The Brethren

Maybe it was inevitable that someone with exper­tise in law & typog­raphy would be drawn into the grav­i­ta­tional pull of our Amer­ican polit­ical moment. (Maybe it’s inevitable that we all will, in a variant of the famous dictum attrib­uted to Warhol.)

A Wash­ington Post reporter recently sought comment from me on the appar­ently droll use of Comic Sans by former Trump attorney John Dowd. I declined comment because 1) Comic Sans hasn’t been funny since 1997, and 2) though I did enjoy Mr. Dowd’s appear­ance in Bob Wood­ward’s book Fear, I’m not convinced history will consider him a figure of comedy, exactly.

Speaking of Wood­ward, this is an oppor­tune moment to recom­mend my all-time favorite book about the courts: The Brethren, by Wood­ward and Scott Armstrong. The book covers the highly conse­quen­tial U.S. Supreme Court terms from 1969–75, including deci­sions about freedom of speech, abor­tion, and Richard Nixon.

Writing or reporting about the Supreme Court is diffi­cult because of the long­standing vow of secrecy among justices and their clerks. Wood­ward and Armstrong, however, got sources within the court to talk. Even Justice Potter Stewart, also known for coining the famous phrase “I know it when I see it”.

Narra­tives of the Nixon endgame often cite the “brave Repub­li­cans” who were “prin­ci­pled and patri­otic” enough to stand up to a pres­i­dent from their own party. But according to The Brethren, bravery had little to do with it. In April 1974, Nixon had refused to comply with a subpoena for certain White House tapes, instead offering edited tran­scripts. (The phrase “exple­tive deleted” was appar­ently popu­lar­ized by these tran­scripts, which used it repeat­edly.) In May, Judge John Sirica ordered Nixon to turn over the tapes. Nixon refused and appealed directly to the Supreme Court. In a unan­i­mous deci­sion on July 24, the Supreme Court ordered Nixon to comply with Sirica’s order. It was only after this deci­sion that Repub­lican members of congress began to discover their “courage”. On August 8, Nixon resigned. But had the Supreme Court gone the other way, the polit­ical outcome might well have been different.

The Brethren makes the case that although politi­cians get most of the head­lines and atten­tion, it’s the federal courts that hold the most concen­trated power in Amer­ican govern­ment. And what might appear to be periph­eral disputes about proce­dure can snow­ball into bigger conse­quences. For that reason, as we sift through the moun­tains of daily coverage, my appel­late-lawyer wife and I pay the most atten­tion to what the judges are doing.

update, 892 days later

One major short­coming of Wood­ward’s book: like most jour­nal­ists of the era, he declined to mention that former Chief Justice William Rehn­quist became addicted to the seda­tive Placidyl due to heavy use between 1971 and 1981. FBI files released in 2007 indi­cated that during Rehn­quist’s stay in a detox program in 1981, he exhib­ited para­noid and delu­sional behavior. Rehn­quist served on the court until his death in 2005.