, ruled by the vanities and proclivities of men.”Google Scholar

16 See Lewis, supra note 4, at 3; Grossman, supra note 6, at 431; Murphy, supra note 6, at 11.Google Scholar

17 David W. Adamany, Review of The Morality of Consent by Alexander M. Bickel, 1977 Wis. L. Rev. 271, 292.Google Scholar

18 Woodward & Armstrong, supra note 1, at 59.Google Scholar

19 See Danelski, supra note 3.Google Scholar

20 See the majority opinion in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 58 (1973): “The …Minority Report of the Commission on Obscenity and Pornography indicates that there is at least an arguable correlation between obscene material and crime” (emphasis added). One irreverent observer has commented that rhi5 view is seriously undercut because not a single justice has been accused of sex crimes.Google Scholar

21 These characterizations of former Justice William O. Douglas appear in Dworkin, supra note 3, at 5–7.Google Scholar

22 Id. at 7.Google Scholar

23 See examples cited supra note 3.Google Scholar

24 Grossman, supra note 6, at 436–38Google Scholar

25 Id. at 432–34.Google Scholar

26 422 U.S. 490 (1975).Google Scholar

27 Id. at 520 (Brennan, J., dissenting).Google Scholar

28 Woodward & Armstrong, supra note 1, at 366.Google Scholar

29 381 US. 479 (1965).Google Scholar

30 Ronald Fiscus, Before the Velvet Curtain: The Connecticut Contraceptive Cases as a Study in Constitutional Law and Supreme Court Behavior (Ph.D. diss., University of Wisconsin–-Madison, 1983). For the revelation of Justice Brennan's authorship, see Schwartz, supra note 3.Google Scholar

31 Woodward & Armstrong, supra note 1, at 442.Google Scholar

32 See, e.g., the testimony of his erstwhile “Minnesota Twin,” Justice Blackmun, in John A. Jenkins, A Candid Talk with Justice Blackmun, N.Y. Times, Feb. 20, 1983 (Magazine), at 20.Google Scholar

33 Perhaps the best example of the recent Court's willingness to fight in public occurred in Engle v. Isaac, 456 U.S. 107 (1982). A month earlier, in Rose v. Lundy, 455 U.S. 509 (1981). the Court, speaking through Justice O'Connor, had appeared to take a middle course in the matter of federal habeas corpus rights. Justice Brennan had carefully concurred. But in Engle the Court, again through O'Connor, seemed to narrow the right further. Justice Brennan bitterly dissented and concluded with a charge that the majority had betrayed the promise of the earlier case: “and so Rose v. Lundy is not applied. Sic transit gloria Lundy! In scarcely a month, the bloom is off the Rose” (at 141). Apparently unfazed, O'Connor wrote a lengthy rebuttal in which she characterized Brennan's position as “incomprehensible” (at 124). Such exchanges are extraordinary by any standard and are inconceivable if the Court were especially concerned with presenting an image of reason and objectivity.Google Scholar

34 Jenkins, supra note 32, at 23.Google Scholar

35 Id. at 20. According to recent press reports, Justice Blackmun has also publicly described the Court as “moving to the right, where it wants to go by hook or by crook,” predicted that Justice O'Connor would become “the most conservative member of the Court,” and described himself, if only jokingly, as “becoming a flaming liberal” on the Court. N.Y. Times, Sept. 22, 1984, at 32.Google Scholar

36 See, e.g., Robert H. Bork, The Court as Best Seller, Public Interest, Spring 1980, at 96. Bork clearly wanted to criticize the Court but wound up criticizing Woodward and Armstrong for not giving him enough information.Google Scholar

37 Anthony Lewis insisted that in The Brethren“[o]n the whole the justices appear as serious, committed men–-imperfect, inevitably unequal to their extraordinary legal-political function but struggling, careful, never cynical.” Lewis, supra note 4, at 4.Google Scholar

38 Economist, supra note 6.Google Scholar